case_number,case_name,category,court_name,court_level,judges,decision_date,year,filing_county,legal_domain,parties,media_neutral_citation,summary_text,introduction_and_background,analysis_and_determination,outcome,source_url
Family Miscellaneous Application E002 of 2025,Borde v Shige (Family Miscellaneous Application E002 of 2025) [2025] KEHC 4424 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Marsabit,High Court,FR Olel,8 April 2025,2025.0,Marsabit,Family,Shukri Shige Borde v Hawo Hussein Shige,[2025] KEHC 4424 (KLR) ,,"The applicant did file his Notice of motion Application under provisions of Section 34,45,47 and 83 of the law of succession Act, Order 40 Rule 1(a) and 4 of the Civil procedure Rules and Article 40 of the Constitution of Kenya and sought for Orders that;
a.
Pending the hearing and determination of this Application, this Honourable court be pleased to issue a temporary injunction restraining the Respondents, their agents, servants and/or employees from intermeddling and/or interfering, wasting, constructing on or howsoever dealing with parcels of land at Dakabaricha sagante (121), a land at Dirib Gombo and residential home occupied by the widow which form part of the Deceased Estate.
b.
This Honourable court be pleased to order for an audit of the entire Deceased estate since his demise to be conducted by a reputable audit firm.
c.
Pending the hearing and determination of this Application, this Honourable court be pleased to issue an order preserving the Deceased Estate.
2.
This application is supported by the grounds stated on the face of the said Application and the supporting affidavit of the applicant where he depones that matters relating to the estate of the deceased had been determined by the Kadhi, vide Marsabit Succession cause No E1 of 2023, and the respondent being dissatisfied had appeal against the said decision vide Marsabit High court civil Appeal No E003 of 2023, yet she was a stranger to the estate and had not even been listed as a beneficiary by their Area chief.
3.
The applicant further averred that the respondent was selling estate property to third parties and was therefore unlawfully intermeddling with the deceased estate. He therefore urged the court to intervene and issue the orders sought as the estate beneficiaries would to suffer irreparable loss and damage should the respondent be allowed to continue with her unlawful activities.
4.
In response, the respondent did file her replying affidavit dated 10th March 2025, where she averred that the Kadhi’s decision on distribution of the estate was set aside by the honorable judge in Marsabit High court, Civil Appeal No E003 of 2023 and the applicant had neither filed an appeal to the court of appeal or sought to review the said judgment. The upshot was that the applicant was neither an administrator nor had the capacity to sue as such.
5.
Secondly, the respondent averred that the applicant had not provided any evidence to prove that the properties referred too, belonged to the estate and/or proof of their sale. The issue of intermeddling with estate property was therefore mute. She prayed that the this application be dismissed with costs.","6.
I have considered the application and response filed. The judgment issued by the kadhi in Marsabit Kadhi’s Succession cause No E001 of 2023 was set aside by the Honorable judge in Marsabit High court Civil Appeal No E003 of 2023 and he did direct that the Kadhi’s court file be forwarded to the High court, Marsabit for hearing and determination.
7.
The applicant should have filed this application in the succession file, to be forwarded to this court and not seek substantive orders in a Miscellaneous Application filed not hinged on any substantive suit. See Rajab Kosgei Magut Vrs Nuru Jepleting choge (2020) eklr, J P Machira T/A Machira & co Advocates Vrs Wachira Waruru & Another (2007) eklr and County government of Machakos Vrs Export processing zone Authority
8.
Be that as it may, the application filed must also fail as the applicant has not proved that the property referred to belongs to the estate and/or that the respondent has interfered/intermeddled in any manner with the said estate. No injunctive orders can therefore issue as prayed for.
9.
The upshot is that the notice of motion application dated 7th February 2025 lacks merit and is dismissed with costs to the Respondent.
10.
It is so Ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4424/eng@2025-04-08
Civil Appeal E078 of 2021,Busienei v Lizano Limited (Civil Appeal E078 of 2021) [2025] KEHC 4483 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Eldoret,High Court,E Ominde,8 April 2025,2025.0,Uasin Gishu,Civil,Richard Kipruto Busienei v Lizano Limited,[2025] KEHC 4483 (KLR)  ,,"1.
This is an appeal arising from the decision of Honourable Christine Menya (SRM) delivered on 18/07/2021 in Eldoret Chief Magistrate’s Court, Civil Suit No. 704 of 2018.
2.
By a Plaint dated 29/06/2018, the Respondent herein sued the Appellant seeking special damages of Kshs.1,305,000/=, an interest of 10% per day until payment in full as from 7/05/2018, costs of and incidental to this suit and any other relief that the Honourable Court may deem fit and just too grant.
3.
The Appellant filed a Statement of Defence dated 26/06/2018 denying the averments by the Respondent.
4.
The case then proceeded for trial and by its Judgment delivered on 18/06/2021, the Court found in favour of the Respondent and ordered for specific performance to the effect that the Appellant was ordered to pay for the value of the fertilizer he took and used from the Respondent to the tune of Kshs.1,305,000/=, the trial Court further observed that clause (e) of the said agreement provided that in case of breach, the Appellant was liable to pay the company 10% interest per day until the payment was made in full and proceeded to make a finding that there was no proof that the said clause was amended and therefore ordered that in addition to the purchase price, the Appellant do pay an additional 10% interest until payment in full as from 7/05/2018 till the said sum is complete. The trial Court also awarded the Respondents costs and interest of the suit at Court rate as from the date of the judgment until payment in full.
5.
Being dissatisfied with the decision of the trial Court, the Appellant lodged the Memorandum of Appeal dated 13/07/2021 on 14/07/2021 listing the grounds of appeal as:
1.
That the trial Magistrate erred in law and fact by finding that there was a valid binding contract.
2.
That the trial Magistrate erred in law and fact by failing to observe that the Agreement dated 11/04/2018 offended the provisions of Section 3 of the Companies Act.
3.
That the trial Magistrate erred in law and fact by failing to observe that the Agreement dated 11/04/2018 offended the provisions of Section 35(1) and 37 (2) of the Companies.
4.
That the trial Magistrate erred in law and fact by failing to observe that the Agreement dated 11/04/2018 offended the provision of order 4 Rule 4 of the Civil Procedure Rules
5.
That the trial Magistrate erred in law and fact by failing to observe that there was no company resolutions sanctioning the commencement of the suit and appointing of the Advocate on record for the Respondent.
6.
That the trial Magistrate erred in law and fact by failing to observe that the Plaintiff had not pleaded particulars of breach as required under Order 2 Rule 4 of the Civil Procedure Rules 2010.
7.
That the trial Magistrate erred in law and fact by failing to observe that the Agreement dated 11/04/2018 offended the provisions of Section 16 and 16 A of the Banking Act on the issue of interest.
8.
That the trial Magistrate erred in law and fact by failing to observe that the trial Court was bereft of jurisdiction.
9.
That the trial Magistrate erred in law and fact by failing to observe that the Agreement dated 11/04/2018 offended the provision of Section 3 of the Contract Act.
10.
That the trial Magistrate erred in law and fact by failing to consider that the suit was bad in law and incurable defective.
11.
That the trial Magistrate erred in law and fact by failing to consider the Defendant’s Submissions.
12.
That the trial Magistrate erred in law and fact generally.","43.
As the first appellate Court, the role of this Court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See the case of Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123). This Court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga –versus- Kiruga & Another (1988) KLR 348).",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4483/eng@2025-04-08
Arbitration Cause E005 of 2024,Cape Suppliers Limited v Villa Care Limited (Arbitration Cause E005 & E014 of 2024 (Consolidated)) [2025] KEHC 4497 (KLR) (Commercial and Tax) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Commercial Courts),High Court,BM Musyoki,8 April 2025,2025.0,Nairobi,Commercal and Tax,Cape Suppliers Limited v Villa Care Limited,[2025] KEHC 4497 (KLR)  ,,"
1.
On 19-03-2024, Honourable Justice P.M. Mulwa made an order consolidating the two causes herein. When the parties’ advocates appeared before me on 25-11-2024, they told me that they had filed their submissions which covered both matters. However, after going through the submissions, I discovered that the applicant in arbitration cause number E005 of 2024 says nothing about arbitration cause number 014 of 2024. its submissions filed in arbitration cause number E014 of 2024 are of a totally different matter relating to taxation. Nevertheless, this ruling will cover both applications.
Application dated 18th January 2024 in Miscellaneous E005 of 2024
2.
The application prays for the following orders;
1.
Spent.
2.
There be a stay of adoption and recognition of the arbitral award dated 10th February 2023 but published and released by the sole arbitrator- Mr. Kevin Tom Mogeni on 20th December 2023, pending the hearing and determination of this application.
3.
The arbitral award dated 10th February 2023 but released by the sole arbitrator Mr. Kevin Tom Mogeni and received by the parties on 20th December 2023 be set aside.
4.
The costs of this application be borne by the respondent.",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4497/eng@2025-04-08
Civil Appeal E001 of 2022,Chepkemboi v Nangila & another (Suing as the Legal Representatives and Administrators of the Estate of Meshack Wafula Simiyu (DCD)) (Civil Appeal E001 of 2022) [2025] KEHC 4479 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Kitale,High Court,RK Limo,8 April 2025,2025.0,Trans-Nzoia,Civil,Kathleen Chepkemboi v Metrine Nangila & Joyce Mudeizi,[2025] KEHC 4479 (KLR) ,,"
1.
This is an appeal against the judgment of Hon. M.I.G Moranga Senior Principal Magistrate delivered on 29/9/2021 vide Kitale CMCC No.95 of 2019.
2.
In that case the respondents suing as legal representatives and administratrixes of the estate of Meshack Wafula Simiyu (dcd) had brought an action against the appellant blaming her/her agent or driver for causing an accident on 21/5/2018 while driving motor vehicle Reg No.KBH 781W within Kitale town. The appellant’s driver was blamed by the respondents for knocking down the deceased who was riding a motor cycle Reg No. KMEH 054Q as a result of which he sustained fatal injuries from which he later succumbed while undergoing treatment.
3.
A brief overview of the case before the subordinate court shows that the respondents’ case with respect to liability mainly hinged on the evidence of a traffic police officer named PC Philip Metios (PW2). This is because there was no eye witness availed by the respondents to testify.
4.
The traffic officer (PW2) told the trial court that he was not the investigating officer but had the details of how the accident occurred from the police file. He stated that the appellant’s driver left his lane and drove onto the right side and collided with a motor bike ridden by the deceased. He stated that the driver was charged with careless driving and the traffic case was ongoing.
5.
On quantum, the evidence tendered was that the deceased was aged 27 years and was a boda boda rider earning a salary of 3000/- per month. There was no documentary evidence to prove the same however the respondent stated the deceased supported his wife, two children and a younger sister from the income he earned.
6.
The appellant called the driver of the suit motor vehicle at the time namely Edward Masai (DW1). He conceded that the accident occurred but disputed the date insisting that it occurred on 28/5/2018 and not 21/5/2018. According to him the accident happened between 5am and 6am and that he was driving the suit motor vehicle within Kitale Town when he spotted 2 bodaboda riders who were on the right side and that they spotted a passenger and both rushed for the passenger. He stated that one made a U-turn suddenly and because he was too close he tried swerving but unfortunately he hit him. He denied being drunk or over speeding. He however, admitted that he was charged with a traffic offence because of the accident. He blamed the rider (dcd) for causing the accident by making a sudden U-turn. He stated that he took the deceased to Kitale Referral Hospital and later assisted him to be transferred to Moi Teaching and Referral Hospital Eldoret where he unfortunately died 2 days thereafter.
7.
The trial court evaluated the evidence tendered and found that the respondents had proved their case against the appellant and found the appellant 100% liable for the accident. On quantum the trial court found that because there was no documentary evidence to prove the income of the deceased he resorted to the minimum wage guidelines which stipulated that the minimum wage for the category of persons working where the deceased worked was Kshs. 7,241 . It adopted the ratio of 2/3 and multiplier of 30 years given that the deceased was aged 27 years old at the time. The trial court in summary made the following awards under different heads;
i.
Pain and suffering - 100,000/-
ii.
Loss of expectation of life - 100,000/-
iii.
Loss of dependency -1,737,840/-
iv.
Special damages - 40,870/-
v.
Funeral expenses - 70,000/-
Total 2,071,330/-",,Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4479/eng@2025-04-08
Customs Tax Appeal E026 of 2024,Commissioner Customs and Border Control v Ripple Mart Limited (Customs Tax Appeal E026 of 2024) [2025] KEHC 4477 (KLR) (Commercial and Tax) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Commercial Courts),High Court,BM Musyoki,8 April 2025,2025.0,Nairobi,Commercal and Tax,Commissioner Customs and Border Control v Ripple Mart Limited,[2025] KEHC 4477 (KLR) ,,"
1.
A desk review of imports by the respondent for the period between 2nd August 2018 and 8th February 2022 was said to have revealed a short of levy taxes due from the respondent as a result of application of a wrong duty rate. Following the desk review, the appellant on 1-02-2022 and 7-02-2022 sent letters to the respondent demanding the said levies. The respondent applied for review of the decision and before the appellant could make a decision on the objection, the respondent rushed to the Tax Appeals Tribunal to challenge that decision vide appeal number 193 of 2022. In that appeal, the tribunal noted that the appeal was filled before the appellant’s decision on the application for review was made and could therefore not have been in respect of that review as a taxpayer can only appeal after determination of application for review. The tribunal therefore noted that there was no appealable decision and struck out the appeal.
2.
As the above appeal was pending, the respondent made its decision on application for review on 15th March 2022. On 5th June 2023, the appellant issued a demand for payment of Kshs 16,749,855.00 stating that the judgement in the TAT appeal number 193 of 2022 had been delivered in its favour. By a letter dated 8th June 2023, the respondent through its advocates filed an objection to that demand. In reply to the objection, the appellant wrote a letter dated 7th July 2023 in which it communicated that the Commissioner had already issued its review decision on the issue vide its letter dated 15th March 2022 and sought to clarify that the application for review was unsuccessful and attached a copy of the decision. It is against the letter that the appeal before the tribunal in the matter now before this court was premised.
3.
The tribunal rendered its judgement on 24-05-2024 where it allowed the appeal and held that the application for review by the respondent had been deemed allowed by operation of the law pursuant to Section 229(5) of East African Community Customs Management Act (hereinafter referred to as ÉACCMA). It is this decision which sparked this appeal whose grounds are as follows;
1.
That the Honourable Tribunal erred in law by failing to objectively consider the appellant’s pleadings and submissions that there is no appealable decision for its jurisdiction.
2.
That the Honourable Tribunal erred in law and in fact in its findings that the appellant’s application for review had been allowed by operation of the law.
3.
That the Honourable Tribunal erred in its finding that the appellant did not communicate the review decision in accordance with the provisions of Section 229(4) of EACCMA.
4.
That the Honourable Tribunal erred in law and fact in its finding that the review decision dated 15th March 2022 was transmitted on 7th July 2023.
5.
That the Honourable Tribunal erred in fact and law by shifting the primary burden of proof to the Commissioner to demonstrate that the review decision dated 15th March 2022 was transmitted to the respondent on time when there is no denial of the postal address.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4477/eng@2025-04-08
Income Tax Appeal E196 of 2023,Commissioner of Domestic Taxes v Imperial Industry Park Company Limited (Income Tax Appeal E196 of 2023) [2025] KEHC 4475 (KLR) (Commercial and Tax) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Commercial Courts),High Court,BM Musyoki,8 April 2025,2025.0,Nairobi,Commercal and Tax,Commissioner of Domestic Taxes v Imperial Industry Park Company Limited,[2025] KEHC 4475 (KLR)  ,,"
1.
The appellant conducted investigations on the respondent’s tax affairs for the period between January 2017 and December 2020. The appellant claimed that the respondent had failed to declare or had under-declared its income tax and VAT for the said period. Upon investigations, the appellant issued an additional assessment on 29-11-2021 to which the respondent did not object in time. On an application by the respondent, the appellant on 9-03-2022 allowed filing of late objection following which the respondent filed the objection to the assessment on 18-03-2022. The appellant did not respond to the objection until 5-08-2022 where it confirmed the income tax assessment of Kshs 42,104,924.00 and Kshs 123,653.00 for VAT.
2.
The respondent lodged an appeal before the tribunal challenging the appellant’s decision dated 5-08-2022. In its judgment, the tribunal held that the letter dated 5-08-2022 which it referred to as invalidation notice was issued out of time and therefore invalid by virtue of section 51(4) of the Tax Procedures Act and consequently the issue of correctness of the assessment had been overtaken by events as the objection was considered to have been allowed by the operations of the law. The appellant was aggrieved with this decision and has approached this court on the following grounds of appeal;
1.
The tribunal erred in law and fact by failing to consider the merits of the appeal and focused on technicalities of timelines for issuing an objection decision.
2.
The tribunal erred in law and fact by setting aside the respondent’s (sic) decision dated 5th August 2022 where it confirmed the assessment on income tax and VAT for Kshs 42,104,924.00 and Kshs 123,653.00 respectfully, which taxes are due and payable.
3.
The tribunal erred in failing to determine whether the respondent’s additional assessment was justified and payable and in holding that the same was overtaken by events.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4475/eng@2025-04-08
Income Tax Appeal E041 of 2022,Commissioner of Domestic Taxes v Odanga (Income Tax Appeal E041 of 2022) [2025] KEHC 4413 (KLR) (Commercial and Tax) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Commercial Courts),High Court,BM Musyoki,8 April 2025,2025.0,Nairobi,Commercal and Tax,Commissioner of Domestic Taxes v Odanga,[2025] KEHC 4413 (KLR) ,,"
1.
The appellant was dissatisfied with the decision of the Tax Appeals Tribunal dated 4th March 2022 in its appeal number 332 of 2018 which decision dismissed the appellant’s application dated 12th October 2021 which sought to review judgement of the tribunal dated 10th September 2021. The appellant had sought to review the said judgement on the ground that there was a mistake apparent on the face of the record. In the memorandum of appeal dated the 26th of April 2022 the appellant contends that;
a.
The tribunal erred in law and fact by failing to consider the appellant’s submissions on income tax with regard to its application for review.
b.
The tribunal erred in law and fact by failing to consider the appellant’s statement of facts and the supporting documents thereto which were all on income tax.
c.
The tribunal erred in law and fact by failing to note that the taxes in dispute related to income tax although the appellant had erroneously stated in some paragraphs that the tax in issue was VAT.
d.
The tribunal erred in law and fact by failing to consider the arguments of the appellant made in both the statement of facts and submissions and thereby reaching at an erroneous judgment.
e.
The tribunal erred in both fact and law by failing to consider the relevant material evidence placed before it and thus arriving at a wrong conclusion.
f.
The tribunal erred when it framed wrong issues for determination thus asked itself the wrong questions and in so doing arrived at a wrong conclusion.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4413/eng@2025-04-08
Income Tax Appeal E112 of 2024,Commissioner of Investigations & Enforcement v Doshi Enterprises Limited (Income Tax Appeal E112 of 2024) [2025] KEHC 4501 (KLR) (Commercial and Tax) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Commercial Courts),,BM Musyoki,8 April 2025,2025.0,Nairobi,Commercal and Tax,Commissioner of Investigations & Enforcement v Doshi Enterprises Limited,[2025] KEHC 4501 (KLR) ,,"1.
The appellant commenced investigations on the respondent’s declared income for period between April 2015 and March 2020 upon which it issued the respondent with a notice of assessment demanding corporation tax of Kshs 59,120,592.00 and Value Added Tax of Kshs 28,600,371.00. The appellant objected to the assessment through a letter dated 26-07-2023 following which the appellant made an objection decision dated 23-09-2023 in which it confirmed corporate tax and VAT totaling to Kshs 87,720,963.00. The respondent reacted by filing appeal before the tax appeals tribunal and in its judgment dated 22-03-2024, the tribunal allowed the appeal and set aside the appellant’s objection decision.
2.
The above judgment sparked this appeal in which the appellant has raised the following grounds;
1.
The Honourable Tribunal erred in law in finding that the respondent discharged its burden of proof in accordance with section 56(1) o the Tax Procedures Act in total disregard of the appellant’s submissions which rebutted the respondent’s assertions.
2.
The Honourable Tribunal erred in law in finding that the respondent discharged its burden of proof in accordance withs Section 56(1) of the Tax Procedures Act yet the respondent only provided ledgers as opposed to bank statements which was the basis of the assessment.
3.
The Honourable Tribunal erred in law in finding that the respondent had discharged its burden of proof in accordance with Section 56(1) of the Tax Procedures Act with regard to alleged loans received from Manav foundation yet no single documentation was provided in support of the alleged loan.
4.
The Honourable Tribunal erred in law in finding that the respondent had discharged its burden of proof in accordance with Section 56(1) of the Tax Procedures Act in total disregard of the fact that the respondent did not produce any evidence in support of assertion that exchange losses were incurred wholly and exclusively in the production of income.
5.
The Honorable Tribunal erred in law in finding that the respondent had discharged its burden of proof in accordance with Section 56(1) of the Tax Procedures Act yet the respondent did not provide any evidence to demonstrate that some of the funds received were from the sale of dollars to its related entity Doshi Hardware.
6.
The Honourable Tribunal erred in law in failing to find that the burden of proof was on the respondent to explain all the income in their bank statement.
7.
The Honourable Tribunal erred in law in failing to consider the evidence and appellant’s submissions placed before it and violated the appellant’s right to fair hearing granted under Article 50(1) and 50(2) of the Constitution of Kenya.
8.
The Honourable Tribunal erred by finding that the appellant did not request for further documents from the appellant after receipt of the notice of objection contrary to section 56(1) of the TPA which places the burden of proof on the respondent.
9.
The Honourable Tribunal erred in law and fact in failing to exercise its powers to refer the matter back to the appellant for consideration in the event the respondent provided documents before the tribunal which had not been availed to the appellant contrary to section 29(2)(3)(c)(ii) of the Tax Procedures Act.
10.
The Honourable Tribunal erred in law and fact in misapplying section 51(11) to mean it has the same connotation with section 51(4) of the Tax Procedures Act.",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4501/eng@2025-04-08
Income Tax Appeal E031 of 2023,Dutch Flower Group Kenya v Commissioner of Domestic Taxes (Income Tax Appeal E031 of 2023) [2025] KEHC 4498 (KLR) (Commercial and Tax) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Commercial Courts),High Court,BM Musyoki,8 April 2025,2025.0,Nairobi,Commercal and Tax,Dutch Flower Group Kenya v The Commissioner of Domestic Taxes,[2025] KEHC 4498 (KLR),,"
1.
This matter was set for a judgment but I will instead deliver a ruling for reason stated hereafter.
2.
The appellant filed this appeal challenging judgement of the tax appeals tribunal dated 10-02-2023. The appeal before the tribunal sought to set aside objection decision of the respondent dated 17th May 2022 in which the respondent upheld its decision to reject refund for VAT input claim made by the appellant in respect of services offered to Flower Retail Europe BV (hereinafter referred to as FRE) and Flower Connect Holdings BV (hereinafter referred to as ‘FCH’) between the period of October 2019 and January 2020.
3.
The borne of contention before the tribunal was the nature of the relationship between the appellant and FRE and FCH. Whereas the appellant maintained that it was a service provider to the two companies, the respondent took position that the relationship was that of principal and agent with the appellant being the agent and the two companies principals. That difference in the definition of the relationship is the whole cause of dispute. In its judgement the tribunal in the part I consider relevant to this ruling stated as follows;
‘The tribunal has also taken note that the same issues were adjudicated on between the same parties in the High Court Income Tax Appeal No. E101 of 2020 Commissioner of Domestic Taxes -vs- Dutch Flowers Group Kenya Ltd arising out of an appeal from TAT No 9 of 2018- Dutch Flowers Group Kenya Ltd -vs- Commissioner of Domestic Taxes……..’",,Struck Out,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4498/eng@2025-04-08
Miscellaneous Application E175 of 2024,Gaceru v CM Advocates LLP (Miscellaneous Application E175 of 2024) [2025] KEHC 4488 (KLR) (Family) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,H Namisi,8 April 2025,2025.0,Nairobi,Family,Njeri Gaceru v CM Advocates LLP,[2025] KEHC 4488 (KLR) ,,"1.
Before the Court is Chamber Summons dated 20 August 2024 seeking the following orders:
i.
(spent)
ii.
That the Respondent/Applicant be granted leave to file an Objection to the taxation and/or reference out of time to this Honourable Court against the Ruling of the Honourable Court’s taxing Officer delivered on the 23 August 2023 by Hon. Lesootia Saitabau, Deputy Registrar;
iii.
That upon the grant of prayer 2 above, the Honourable Court be pleased to order that the Honourable Taxing Officer decision on taxation delivered on the 23 August 2023 and all other subsequent processes be set aside and the Bill of Costs dated 19 January 2023 be taxed by the Court and/or remitted for taxation by another taxing officer other than Hon. Lesootia Saitabau, Deputy Registrar;
iv.
That the grant of prayers 2 and 3 above do operate as a stay of execution of the ruling of the Taxing Officer above;
v.
That this Honorable Court be pleased to grant stay of execution of the judgement and decree entered against the Defendant/Respondent and/or any further proceedings in High Court Miscellaneous Application No. E015 of 2023 or any subsequent orders therefrom pending the hearing and determination of this Application;
vi.
That costs of this Application be provided for;
2.
The Application is supported by the Affidavit sworn by the Applicant and premised on the grounds of the face of it.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4488/eng@2025-04-08
Commercial Appeal E722 of 2023,Gathuka Ngugi Advocates v Backlite Limited (Commercial Appeal E722 of 2023) [2025] KEHC 4474 (KLR) (Commercial and Tax) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Commercial Courts),High Court,BM Musyoki,8 April 2025,2025.0,Nairobi ,Commercal and Tax,Gathuka Ngugi Advocates v Backlite Limited,[2025] KEHC 4474 (KLR) ,,"
1.
For purposes of record and clarity, I have noted that this matter has since inception been prosecuted alongside this court’s miscellaneous application number E738 of 2023. The orders given in this ruling shall therefore apply in the said application with the necessary modifications.
2.
This matter was an advocates/client bill of costs filed by the applicant, an advocate who represented the respondent in milimani chief magistrate’s court commercial case number E275 of 2021. The respondent raised a preliminary objection to the taxation on grounds that there was a retainer agreement between the parties and as such, the court had no jurisdiction to tax the bill of costs pursuant to Section 45 of the Advocates Act. By a ruling delivered on 25th June 2024, the taxing officer Honourable Noelle Kyanya held that there was admission of the retainer agreement in the applicant’s submissions dated 20-03-2024 and in that case, she had not jurisdiction to tax the bill of costs and she proceeded to dismiss the bill of costs.
3.
Following the aforesaid ruling, the applicant filed chamber summons dated 1st August 2024 to which this ruling relates. In the chamber summons the applicant prays for the following orders;
1.
The Honourable Court be pleased to enlarge the time within which the applicant can institute the proceedings herein.
2.
The ruling of the taxing master delivered on 25th June 2023 in so far as the same relates to the reasoning and determination pertaining to the applicant/advocates bill of costs dated 16th August 2023 be set aside.
3.
The Honourable Court be pleased to re-tax the advocate’s bill of costs dated 16th August 2023.
4.
In the alternative and without prejudice to the foregoing, this Honourable Court be pleased to refer the matter back for re-taxation of the advocates bill of costs dated 16th August 2023 with proper and appropriate directions thereon.
5.
The costs of the application be awarded to the applicant.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4474/eng@2025-04-08
Commercial Appeal E738 of 2023,Gathuka Ngugi Advocates v Backlite Limited (Commercial Appeal E738 of 2023) [2025] KEHC 4415 (KLR) (Commercial and Tax) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Commercial Courts),High Court,BM Musyoki,8 April 2025,2025.0,Nairobi,Commercal and Tax,Gathuka Ngugi Advocates v Backlite Limited,[2025] KEHC 4415 (KLR)    ,,"
1.
For purposes of record and clarity, I have noted that this matter has since inception been prosecuted alongside this court’s miscellaneous application number E722 of 2023. The orders given in this ruling shall therefore apply in the said application with the necessary modifications.
2.
This matter was an advocates/client bill of costs filed by the applicant, an advocate who represented the respondent in milimani chief magistrate’s court commercial case number E5044 of 2020. The respondent raised a preliminary objection to the taxation on grounds that there was a retainer agreement between the parties and as such the court had no jurisdiction to tax the bill of costs pursuant to Section 45 of the Advocates Act. By a ruling delivered on 25th June 2024, the taxing officer Honourable Noelle Kyanya held that there was admission of the retainer agreement in the applicant’s submissions dated 20-03-2024 and in that case she had not jurisdiction to tax the bill of costs and she proceeded to dismiss the bill of costs.
3.
Following the aforesaid ruling, the applicant filed chamber summons dated 1st August 2024 to which this ruling relates. In the chamber summons the applicant prays for the following orders;
1.
The Honourable Court be pleased to enlarge the time within which the applicant can institute the proceedings herein.
2.
The ruling of the taxing master delivered on 25th June 2023 in so far as the same relates to the reasoning and determination pertaining to the applicant/advocates bill of costs dated 16th August 2023 be set aside.
3.
The Honourable Court be pleased to re-tax the advocate’s bill of costs dated 16th August 2023.
4.
In the alternative and without prejudice to the foregoing, this Honourable Court be pleased to refer the matter back for re-taxation of the advocates bill of costs dated 16th August 2023 with proper and appropriate direction thereon.
5.
The costs of the application be awarded to the applicant.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4415/eng@2025-04-08
Constitutional Petition E016 of 2024,Githii v County Government of Nyeri; Mwangi & another (Interested Parties) (Constitutional Petition E016 of 2024) [2025] KEHC 4416 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Nyeri,High Court,DKN Magare,8 April 2025,2025.0,Nyeri,Constitutional and Human Rights,Peter Kariuki Githii v County Government of Nyeri; Peter Ndegwa Mwangi & Jonah Waweru Kamau,[2025] KEHC 4416 (KLR) ,,"1.
Many years ago, it was understood that once a decision is rendered in rem, it applies to all and sundry. This may have changed over time while I was away. The viscous alcohol wars have raged with the filing of various matters attacking the Nyeri County Alcoholic Drinks and Control Bill and subsequent Acts. This Petition dated 22.10.2024 was filed in Kerugoya High Court before it was rerouted to this court.
2.
The Petitioners sought the following reliefs:
i.
The Respondent be put to strict proof as regards the alleged publication of the Nyeri County Alcoholic Drinks and Control Bill, 2023 on 12.10.2023, in the Kenya Gazette.
ii.
The Nyeri County Alcoholic Drinks and Control Bill, 2023 be declared unconstitutional, null and void.
iii.
Costs
3.
The petition is premised on the grounds in the petition and the verifying affidavit sworn by Peter Kariuki Githii on 22.10.2024 as follows:
i.
The Bill violates Article 199(1) of the Constitution for failure of gazettement in the Kenya Gazette.
ii.
The purported Gazettement of the Bill on 12.10.2023 is inaccessible to the Public.
iii.
The Bill is discriminatory within the meaning of Article 27 and Article 10 of the Constitution.
iv.
The public notice dated 2.10.2023 was done without locus standi.
v.
The Respondents failed to satisfy Section 85 of the Evidence Act.","Analysis
7.
The issue for determination is whether the Nyeri County Alcoholic Drink Control Bill 2023 is unconstitutional, null and void for want of public participation. The petitioner sought an order declaring the Nyeri County Alcoholic Drinks and Control Bill, 2023, unconstitutional and null and void for violating, inter alia, Article 199(1) of the Constitution. The said article provides as follows:
(1)
County legislation does not take effect unless published in the Gazette.
8.
For a question to be raised, it must be justiciable and not moot. Annexed to the petition was a copy of the Nyeri County Alcoholic Drink Control Bill 2023, which had been duly published in the Gazette.
9.
Whereas bills must be published, Article 199(1) did not deal with bills. It deals with county legislation. The legislation arising from the bill was the Nyeri County Alcoholic Drinks Control Act, 2024. The same has not been attacked in this matter. This court dealt with the Act's constitutionality from inception to execution. The courts have also dealt with regulations arising therefrom in Wanjeru v County Secretary/Head of County Public Service County Government of Nyeri; Mwangi & another (Interested Parties) [2024] KEHC 15988 (KLR). The constitutionality of the said Act was dealt with in the case of Nyeri County Bar Owners Association v County Government of Nyeri [2024] KEHC 12140 (KLR). In that, the court held as follows:
In this case, it is not the case of the Petitioner that they were not afforded reasonable opportunity to present their views. The Petitioner only maintained that its views were not considered and as such the entire exercise of public participation was also discriminatory. It is also not the case of the Petitioner that it was not allowed reasonable time within which to air out all its views. They participated and gave their views. I have seen amendments proposed and carried based on public participation. There were also others proposed but not carried. This is evidence of good faith. It must be understood that pubic participation is not equivalent to veto. The legislative prerogatives must be given accord unless it is clear that the legislature is rogue or the proposals derogate from all public views given. In Doctors for Life International vs. Speaker of the National Assembly and Others (CCT 12/05) 2006 ZACC), the court stated as follows: “It is true, as discussed previously, that time may be a relevant consideration in determining the reasonableness of a legislature’s failure to provide meaningful opportunities for public involvement in a given case. There may well be circumstances of emergency that require urgent legislative responses and short timetables. However, the Respondents have not demonstrated that such circumstances were present in this case. When it comes to establishing legislative timetables, the temptation to cut down on public involvement must be resisted. Problems encountered in speeding up a sluggish timetable do not ordinarily constitute a basis for inferring that inroads into the appropriate degree of public involvement are reasonable. The timetable must be subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable.
35.
I dare add that, anyone with something useful, will say it notwithstanding the amount of reasonable time given. Someone without anything to say, will not say, even where a whole decade is given.
36.
Therefore, in my view, the Petitioner has failed to demonstrate the manner in which the impugned public participation in respect of the Act was contrary to the letter and spirit of the Constitution as to declare the Act unconstitutional, null and void. In Nairobi Metropolitan PSV Saccos Union Limited & 25 Others vs. County of Nairobi Government & 3 Others [2013] eKLR, Lenaola J (as he then was) observed that: “The petitioners have attacked the impugned legislation on grounds that it failed to comply with the process of public participation as required by the Constitution. Where legislation fails to comply with the Constitution, courts have powers to make necessary orders in that regard as was held in the Constitutional Court of South Africa in the case of Doctor's for Life International v The Speaker National Assembly and Others (supra) where it was stated as follows;“It is trite that legislation must conform to the Constitution in terms of both content and the manner in which it is adopted. Failure to comply with the manner and form requirements in enacting legislation renders the legislation invalid. And courts have the powers to declare such legislation invalid
37.
Based on the findings, I do not see the manner in which the Respondent’s public participation exercise was a sham.
10.
The petitioner argued that the purported Gazettement of the said Bill on 12.10.2024 was inaccessible to the public. Therefore, the Petitioner did not argue that there was no publication. The petitioner argued that the Gazettement was inadequate because it was inaccessible. No evidence was placed before the court regarding the bill's inaccessibility. This changed the gamut of the petition. The initial issues were with the publication. Now, the adequacy of publication goes to the root of constitutionality. This is because, in another matter, challenging the Act, in rem, the issue of public participation was dealt with comprehensively.
11.
The court’s duty is not to look at the adequacy of the publication but whether the bill was published. With respect to the essence of pleadings, the Supreme Court of Kenya, in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in an election petition: -
“
In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”
12.
A party claiming a violation of the Constitution has the duty to lay before the court precise circumstances based on which the court can infer that the Constitution is threatened or violated. The apex court discussed the predeterminants of a proper Constitutional Petition in the decision made in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR, where the court stated as follows:
Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed, or threatened, a party invoking this article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.
13.
A deviation from the Constitution must not be illusionary. It must be tangible and discernible from a party’s pleadings. In Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR the Supreme Court emphasized the need for precision as follows: -
(48)
… where a party in an election petition invokes this court’s jurisdiction under article 163(4)(a) of the Constitution, it is not enough for one to generally allege that the Court of Appeal erred in its decision(s) and that its reasoning and conclusions took a constitutional trajectory. The constitutional trajectory stated by this honourable court is not illusionary. It is tangible and should be discernable from a party’s pleadings. A party is under a constitutional forensic duty to clearly set out the particulars of the constitutional transgressions that in his/her opinion the Court of Appeal committed in their interpretation and/or application. Those grounds must be pleaded with precision and the constitutional principle and/or provision alleged to have been violated clearly set out.
14.
The axis of this court’s power to determine the constitutional validity of any legislation is Article 165(3) of the Constitution. The Article provides that:
3)
Subject to clause (5), the High Court shall have-
(b)
jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c)
…
(d)
jurisdiction to hear any question respecting the interpretation of this Constitution, including the determination of-
(i)
the question whether any law is inconsistent with or in contravention of this constitution.
15.
The Petitioner should have laid down and particularized precisely how the Bill infringed on the Articles of the Constitution or as a whole. The preciseness of pleadings was set out in Anarita Karimi Njeru v Republic [1979] KLR, where the court observed as follows:
If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed…
16.
The allegations by the Petitioner herein relate to the failure of due process in publishing legislation. Due process, substantive justice, and the exercise of jurisdiction are a function of precise legal and factual claims. This due process was not demonstrated whatsoever. In Kenya Medical Practitioners, Pharmacists and Dentists’ Union v University of Nairobi & another [2021] eKLR, the court discussed the need for precision in approval to the precedent in Anarita Karimi decision and observed as follows: -
The foregoing finding (Anarita Karimi Njeru) received endorsement from the Court of Appeal in Nairobi Civil Appeal No 290 of 2012, Mumo Matemu v Trusted Society of Human Rights Alliance[2013] eKLR when the Learned Judges remarked on the importance of compliance with procedure under article 159 of the Constitution, the overriding objective principle under section 1A and 1B of the Civil Procedure Act and need for precision in framing issues in constitutional petitions. It was observed thus:
(41)
We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.
17.
The Petition did not satisfy the precision required of constitutional petitions. The Petitioner failed to precisely plead how the alleged Bill violated Article 199(1) of the Constitution. It was contradictory for the Petitioner to assert that the Bill was purported to be published when it was not without stipulating the parameters for such publication to be proper publication. It was also not pleaded how the Bill contravened Articles 27 and 10 of the Constitution on discrimination.
18.
It was left to the court to discern the infringements alleged. The court cannot act on conjecture, speculation, or hyperbole. What the Petitioner has done is to petition the court and ask for relief unknown in law. What does the following prayer mean?
“
The Respondent be put to strict proof as regards the alleged publication of the Nyeri County Alcoholic Drinks and Control Bill, 2023 on 12.10.2023, in the Kenya Gazette.”
19.
If I allow this prayer, what is the petitioner seeking? The need for a precise and comprehensive petition is paramount, as addressed by the Court of Appeal in Migori County Government & another v Migori County Transport Sacco (Civil Appeal 110 of 2017) [2021] KECA 7 (KLR) (23 September 2021) (Judgment):
A constitutional petition ought to set out with a degree of precision the petitioner’s complaint, the provisions infringed and the manner in which they were alleged to be infringed. A constitutional petition ought to be drafted with some reasonable degree of precision, identifying the constitutional provisions that were alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation. It was not enough to merely cite constitutional provisions. There had to be some particulars of the alleged infringements to enable the Respondents to respond to and/or answer the allegations or complaints. The Respondent's petition stated the particular provisions of the Constitution violated and the manner of violations attributed to the appellants.
20.
Consequently, the first limb of the prayers sought is otiose and accordingly fails. It has neither the legs to stand on nor life to be resuscitated. The second prayer has been dealt with comprehensively regarding the subject matter herein. Due to the separation of powers, the court was mandated to intervene in legislative powers but with reasonable constraints based on constitutional and legality parameters, which the Petitioner failed to demonstrate. On the question of separation of powers and privilege, the Court of Appeal, in Mumo Matemu v Trusted Society of Human Rights Alliance[2013] eKLR considered the scope of application of the separation of powers doctrine, and adopted the High Court’s standpoint in the following terms:
“
[Separation of powers] must mean that the Courts must show deference to the independence of the legislature as an important institution in the maintenance of our constitutional democracy, as well as accord the executive sufficient latitude to implement legislative intent. Yet, as the Respondents also concede Courts have an interpretive role – including the last word in determining the constitutionality of all governmental actions….”
“
[I]n a jurisdiction such as ours in which the Constitution is supreme, the Court has jurisdiction to intervene where there has been a failure to abide by [the] Standing Orders which have been given constitutional underpinning under the said Article. However, the Court must exercise restraint and only intervene in appropriate instances, bearing in mind the specific circumstances of each case.”
21.
The second limb is subject of the doctrine of res judicata. In public matters, a decision in rem in one matter binds all and sundry. It is not a must that everyone must also file a similar petition. The question of constitutionality of the Nyeri County Alcoholic Drinks Control Act 2024 was put to bed in Nyeri Petition Number 3 of 2024. Can it be revisited or is it res judicata? The doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a court of competent jurisdiction. The court in the English case of Henderson v Henderson (1843-60) All E.R 378, observed thus:
“
…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”
22.
Res judicata applies to applications just like suits. In the case of Julia Muthoni Githinji v African Banking Corporation Limited [2020] eKLR the court stated thus:
14.
After a careful reappraisal of the application for injunction before the lower court, I have come to the conclusion that the application was resjudicata and the entire suit was subjudice as there was an active pending suit before a court of competent jurisdiction being Nakuru ELC No. 272 of 2017. All issues raised in the suit before the subordinate court could be properly litigated in the suit pending before the ELC. The filing of the suit by the appellant in the subordinate court when she had a similar suit in the ELC Court was an abuse of the Court process which the Court cannot countenance.
23.
The doctrine of res judicata arises from Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya which defines the doctrine of Res Judicata in the following terms: -
“
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
24.
The Civil Procedure Act also provides explanations with respect to the application of the res judicata rule. Explanations 4 and 6 provide as follows:
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation. –
(4)
Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
(6)
Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
25.
What constitutes res judicata was addressed in depth in the case of Re Estate of Riungu Nkuuri (Deceased) [2021] eKLR where the court stated as follows:
The test for determining the Application of the doctrine of res-judicata in any given case is spelt out under Section 7 of the Civil Procedure Act. In Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:
“
(a)
The suit or issue was directly and substantially in issue in the former suit.
(b)
That former suit was between the same parties or parties under whom they or any of them claim.
(c)
Those parties were litigating under the same title.
(d)
The issue was heard and finally determined in the former suit.
(e)
The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”
26.
The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. This was so held in the case of Attorney General & another ET vs (2012) eKLR where it was held that:
“
The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi s NBK & Others (2001) EA 177 the court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit”.
In that case the court quoted Kuloba J, (as he then was) in the case of Njanju vs Wambugu and another Nairobi HCC No. 2340 of 1991 (unreported) where he stated: If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift in every occasion he comes to court, then I do not see the use of doctrine of res judicata…..”.
27.
There is nothing new introduced in the claim. The questions raised, albeit in a hazy manner, relates to the constitutionality of the Nyeri County Alcoholic Drinks Control Act 2024. In this side attack, the Petitioner is attacking the publication of the bill leading to the enactment of the Nyeri County Alcoholic Drinks Control Act 2024. The questions for attack now were available in the former suit. What the petitioner has done is to convolute the former suit and present a similar one as if it is a brand new petition. No court should knowingly decide a matter that has been fully adjudicated by a competent court of law. In the case of Henderson v Henderson [1843-60] ALL ER 378 the court states as follows:
“
… where a given matter becomes the subject of litigation in and of adjudication by Court of competent jurisdiction the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances)| permit the same parties to open the same subject of litigation in respect of a matter which might have brought forward as part of the subject in contest but which was not brought forward only because they have from negligence, inadvertence or even accidently omitted party of their case. The plea of res judicata applies, except in special case, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation reasonable diligence might have brought forward at the time.”
28.
The separation of powers is what Baron De Montesquieue in his postulation, The spirit of the law chapter xi, 3, 1748, described as a check to abuse of powers. It was motivated by the understanding that whoever is given authority is prone to misuse it and extend it as far as they can. In order to avoid this kind of exploitation, it was essential that one power be a check on the other. As a result, the notion of executive, judicial and legislative branches of government was to preclude the exercise of arbitrary powers among the 3 arms and the cushion of tendencies towards anarchy.
29.
It was the duty of the Petitioner to demonstrate that the actions and omissions of the County Assembly of Nyeri were contrary to the specific provisions of the Constitution and the manner in which this happened. This is because what was in contest was a Bill and not an Act. For being a Bill, it meant the county assembly was in the process of making it a county legislation. The court would only interfere with precaution to avoid trekking the path so delicate and treacherous into the boundaries well within the legislative role of the county. The High Court, in Okiya Omtatah and 3 Others v. Attorney-General and 3 Others (2013) eKLR stated thus:
“
To agree with the National Assembly that this Court cannot interrogate its work will amount to saying that the National Assembly can fly beyond the reach of the radar of the Constitution. That is a proposition we do not agree with. Our view is that all organs created by the Constitution must live by the edict of the Constitution.”
30.
The court is thus alive that the broad profile of the Constitution commits law-making process to parliament and the county assemblies. This court can resolve disputes relating to uncertainties in the enactment and implementation of national and county legislation in case of uncertainties that relate to the mode of legislative drafting implementation within the purview of constitutional provisions. This is however in line with limitations to judicial authority such as separation of powers and justiciability concepts.
31.
In the case of Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others [2016] eKLR, J.L. Onguto J posited as follows regarding justiciability.
29.
The justiciability dogma and all principles under it are part of our Constitutional law and jurisprudence. The court in John Harun Mwau & 3 Others –v- AG & 2 others HCCP No. 65 of 2011 (unreported) stated as follows:
“
We also agree with the submissions of Prof. Ghai that this Court should not deal with hypothetical and academic issues. In our view, it is correct to state that the jurisdiction to interpret the Constitution conferred under Article 165(3) (d) does not exist in a vacuum and it is not exercised independently in the absence of a real dispute. It is exercised in the context of a dispute or controversy.”
30.
Later in Hon. Martin Nyaga Wambora –v- Speaker of County Assembly of Embu and 5 Others HCCP No. 3 of 2014, the court observed as follows:
“
It is clear from the above definition that whether a matter before a Court is justiciable or not depends on the facts and circumstances of each particular case but the Court must first satisfy itself that it has jurisdiction to entertain the matter before it can resolve the issue of justiciability.’
31.
In Coalition for Reform and Democracy (CORD) & 2 Others -v- Republic of Kenya & Another HCCP 628 of 2014 [2015]eKLR, the court cited the case of Patrick Ouma Onyango & 12 Others –v- AG & 2 Others Misc. Appl No. 677 of 2005 wherein the court had endorsed the doctrine of justiciability as stated by Lawrence H. Tribe in his treatise American Constitutional Law, 2nd Ed. Page 92 as follows:
“
In order for a claim to be justiciable as an article III matter, it must “present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted.” In part, the extent to which there is a 'real and substantial controversy is determined under the doctrine of standing' by an examination of the sufficiency of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested. The substantiality of the controversy is also in part a feature of the controversy itself-an aspect of ‘the appropriateness of the issues for judicial decision...and the actual hardship of denying litigants the relief sought. Examination of the contours of the controversy is regarded as necessary to ensure that courts do not overstep their constitutional authority by issuing advisory opinions. The ban on advisory opinion is further articulated and reinforced by judicial consideration of two supplementary doctrines: that of 'ripeness' which requires that the factual claims underlying the litigation be concretely presented and not based on speculative future contigencies and of 'mootness' which reflects the complementary concern of ensuring that the passage of time or succession of events has not destroyed the previously live nature of the controversy. Finally, related to the nature of the controversy is the 'political question' doctrine, barring decision of certain disputes best suited to resolution by other governmental actors'.
32.
In Judicial Service Commission v. Speaker of the National Assembly and 8 Others (20130 eKLR, the court proceeded on the basis that the separation of powers doctrine obligated it to be conscious of certain limitations to judicial authority; the court remarked that some issues, by the terms of the Constitution, had been expressly committed to other arms of government. The court stated as doth:
“
the Constitution disperses powers among various constitutional organs. Where it is alleged that any of these organs has failed to act in accordance with the Constitution, then the Courts are empowered by Article 165(3)(d)(ii) to determine whether anything said to be done under the authority of the Constitution or any other law is inconsistent [with] or in contravention of the Constitution.""
33.
Since what was in contest was a Bill, which is an actual legislative act in being; it was not in general permissible to this court to impugn through the process of the courts a bill before it has actually become law. A relevant observation on such issues has been made by the Nigerian Scholar, Law Professor B.O. Nwabueze’ The Presidential Constitution of Nigeria (London, Sweet & Maxwell, (1983) in these terms:
“
The review by the ordinary courts of the constitutionality or legality of legislative and executive acts, and of the propriety of administrative acts of a quasi-judicial nature is the main bulwark of constitutionalism in the Commonwealth and the United States….The court’s jurisdiction for this purpose may be invoked by an aggrieved party…, provided he can establish a locus standi entitling him to challenge the act in question. This condition means that what can be challenged is an actual legislative act in being; it is not in general permissible to impugn through the process of the courts a bill before it has actually become law.”
34.
Even if it were not for the foregoing, it is now clear that this Petition was overtaken by events upon operationalization of the Nyeri County Alcoholic Drinks Control Act, 2024. While I have clarified the issues raised herein, even if I had found fault with the manner in which the Respondent acted, I would still have declined to grant the orders sought herein. As was held in John Harun Mwau & 3 Others –vs- A.G & 2 Others [2012] eKLR:
“
…this court should not deal with hypothetical and academic issues. In our view, it is correct to state that the jurisdiction to interpret the Constitution conferred under Article 165 (3)(d) does not exist in a vacuum and it is not exercised independently in absence of a real dispute. It is exercised in the context of a dispute or controversy...”
35.
The Petition is, therefore, devoid of merit. It is accordingly dismissed.
36.
The next question is costs of the petition. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say as regards costs: :
“
It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.
37.
The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -
(18)
It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or Respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.
38.
The Respondent did not give a spirited fight. In the circumstances, being an attempt to have a second bite of the cherry, the court could have been inclined to award costs. However, given the foregoing, each party will bear their own costs.
Determination
39.
The upshot is that I make the following orders: -
a.
The Petition dated 22.10.2024 is dismissed for lack of merit.
b.
Each party shall bear own costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4416/eng@2025-04-08
Judicial Review Application E191 of 2024,Hinga & 17 others v Retirement Benefits Appeals Tribunal & another; Kenya Airports Authority Superannuation Scheme & another (Interested Parties) (Judicial Review Application E191 of 2024) [2025] KEHC 4535 (KLR) (Judicial Review) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,RE Aburili,8 April 2025,2025.0,Nairobi,Judicial Review,Stephen Wahome Hinga & 17 Others v Retirement Benefits Appeals Tribunal & Attorney General; Kenya Airports Authority Superannuation & Retirement Benefits Authority,[2025] KEHC 4535 (KLR),,"
1.
The application before this Court is the applicant’s Chamber Summons application dated 28th August 2024. The application seeks leave to apply for an order or certiorari to quash the judgement and orders of the 1st respondent dated 29th February 2024 in RBAT No. 9 of 2021 – Stephen Wahome Ihiga & 16 Others –vs- Retirement Benefits Authority and Another.
2.
It also seeks for leave to apply for an order of Mandamus compelling the 1st respondent to determine the applicants appeal filed on 26th May 2021 in accordance with the Retirement Benefits Act and the Kenya Airports Authority Superannuation Scheme Rules.
3.
The application is based on the grounds on its face and the affidavit of Stephen Wahome Ihiga.
4.
The applicants’ case is that they are former Kenya Airports Authority employees and members of the Kenya Superannuation Scheme, governed by an irrevocable Trust Deed and Rules dated 11th August 1995 and last amended on 2nd October 2006.
5.
It is their case that on or about 14th June 2013 they discovered that their pension benefits had been underpaid due to alleged misrepresentation, concealment and non-disclosure of material facts.
6.
The 1st interested party is said to have continued to calculate their benefits at 12% as provided under the 1995 Trust Deed and rules instead of calculating the same using the updated 2006 Trust Deed and rules, which entitles them to 40% of their last salary.
7.
Aggrieved by this they filed a complaint to the 2nd interested party vide a letter dated 14th June 2013 but it was dismissed on 3rd May 2021. They appealed the decision to the Retirement Benefits Appeals Tribunal (RBAT), which also dismissed the appeal on 29th February 2024.
8.
The applicants argue that the 2006 Trust Deed entirely replaced earlier versions and has been upheld in past court decisions. They claim the Tribunal’s decision was irrational, unreasonable, procedurally unfair, and violated their rights. They now seek the court's intervention, alleging abuse of power by the Tribunal and requesting justice and fairness in the matter.","Analysis and determination
49.
It is well established that when a preliminary objection is raised on the court’s jurisdiction, the court must first determine this issue before considering the merits of the case.
50.
This principle is rooted in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, where the Court of Appeal for East Africa, through Law, JA, and Newbold, P., held that a preliminary objection is a pure point of law, such as an objection to the jurisdiction of the court, which, if argued as a preliminary point, may dispose of the suit. The Court also emphasized that such an objection should not involve the examination of facts or the exercise of judicial discretion, which could unnecessarily increase costs and complicate issues.
51.
the Supreme Court, in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR, noted that the purpose of a preliminary objection is twofold: it serves as a shield to prevent wastage of judicial time and resources and protects the public interest by ensuring judicial time is only spent on deserving cases. The Court also stressed that such objections should not be used as a sword to dispose of cases prematurely or avoid judicial scrutiny.
52.
In the case of Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others, Petition No. 10 of 2013, [2014] eKLR, the Court reiterated that a preliminary objection is a point of law raised based on the assumption that the facts pleaded by the other side are correct, and it cannot be raised if any fact has to be ascertained or if what I sought requires judicial discretion.
53.
Jurisdiction must always be determined first, as without it, the court has no authority to continue with proceedings. The importance of this principle was affirmed in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where the court held that without jurisdiction, the court must “down its tools.” In this case, the respondents and interested parties have argued that the court lacks jurisdiction to entertain the applicant’s application dated 28th August 2024, claiming it is res judicata, having been conclusively determined. Section 7 of the Civil Procedure Act, Cap 21, defines res judicata, stating that no court shall try any suit or issue that has already been directly and substantially in issue in a previous suit between the same parties and has been decided by a competent court.
54.
The Black’s Law Dictionary (10th Edition), defines res judicata as an issue that has been definitively settled by judicial decision, requiring three essentials: an earlier decision on the issue, a final judgment on the merits, and the involvement of the same parties or parties in privity with the original parties.
55.
The principle prevents the reopening of litigation on the same cause of action, ensuring there is no multiplicity of actions involving the same parties. However, as observed in Njangu v Wambugu (Nairobi HCCC No. 2340 of 1991, unreported), if parties are allowed to endlessly litigate the same issue, it would defeat the purpose of the doctrine res judicata. Furthermore, in Siri Ram Kaura v M.J.E. Morgan (CA 71/1960), the Court of Appeal emphasized that the discovery of fresh evidence, without new circumstances, does not justify bypassing res judicata. To reopen a case, the new fact must substantially alter the case and could not have been discovered with reasonable diligence at the time of the original proceedings.
56.
In reviewing the present case, the court finds that the applicants are not re-litigating the same issues previously determined but are raising a challenge based on alleged procedural unfairness, irrationality, and abuse of discretion in the decision made by the Tribunal on 29th February 2024. Judicial review does not concern the merits of a decision but rather the process by which the decision was made. The applicants are entitled to challenge the legality, rationality, and procedural propriety of the administrative action, even if the substantive issue has previously arisen.
57.
Moreover, the record shows that the applicants’ complaint dated 14th June 2013 was based on alleged misrepresentation, concealment, and non-disclosure, giving rise to a fresh cause of action.
58.
The Tribunal in 2020 directed a merit-based reconsideration of the complaint, culminating in the impugned 2024 decision, a decision the applicants are now entitled to challenge on administrative law grounds. The court also notes that the current application includes parties who were not party in the prior litigation, or who are relying on facts or legal issues not conclusively determined in earlier proceedings.
59.
Applying the doctrine of res judicata in this case and at this stage would hinder access to justice as envisaged under Articles 48 and 50(1) of the Constitution. Therefore, the preliminary objection raising the ground of res judicata is declined and overruled, and the applicants are permitted to proceed with their judicial review application, noting that res judicata issue can still be canvassed in the main application if leave to apply is granted, assuming that indeed, at the hearing, it appears that the issues being raised herein have been conclusively determined by a court of competent jurisdiction and between the same persons or [persons litigating on behalf of the applicants herein.
60.
On the issue of leave to apply for judicial review orders, the court has considered the applicants’ chamber summons, statutory statement, and verifying affidavit, along with the responses from the respondents and interested parties. The court must exercise discretion judiciously when granting leave under Order 53 of the Civil Procedure Rules, ensuring that the application is not frivolous, statute-barred, or an abuse of process.(see Sylvana Mpabwanayo Ntaryamira v Allen Waiyaki Gichuhi & another [2016] KEHC 4176 (KLR).
61.
At the leave stage, the court does not examine the merits of the case but merely assesses whether the applicant has an arguable prima facie case. Judicial review remedies, being discretionary and of last resort, should only be granted if no other efficacious remedy is available, as outlined in Republic v County Council of Kwale Exparte Kondo & 97 Others (Mombasa HCC Miscellaneous Application No. 384/96) and Permanent Secretary Ministry of Planning & National Development Exparte Kaimenyi (2006) 1EA 353.
62.
In this case, the court finds that the applicants have raised serious and arguable issues that warrant further investigation at the substantive hearing. The claim is not frivolous, and the applicants have a legitimate basis for challenging the decision made by the 1st respondent.
63.
Therefore, leave is granted to institute judicial review proceedings, in terms of prayers No.1 and 2 of the chamber summons. The substantive motion to be filed within 21 days of today’s date in a fresh file. Each party bear its own costs.
64.
This file is closed",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4535/eng@2025-04-08
Family Miscellaneous Application E240 of 2024,HSM v MSM (Family Miscellaneous Application E240 of 2024) [2025] KEHC 4519 (KLR) (Family) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,HK Chemitei,8 April 2025,2025.0,Nairobi,Family,HSM v MSM,[2025] KEHC 4519 (KLR) ,,"
1.
In her petition dated 18th October 2024 the petitioner seeks orders that:-
(a)
A declaration that MSM be and is hereby adjudged to be a person suffering from mental disorder under section 26 of the Mental Health Act Cap 248.
(b)
This court be pleased to appoint HSM guardian and manager of Mr. MSM in accordance with the mental Health Act Cap 248 with powers to sign, access, withdraw, execute and or carry out any act incidental to the affairs of the subject.
(c)
Costs be provided.
2.
The petition is based on the affidavits of the Applicant and one ZMI sworn on the same dates.
3.
The petitioner is the sister to the subject whereas Z is the mother who has consented to the petitioner being appointed the subject guardian.
4.
The court has perused the said affidavits as well as the medical reports on record in particular that of Holland Bloorview Kids Rehabilitation Hospital dated 20th February 2014 which appears comprehensive. The report shows that the subject suffered some injury during birth, “perinatal hypoxic ischemic injury.”
5.
In view of the said report and the relationship between the petitioner and the subject the court finds the petition meritorious and it is hereby allowed as prayed.
Costs in the cause.",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4519/eng@2025-04-08
Miscellaneous Cause E232 of 2023,HSS v IMI (Miscellaneous Cause E232 of 2023) [2025] KEHC 4527 (KLR) (Family) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,HK Chemitei,8 April 2025,2025.0,Nairobi,Family,DSS AKA HSS v IMI,[2025] KEHC 4527 (KLR) ,,"1.
In her Notice of Motion dated 26th October 2023 the Applicant seeks orders that:-
(a)
Spent
(b)
Divorce Cause No. E164 of 2023 before the Senior Resident Kadhi at Kadhis court at Nairobi be transferred for trial and disposal at the Chief Magistrate court at Milimani commercial courts Nairobi.
(c)
Upon prayer (b) being granted the Applicant be granted leave to file an answer to the petition and cross petition out of time.
(d)
The issues raised in the Divorce Cause No. E164 of 2023 that touch on the custody maintenance and welfare of the infant minor child known as Zunaisha Irfan Iqbal be ventilated in children’s courts cause also filed by the Applicant herein.
(e)
Costs be provided for.
2.
The application is based on the grounds thereof and the Applicant’s sworn affidavits dated 26th October 2023 and the annexures thereto.","14.
I have perused the submissions on record by the parties and I think the issue basically for determination is whether in light of the changes in her faith midstream the matter ought to be transferred to the Chief Magistrate Court from the Kadhis court.
15.
It is true that Articel170(5) of the Constitution which mandates the Kadhis courts states as hereunder:-
“
The jurisdiction of a Kadhi's court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhis' courts.”
16.
Whereas the above position is true I do not have any evidence that the Applicant renounced her Islamic faith and reverted to Hinduism. That is a factual issue which can only be determined by way of evidence. None has been presented before this court.
17.
At the same time, it appears to me that the matter had proceeded so far that raising the jurisdictional issue via this application is too late in the day. I state so for the reason that the Respondent’s averments in the replying affidavit were not controverted.
18.
The Applicant went as far as filing a suit at the Chief Magistrates Children’s Court which was dismissed and the court directed the parties to submit themselves to the Kadhis court and deal with the matter there exhaustively.
19.
The ruling in suit number E1800 of 2023 at the Children’s Court was not appealed against by the Applicant. This is the same issue which she wants this court to deal with. I think and I agree with the Respondent that this is forum shopping to say the least. If she was not happy with the said decision, she should have preferred an appeal against it.
20.
Equally, asking this court to transfer the matter to the Chief Magistrate court and filing a suit before the said court was very ingenious but the court will not fall for it.
21.
The best approach is for the Applicant to exhaust all the issues before the Kadhis court including her argument on her faith and the changes she had gone through and if the said court is not persuaded then she moves to this court by way of appeal. The same goes with the issues surrounding the custody and maintenance of their minor child.
22.
This court will be doing a disservice to both parties noting the stage at which the matter at the lower court had reached. The court will always interrupt the proceedings at the trial court if it is proved beyond peradventure that there is need to stay the same.
23.
Staying of proceedings midstream is ordinarily not an issue to be taken lightly noting as stated above that there is an opportunity for the parties to approach the appellate court at appropriate time. It will be exercised where it is established that the proceedings are manifestly vexatious and frivolous and allowing it to proceed will be prejudicial to the Applicant.
24.
In the premises I find the application not meritorious and I dismiss it with no orders as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4527/eng@2025-04-08
Succession Cause 444 of 2011,In re Estate of Damaris Nduta Gitau (Deceased) (Succession Cause 444 of 2011) [2025] KEHC 4516 (KLR) (Family) (8 April 2025) (Directions),Directions,High Court at Nairobi (Milimani Law Courts),High Court,HK Chemitei,8 April 2025,2025.0,Nairobi,Family,,[2025] KEHC 4516 (KLR) ,,"
1.
This matter has had twins and turns over the years yet the issues are simple and straight forward. To show the enormity of the same, all the judges who have handled it have moved to the court of appeal generally.
2.
I have perused the record and the reconstructed file. I have listened to the counsel for the Objectors and the administrator and I have perused over 10 pending applications some which seem to have been dealt with halfway and others pending.
3.
I have perused the preliminary objection dated 16th July 2024 in which it captured well the ruling dated 25th October 2022 by Muchelule J (as he then was) which stated as follows:-
“
That being the case I direct that all the parties in this case do within 30 days file and serve a response to the Respondent’s application of 31st October 2018 to confirm the grant. The Respondent shall within 21 days of service file any further affidavit. The application shall be heard orally in open court on 13th February 2023.”","3.
I have perused the preliminary objection dated 16th July 2024 in which it captured well the ruling dated 25th October 2022 by Muchelule J (as he then was) which stated as follows:-
“
That being the case I direct that all the parties in this case do within 30 days file and serve a response to the Respondent’s application of 31st October 2018 to confirm the grant. The Respondent shall within 21 days of service file any further affidavit. The application shall be heard orally in open court on 13th February 2023.”
4.
Of course, 13th February 2023 passed without the parties complying with the above order. I’m however not sure whether the date of the application is 31st October 2018 or 24th October 2018. The one I have seen in the file is dated 24th October 2018.
5.
Whatever the case the court directed the same to be heard by way of oral evidence. Much has passed. The Objectors have made series of applications which the court decided to put on hold pending the hearing of the main application for confirmation.
6.
From the pending applications it appears that the administrator Edwin Muchene Gitau has used the grant to undertake activities which the Objectors argue that it has wasted the estate and by extension benefited him alone. These are issues which will come out at the time of determination of the main cause.
7.
I do not intend to go against the orders of Muchelule J. As a matter of fact, this matter ought to have been determined by now. In any case none of the parties appealed or applied to have it set aside.
8.
In the premises I direct as hereunder:-
(a)
The orders of this court dated 25th October 2022 be complied forthwith and the parties take a hearing date as a matter of priority.
(b)
Let there be stay of any sale, charging, distribution intermeddling or in any way dealing with all the estate assets pending the hearing and determination of the cause.
(c)
The parties are hereby granted leave to file any witness statements or affidavits, if any, and exchange them within 30 days from the date herein.
(d)
All the pending applications except the one for the confirmation of grant are hereby held in abeyance pending the determination of this cause.
(e)
All the original title documents and any other legal instruments under the name of the deceased and specifically Dagoretti/Riruta Plot Number 2276/2, Dagoretti/Uthiru/290, Ndumbuini plot Number T14 and T24, Kirinyaga road plot number 209/136/30, Kirinyaga road plot number 209/136/194, Kirinyaga road plot number 209/136/36, Ngara Mushembi road plot number 209/118/147, Karen plot number 2259/53 to be delivered to the Deputy Registrar of this court by whoever is holding them within 30 days from the date herein.
(f)
This file be placed in the strong room and under the custody of the Deputy Registrar of this court.
(g)
This matter be mentioned before the Deputy Registrar on 5th May 2025 for taking an appropriate date and confirming compliance.
(h)
Costs in the cause.",Court issues further directions,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4516/eng@2025-04-08
Succession Cause 2215 of 1995,In re Estate of Francis Gatiba (Deceased) (Succession Cause 2215 of 1995) [2025] KEHC 4513 (KLR) (Family) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,HK Chemitei,8 April 2025,2025.0,Nairobi,Family,"GWM & DM v The Land Registrar, Nairobi & The Honourable Attorney General",[2025] KEHC 4513 (KLR)  ,,"
1.
This ruling relates to the application dated 29th January, 2024 filled by GWM and seeking for orders that:-
a.
Spent.
b.
This honourable court be pleased to issue orders that the Applicants be and are hereby permitted and empowered by the court to sell the parcel of land known as Nairobi/block XXX/XXXX and the same be applied in the following:-
i.
The payment of school fees and school related expenses.
ii.
The investment of the balances of the sale for the purpose of future application in the education of the minor.
c.
The honourable court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case.
2.
The application is based on the grounds thereof and supported by affidavit and further affidavit sworn by GWM on 29th January, 2024 and 28th February, 2024 respectively.","Analysis And Determination
8.
I have gone through the applications, responses thereto and the rival submissions filed by the parties, and address them as follows:-
9.
Although the application is unopposed, it is the duty of the Court to nevertheless subject it to a merit evaluation in accord with the applicable laws and principles. Indeed, in Gideon Sitelu Konchellah vs. Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR the Supreme Court of Kenya held that:-
“
…as a court of law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the Court will as a matter of cause grant the sought orders. It behooves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted. The Court is under a duty to look at the application and without making any inferences on facts point out any points of law, such as any jurisdictional impediment, which might render the application a non-starter. We see no such jurisdictional issue in the application before us. Hence we have proceeded to consider the facts before us as against the jurisprudence for grant of stay orders set by this Court…”
10.
The matter at hand must be handled however with great caution so that the minors immediate and future interest is taken care of. At the moment there is no evidence of the valuation of the subject property and the figures of Kshs.8,400,000 is from the Applicants.
11.
The appropriate way is to have the same valued and the Applicants to provide a comprehensive process of investing the proceeds before the application is granted. This will ensure that no room is left for any illegal activity which the minor may question when he comes of age.
12.
Consequently, I do order that:-
(a)
A valuation exercise be undertaken by a duly registered valuer of land parcel number Nairobi/block XXX/XXXX
(b)
The above exercise be undertaken within 30 days from the date herein.
(c)
A comprehensive investment plans of the sale proceeds be provided by the Applicants taking into consideration the immediate and future interest of the minor.
(d)
The matter be mentioned before the Deputy Registrar of this court to oversee the above exercise.
(e)
The parties be at liberty to apply.
(f)
Costs in the cause.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4513/eng@2025-04-08
Succession Cause 99 of 2017,In re Estate of James Njenga Muiruri (Deceased) (Succession Cause 99 of 2017) [2025] KEHC 4605 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Nakuru,High Court,HI Ong'udi,8 April 2025,2025.0,Nakuru,Family,Virginia Wambui Muriithi & Naomi Wanjiku Ndungu v Racharl Rukenya Njenga,[2025] KEHC 4605 (KLR)   ,,"
1.
In the amended Summons dated 11th October 2024 by the applicant prays for the following orders;
i.
Spent
ii.
The honourable Court be pleased to order and/ or direct the respondent herein, to execute and/ or sign all the relevant Transfer instruments, interalia the Mutation Forms respectively, together with such other applications for consent to facilitate the sub-division of LR. No. Nakuru/Rare/Kiriri/1023 and thereafter transfer the resultant sub-divisions in favour of the designated beneficiaries.
iii.
Consequent to prayer (2) hereof being granted, the honourable court be pleased to affix and/ or specify the timelines within which the respondent is to execute the Transfer and incidental instruments.
iv.
In the alternative to prayers (2) and (3) hereof, the honourable court be pleased to mandate and/ or authorize the deputy Registrar of the honourable court to take over the mandate and/ or powers of the respondent and execute the Transfer and incidental instruments to facilitate the completion of Administration.
v.
This honourable court be pleased to order Kenya Commercial Bank (KCB) Njoro branch to release title deed LR NO. Nakuru /Rare /Kiriri/1023 in joint account between the applicant and respondent to give effect of certificate of confirmation dated 29th July 2021.
vi.
The honourable court be pleased to issue further and/ or other reliefs, as may be just and/ or expedient to facilitate compliance with the Certificate of confirmation of Grant issued on the 29th July 2021.
vii.
Costs of the Application be borne in the course.
2.
The application is premised on the grounds on its face as well as the affidavit sworn on even date by the applicants. They deponed that the respondent applied for and was subsequently issued with grant of letters of representation of the estate of the deceased on 26th June, 2017. The deceased died on 1st September 2004. The said grant was confirmed on 29th July 2021 and a certificate of confirmation of grant issued. Further, that the respondent was obliged to commence the process of distribution and/ or transfer of shares to the beneficiaries in the deceased’s estate. She had however failed and/ or neglected to execute the statutory forms or instruments to facilitate the process of distribution.
3.
They further deponed that it was imperative that the respondent be compelled to undertake or execute her statutory mandate since the beneficiaries would not be able to appropriate, enjoy and/ or benefit from the estate of the deceased. They urged the court to grant the prayers sought in their application so as to have the deceased’s estate distributed.","Analysis and determination
15.
I have considered the application, affidavits by the parties together with the submissions and authorities filed by the applicants. In my opinion the issue for determination is whether the application is merited.
16.
Having carefully perused the court record, it is evident from the rectified certificate of confirmation of grant that the respondent was to hold in trust the title for Nakuru/Rare/Kiriri/1023. It is not in dispute that Grace Wangari Njenga (deceased) whom the applicants represent was the wife of the deceased. The grant was confirmed on 29th July 2021 and rectified on 16th March 2023. Section 83(g) of the Law of Succession Act mandates administrators of an estate to, within six months of confirmation of grant or longer period as the court may allow, complete the administration of the estate, and to produce to the court a full and accurate account of the completed administration. Clearly, in this matter the six (6) months have lapsed and there is no evidence of distribution of the deceased’s estate and no extension of the said period has been granted by this court to allow completion of administration of the estate. There is no doubt that the respondent has refused to sign the necessary documents to facilitate the distribution of the deceased estate to all the beneficiaries as per the confirmed grant. No evidence was adduced by the respondent to the contrary, nor any genuine reason given for the failure to act.
17.
I take judicial notice of the fact that this is a 2017 matter and the respondent has admitted that no distribution has taken place despite the grant having been confirmed. Further, Justice Chemitei in his ruling dated 2nd November 2023 noted that the respondent who was the administrator of the estate had delayed in executing the grant so as to transmit to the beneficiaries their rightful shares. Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules grants a succession court inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process.
18.
Rule 73 of the P&A also provides as follows;
“
Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice to prevent abuse of the process of the court.”
19.
To prevent abuse of the court process and by the above provision, this court has inherent powers to prevent such abuse. I therefore find, and hold that the applicants’ amended summons dated 11th October 2024 is merited.
20.
Accordingly, the respondent is hereby ordered to execute and/ or sign all the relevant transfer instruments to facilitate the sub-division of LR. No. Nakuru/Rare/Kiriri/1023. This is to done within twenty-one (21) days failure to which the deputy Registrar shall take over the mandate and/ or powers of the respondent and execute the transfer and incidental instruments to facilitate the completion of administration.
21.
Regarding prayer No. 5 in the application, this court has not been supplied with evidence justifying the issuance of the said order. The same is thus declined at the moment.
22.
Being a family matter there shall be no order as to costs.
23.
Orders accordingly",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4605/eng@2025-04-08
Succession Cause E706 of 2021,In re Estate of Jerusha Waitherero Macharia (Deceased) (Succession Cause E706 of 2021) [2025] KEHC 4492 (KLR) (Family) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,H Namisi,8 April 2025,2025.0,Nairobi,Family,,[2025] KEHC 4492 (KLR)   ,,"
1.
The Deceased passed away on 26 November 2020 through a tragic road accident. She died intestate. Following her death, the Applicant applied for and was subsequently issued with a Limited Grant of Letters of Administration ad Litem on 27 May 2021 for purposes of filing suit for and on behalf of the dependants of the Deceased under the Fatal Accident Act and Law Reform Act.
2.
The Applicant has filed the present application seeking the following orders:
i.
Spent;
ii.
That this Honorable Court be pleased to extend the validity of the Limited Grant of Letters of Administration ad litem issued herein on 27 May 2021;
iii.
That the costs of this Application be in the cause;
3.
The Application is supported by an Affidavit sworn by the Applicant. The Applicant avers that she was unable to immediately file the suit as contemplated due to financial constraints. However, when the suit was subsequently filed on 14 November 2023, the said date was beyond the statutory period as provided under Section 2(3)(b) of the Law Reform Act. Subsequently, the suit was withdrawn to enable the Applicant seek extension of the validity of the Limited Grant for purposes of filing a fresh suit.","4.
Section 2(3)(b) of the Law Reform Act provides that:
No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless either – proceedings are taken in respect thereof not later than 6 months after his executor or administrator took out representation.
5.
I note that there has been significant delay between the issuance of the Limited Grant in May 2021 and the filing of the suit in November 2023. It is not clear when the said suit was withdrawn, therefore, I am able to tell if there was substantial delay between its withdrawal and the present application dated 30 October 2024. Be that as it may, the reason advanced by the Applicant, being financial constraints, is a legitimate reason to warrant this Court’s indulgence.
6.
In the circumstances, I allow the Application dated 30 October 2024. Since the Application was ex parte, I make no orders as to costs.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4492/eng@2025-04-08
Succession Cause 111 of 2013,In re Estate of Kibicho Wanjie (Deceased) (Succession Cause 111 of 2013) [2025] KEHC 4593 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Kerugoya,High Court,RM Mwongo,8 April 2025,2025.0,Kirinyaga,Family,Stephen Mugo Kibicho v Jemima Njoki Kibicho (DCD) & Millicent Wangari Kibicho & John Muriithi Kibicho,[2025] KEHC 4593 (KLR) ,,"1.
The deceased died on 27/10/2006 domiciled in Kirinyaga (District). A grant of letters of administration to the estate of the deceased was jointly issued to the petitioner and Jemima Njoki Kibicho (now deceased), who were the deceased’s son and wife. The petitioner filed summons for confirmation of grant dated 01st February 2021, the subject of the present protest.
2.
In the affidavit supporting the summons, the petitioner stated that the deceased was survived by his late wife and 5 children. He named them as Jemima Njoki Kibicho (deceased), Stephen Mugo Kibicho, Rose Wangari, James Muriuki, Millicent Wangari and John Muriithi.
3.
He also listed the properties, stocks and bank accounts forming the estate of the deceased, and proposed that the estate be distributed as follows:
1.
Land parcel number Mwerua/Gitaku/561 measuring 6.79 acres:
a.
Stephen Mugo Kibicho - 1 acre
b.
Rose Wangari - 1 acre
c.
James Muriuki - 1 acre
d.
Millicent Wangari - 2.89 acres
e.
John Muriithi - 0.9 acre
2.
Land parcel number Mwerua/Gitaku/562 measuring 2.1 acres
a.
John Muriithi- 2.1 acres
3.
Half share in plot no. 125 Kagio: to be jointly held in equal shares by the 5 children of the deceased
4.
Shares in Cooperative Bank: to be shared equally among the 5 children of the deceased.
5.
Shares in Kimmi Housing Limited: to be shared equally among the 5 children of the deceased.
6.
Munyaka shares: to be shared equally among the 5 children of the deceased.
7.
Mwirua Cooperative Society shares: to be shared equally among the 5 children of the deceased.
8.
Funds in KCB Kerugoya: to be shared equally among the 5 children of the deceased.","Analysis and Determination
19.
PW1, the 2nd protestor testified that prior to his death, the deceased left land parcel numbers Mwerua/Gitaku/561 and 562 to her and the 3rd protestor since they were already living there. She stated that the deceased did not leave a will but that those were his oral wishes. It was her evidence that the petitioner and James Muriuki were already given land gifts by the deceased before he died and so they are not entitled to the estate.
20.
In rebuttal, RW1 and RW2 testified that they received land parcel numbers Mwerua/Gitaku/226 and 228 from the clan upon recommendation by the deceased in 1960. That the deceased received parcel number Mwerua/Gitaku/227 where he raised all his children (save for Rose Wangari) This parcel he later subdivided into the current Mwerua/Gitaku/561 and 562. The deceased intended that the 3rd protestor would get Mwerua/Gitaku/562 since all his other sons already had other parcels of land from the clan.
21.
All evidence in civil matters, including the evidence presented herein, is subject to the standard of proof, namely, on a balance of probabilities. Section 107 and 109 of the Evidence Act places the burden of proof on the alleging party. Through the affidavit of protest, the protestors produced copies of green cards for the properties Mwerua/Gitaku/226 and 228 showing that the properties were registered to them as first owners.
22.
This position is supported in their evidence that they received the land from the clan through adjudication in 1960. The land is not in the name of the deceased and cannot feature as part of the deceased’s estate. As to the argument that the land was given to them as a gift from the deceased, it was incumbent upon the protestors to provide clear evidence to prove this allegation. They have not done so.
23.
The estate of the deceased is made up of Mwerua/Gitaku/561 and 562 and half plot number 125 Kagio, together with stocks and money. Both parties are in agreement concerning distribution of the stocks and money; the disagreement is on the immovable property. From the testimonies, there is no doubt that the properties Mwerua/Gitaku/561 and 562 belonged to the deceased prior to his death. It has also been proved on a balance of probabilities that half of plot number 125 Kagio belonged to the deceased, having acquired it alongside the petitioner.
24.
How should the deceased’s property be distributed? The deceased had 5 children. His known wife is also deceased. The distribution herein is, therefore, subject to section 38 of the Law of Succession Act which provides:
“
Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”
25.
The petitioner gave his reasons for proposing distribution in the manner set out in his summons for confirmation. In the proposal, the 2nd protestor will set a fairly larger portion of the property Mwerua/Gitaku/561 than the others. The 3rd protestor got a smaller portion of Mwerua/Gitaku/561, but also the whole of Mwerua/Gitaku/562. The summons for confirmation proposes distribution of half of the plot 125 Kagio amongst the 5 children in equal shares.
26.
The court endeavors to attain equitable distribution of the estate given the circumstances at hand. In Black’s Law Dictionary, 9th Edition ‘equitable’ means ‘Just; consistent with principles of justice and right; Existing in equity; available or sustainable by an action in equity, or under the rules and principles of equity’.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4593/eng@2025-04-08
Miscellaneous Succession Cause 86 of 2013,In re Estate of Ngare Munene Gakuya (Deceased) (Miscellaneous Succession Cause 86 of 2013) [2025] KEHC 4574 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Kerugoya,High Court,RM Mwongo,8 April 2025,2025.0,Kirinyaga,Family,Faith Wamwea Mbogo v Janefer Njeri Ngare,[2025] KEHC 4574 (KLR)    ,,"1.
The deceased died in 1985. A grant was issued to Jennifer Njeri Ngari the respondent herein, in SRM Succ No. 64 of 2004, Kerugoya. The grant was confirmed on13th May 2005. The only property of the estate was indicated as Baragwe/Guama/52.
2.
The applicant filed summons for revocation of grant dated 16th September 2006 seeking that the grant issued to the respondent in the estate of the deceased revoked. The application is premised on grounds that:
1.
The proceedings to obtain the grant were defective in substance;
2.
That the grant was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the case;
3.
The grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
4.
In any event, the person to whom the grant was issued was not entitled to it as she is not a legal dependent and/or beneficiary of the estate and even the deceased was not entitled to the parcel of land in dispute; and
5.
The grant had become useless and inoperative through subsequent circumstances.
3.
The summons is supported by an affidavit sworn by the applicant in which she stated that land parcel number Baragwe/Guama/52 was registered in the name of her brother-in-law, the late Ireri Mbogo. Through Kerugoya Principal Magistrate’s Court Succession Cause No.64 of 2004, the land was transferred to the deceased herein and in March 1993, she filed another suit being Kerugoya Principal Magistrate’s Court Succession Cause No.76 of 1993 seeking to have the land reverted back to the name of the late Ireri Mbogo, its original owner.
4.
The respondent’s counsel objected to the suit on grounds of the applicant’s capacity to sue. The respondent’s objection was dismissed and the respondent appealed at the Court of Appeal where the appeal was dismissed. It became paramount that for her suit to be determined, the file Kerugoya Principal Magistrate’s Court Succession Cause No.64 of 2004 would need to be presented before the court in Kerugoya Principal Magistrate’s Court Succession Cause No. 76 of 1993, and she planned for this to be done.
5.
During the pendency of the determination of Kerugoya Principal Magistrate’s Court Succession Cause No.76 of 1993, the respondent petitioned for a grant through Kerugoya Principal Magistrate’s Court Succession Cause No.64 of 2004 without notifying any relatives or family members of the original owner of the land. The grant was issued to the respondent and it was confirmed as already indicated herein.
6.
The applicant deposed that the original owner of the suit land, the late Ireri Mbogo was a person of unsound mind and he died in the year 2005. According to the applicant, the late Ireri Mbogo did not have legal capacity to transfer the land owing to his mental incapacity. Regardless, the deceased herein somehow acquired the property from the late Ireri Mbogo through a transfer of land transaction with the transfer form duly executed. The deceased herein died on 17th February 1985. However, a search of the property indicates that the property was registered to the deceased herein posthumously in 1993 pursuant to a transfer instrument executed by the parties in 1991.
7.
The applicant stated that neither the respondent herein, nor her husband, the deceased herein are entitled to the land since it was obtained through fraud. That at the point of issuing the grant, the respondent concealed from the court the material fact that the property does not form part of the estate of the deceased. The applicant asserts that the respondent also concealed that the land was not legally obtained. On these grounds, the applicant urged the court to revoke the grant which was obtained fraudulently without involving the family of the late Ireri Mbogo, the rightful owner of the land. That she was also left out of the proceedings as a sister-in-law of the deceased.","22.
The question of jurisdiction has arisen through the respondent’s submissions. Given the importance of that matter, it takes precedence. It has been long established that a court finding itself without jurisdiction must down its tools immediately. This was underscored by the Court of Appeal in the locus classicus case of Owners of The Motor Vessel “Lillian S v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR). The court in that case stated:
“
Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
23.
The summons before this court, on its face, speaks of revocation of a grant. However, a deeper look at the pleadings and evidence that should culminate into a determination of the issue of revocation, reveals an underlying disputed question of land ownership and acquisition. In other words, whilst the issue of revocation is strongly raised before this family court, its root is anchored deeply within a land dispute. In fact, the land in question is the only issue concerned in the property purportedly forming the estate of the deceased.
24.
A court sitting to determine a succession cause is bound to do so using the Law of Succession Act to: Identify the deceased; appoint a personal representative of the deceased; identify the deceased’s estate; the beneficiaries of the deceased; and then determine distribution of that defined estate amongst the rightful beneficiaries. This, in essence, is the meaning of administration of an estate. All other issues arising in succession should be limited to identification of the estate and beneficiaries, and the administration or distribution thereof.
25.
Indeed, the preamble to the Law of Succession Act indicates that the object of the Act is to:
“
amend, define and consolidate the law relating to intestate and testamentary succession and the administration of estates of deceased persons; and for purposes connected therewith and incidental thereto”
26.
Thus, where an issue arises concerning the acquisition of that estate, the succession court is immediately stripped of its jurisdiction as the question falls within the purview of land law under the jurisdiction of the Environment and Land Court. More importantly, the Law of Succession Act was designed to safeguard the administration of the estate from external issues through the provisions thereof, including Section 76 on revocation of grants.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4574/eng@2025-04-08
Succession Cause E1331 of 2021,In re Estate of Samuel Nganga alias Samuel Kimani Nganga (Deceased) (Succession Cause E1331 of 2021) [2025] KEHC 4403 (KLR) (Family) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,H Namisi,8 April 2025,2025.0,Nairobi,Family,Thomas Kamau Kimani & Nicholas Arthur Kinuthia Kimani v David Nganga Kimani,[2025] KEHC 4403 (KLR)   ,,"1.
Before the Court is Summons dated 11 December 2024 seeking the following orders:
i.
Spent
ii.
That this Honourable Court be pleased to orders that the Thomas Kamau Kimani And Nicholas Arthur Kinuthia Nganga be appointed as co administrators of the estate and a grant of Letters of Administration intestate amended accordingly;
iii.
That this Honourable Court be pleased to issue preservative orders restraining the Respondent, his agents, servants, employees or other assigns or representatives from collecting rent, managing, selling, disposal of, sub-dividing, alienating, wasting, leasing and otherwise intermeddling in any way with the property of the deceased known as L.R. Ngong/Ngong/XXXXX pending hearing and determination of this application and issuance of certificate of confirmation of the Grant of the estate of the Deceased;
iv.
That this Honourable Court be pleased to issue an order directing the Respondent to render true and just accounts of all rental income and proceeds so far received by the Respondent in respect of property known as L.R. Ngong/Ngong/XXXXX from the date of death of the previous Administrator, Yuster Nyamwitha Kimani, to date in full account;
v.
That this Honourable court be pleased to order that all the estate income and rent from L.R. Ngong/Ngong/XXXXX be deposited by the tenants directly into the deceased’s Standard Chartered Bank account number 01501057XXXXX pending hearing and determination of the application;
vi.
That L.R. Ngong/Ngong/XXXXX be included as an asset of the Estate and be distributed accordingly;
vii.
Any other orders that are deemed just and expedient that will meet the end of justice.
2.
The Application is supported by the Affidavit sworn by the 1st Applicant and premised on the following grounds:
a.
The Respondent, the eldest brother, was issued with Grant of Letters of Administration of the estate of the Deceased on 25 October, 2021 and rectified on 26 June, 2024;
b.
Being the sole Administrator, the Respondent has been collecting rent due to the Estate from parcel of land L.R. Ngong/Ngong/XXXXX since April 2023 and disposing it of to the detriment of the estate and will continue to do so unless restrained by the Court;
c.
Misappropriation of funds collected by the Respondent from the estate of the Deceased parcel of land L.R. Ngong/Ngong/XXXXX will continue and there will be enhanced accountability by adding the 1st and 2nd Applicants as co-administrators;
d.
The property known as L.R. Ngong/Ngong/XXXXX was not listed as one of the assets of the Deceased as there was an ongoing matter Kajiado ELCA E006 of 2023 at the time of filing the succession cause which has since been determined in favour of the Estate. It is imperative to include and distribute it
e.
For proper and efficient management of the estate, the Applicants wish to be included as co administrators of their father’s estate;
f.
The Respondent has not been accountable on the usage of the funds collected from the estate of the Deceased and any attempts by the Applicants together with the Advocate for the Estate to settle the matter amicably have been futile;
g.
The Respondent has also expressed his intention to dispose off L.R. Ngong/Ngong/XXXXX and disinherit us;
h.
The interests of justice dictate that the orders sought be granted as no prejudice will be occasioned to the estate and/or the beneficiaries.","Analysis and Determination
7.
The Application is brought under section 45, 74 and 95 of the Law of Succession Act and Rules 43, 49, 69 and 73 of the Probate and Administration Rules.
8.
Section 45 of the Act relates to intermeddling and provides as follows:
(1)
Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
(2)
Any person who contravenes the provisions of this section shall-
(a)
be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
(b)
be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.
9.
Section 95 relates to offences by personal representatives and provides as follows:
Any personal representative who, as regards the estate in respect of which representation has been granted to him—
(a)
wilfully or recklessly neglects to get in any asset forming part of the estate, misapplies any such asset, or subjects any such asset to loss or damage; or
(b)
wilfully fails to produce to the court any such inventory or account as is required by the provisions of paragraphs (e) and (g) of section 83; or
(c)
wilfully or recklessly produces any such inventory or account which is false in any material particular; or
(d)
knowing or having reason to believe that the estate will prove to be insolvent, continues to administer it without petitioning for administration thereof in bankruptcy, shall be guilty of an offence, and shall be liable to a fine not exceeding ten thousand shillings, or to imprisonment for a term not exceeding one year, or to both such fine and imprisonment.
(2)
Any personal representative who, as regards the estate in respect of which representation has been granted to him if at any time there is a continuing trust and he is the sole surviving administrator, wilfully fails to apply to the court within three months in accordance with section 75A for the appointment of further administrators shall be guilty of an offence and shall be liable to a fine not exceeding five thousand shillings.",Court issues further directions,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4403/eng@2025-04-08
Succession Cause 457 of 2005,In re Estate of the Late Jane Kagure King'ori (Deceased) (Succession Cause 457 of 2005) [2025] KEHC 4512 (KLR) (Family) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,HK Chemitei,8 April 2025,2025.0,Nairobi ,Family,Nelson King'ori Gichuhi v Eric Warutere & Eunice Wairimu King'ori & Silvia Wambui King'ori,[2025] KEHC 4512 (KLR)  ,,"
1.
In his amended summons dated 8th June 2023 the Applicant prays for orders that:-
(a)
The asset LR No Aguthi/Gatitu/3197 be sold and the proceeds equally distributed to all the beneficiaries to complete the distribution of the estate.
(b)
The legal costs associated with the sale of the property to be shared equally among the beneficiaries.
2.
The application is based on the Applicant’s affidavit sworn on the same date and the grounds thereof.
3.
The gist of the application is that the Applicant is the widower and the Respondents are his children. The property namely Aguthi/Gatitu/3197 pursuant to the grant of this court is registered in the names of the four and the Applicant is holding it in trust for them.
4.
The Applicant deponed that he wishes to have the same fully distributed so that each of the children can have their share now that they are of age.
5.
The 1st Respondent Eric Warutere on his behalf and that of his two siblings has opposed the application on the grounds that the Applicant intends to disinherit them and relied on Section 38 of Cap 160. He deponed that the said property ought to be devolved to them and not the Applicant.
6.
That the property is too small to be subdivided into four shares. He therefore prays that the application be dismissed.
7.
The court directed the parties to file written submissions which they did and I have perused the same extensively together with the cited authorities.
8.
It is the submissions of the Respondents that the provisions of Section 38 of Cap 160 preclude the Applicant from dealing with the property and more so as a trustee his interest ends with simply holding the same in trust for the Respondents.
9.
What is evidently clear is that the property in question is registered in the four names and the Applicant is holding it in trust for the children. They have since attained the age of majority and capable of inheriting. That is the basic argument in the Applicants’ submissions.","10.
From the affidavits on record, it is agreed that the parcel of land is too small to have any meaningful subdivision and I guess that is the reason why the Applicant requested that it be sold and the proceeds divided equally.
11.
The Respondent’s contention is that their father has no right over the same pursuant to Section 38 of the Act. That he simply has a life interest.
12.
The Applicant relied on Section 35 of the Act and argued that he has a life interest in the estate of his wife.
13.
I think the two sections are distinguishable and clear. Section 38 states as hereunder:-
“
Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”
14.
In the above section the Act envisages a situation where the deceased left no surviving spouse. In the case at hand the Applicant is alive and according to Section 35(1) he has a life interest. The same states as hereunder:-
“
Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to—
(a)
the personal and household effects of the deceased absolutely; and
(b)
a life interest in the whole residue of the net intestate estate:
Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.” (Underlining mine)
15.
On the other hand, Section 37 gives the surviving spouse powers to deal with the property subject to the consent of the children and or the court. It goes on to state that:-
“
A surviving spouse entitled to a life interest under the provisions of section 35 or 36, with the consent of all co-trustees and all children of full age, or with the consent of the court, may, during the period of the life interest, sell any of the property subject to that interest if it is necessary for his own maintenance:
Provided that, in the case of immovable property, the exercise of that power shall always be subject to the consent of the court.”
16.
The record of the court confirms the toxic relationship between the Applicant and the Respondents. For reasons best known to them the Respondents have put hurdles on every step their father has attempted to take in regard to the deceased estate. They believe that their father should not have any interest in the estate.
17.
The saving grace however is that he has a life interest provided by the law and they have no right to deny him. They may have their differences but he is insulated. As a matter of fact, they are now adults and the law envisages that they ought to be venting for themselves.
18.
Odero J on 15th May 2023 found that all of them were beneficiaries to the estate and that cannot be wished away. The estate therefore must be distributed and closed and they part ways. Since he has a life interest the Applicants rights must be respected least of all by the Respondents.
19.
What he has sought to do is within the law, namely, distribute the estate so that he does not need to hold it in trust for the Respondents who have since attained the age of the majority.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4512/eng@2025-04-08
Succession Cause 105 of 2014,In re Estate of the Late Philip Chabeda (Deceased) (Succession Cause 105 of 2014) [2025] KEHC 4561 (KLR) (Family) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Law Courts),High Court,HK Chemitei,8 April 2025,2025.0,Nairobi,Family,Denny Naliava Chabeda v Jane Mideva Lomosi & Rose Karegi,[2025] KEHC 4561 (KLR)  ,,"1.
The Applicant/Objector who is the son to the deceased filed the objection herein amended and dated 11th January 2017 and asked the court for orders that:-
a.
The court revokes the letters of administration issued to the Respondents on 7th January 2015 as the same was acquired with concealment from the court of material facts.
b.
The cause be consolidated with Cause No. 49 of 2014 in Naivasha and the Naivasha cause be the lead file.
c.
The court do order the 1st Petitioner/Respondent to account for the rent collected in respect to flat number E4 Kibera Highrise since the demise of the deceased on 10th November 2011.
d.
The court do order the 1st Respondent to account for funds collected from Narok County Government since the deceased demise.
2.
When the matter came up for directions the court directed that the same be heard by way of oral evidence. The Applicant/Objector testified and did not call any witness. The Respondent as well testified and did not call any witnesses.
3.
While relying on his affidavits on record the Applicant testified that he was the third child of the deceased and that the 1st Respondent cohabited with the deceased but not as husband and wife. His reason was that the deceased did not introduce her as his wife and that there was no ceremony that was conducted whether civil or customary.
4.
He said that she was enjoying the properties of the estate having began the succession process without his knowledge. He specifically singled out the NHC highrise flat which according to him the 1st Respondent was renting it out. He demanded that the Respondent accounts for all the rent she has been collecting since the deceased demise.
5.
When cross examined, he admitted that in the limited letters of administration filed he sought from the court he included the 1st Respondent as one of the beneficiaries as she was her step mother.
6.
He said that he blamed her for the animosity within the family as there have been camps within the family. The 2nd Respondent who is his step sister had moved to the 1st Respondent’s camp.
7.
He said that by 1999 he was above 18 years and his father did not introduce her as his wife.
8.
In the minutes of the burial committee, he admitted that she was recognised as a wife.
9.
He admitted also that the chiefs letter dated 9.1.2011 identifies her as the deceased wife.
10.
The 1st Respondent admitted in her testimony that the Applicant was his step son and that he was married to the deceased for 18 years having married him in 1992. That by the time of his death he was still living with him.
11.
The Objector lived with her while still in school and that the deceased had 8 children but did not marry their mothers.
12.
As regards the law firm in Narok and the files she said that the same were taken over by advocate Mungai who was currently acting for the Objector despite the protest from the Law Society of Kenya (LSK). The entire results and payments of the legal fees were taken by the said advocate who has failed to account for it.
13.
When cross examined, she said that her marriage with the deceased was customary and that dowry was paid before the deceased was buried as the Luyha customs demands.","14.
I have perused the rival submissions on record by the parties as well as the cited authorities. They all generally gravitate around the issues raised in their rival affidavits and I need not reproduce them here.
15.
The main issues are whether the 1st Respondent was married to the deceased and a wife for that purpose and secondly and in view of the evidence tendered herein the grant ought to be revoked.
16.
The evidence on record in my view which is uncontroverted is that the deceased lived with the Respondent till his demise. There was no evidence to the contrary.
17.
The other uncontroverted evidence has to do with the Naivasha succession cause which was consolidated with this file. This file therefore became the lead file.
18.
The Objector did not deny the fact the they lived together with the deceased and the 1st Objector in one house while he was still a student and I find ridiculous the argument that his father did not introduce the 1st Respondent as his wife to him. This is absurd and completely out of normal customs and family expectations.
19.
His father had absolutely no reason to introduce his wife or girlfriend to his juvenile son. Neither did the Objector any right to demand such.
20.
I think the Respondent acquitted herself well when she testified that the Luyha customary rites of dowry before burial were performed and thus, she was recognised as a wife. Although there was no direct evidence the newspaper advertisement on record and the eulogy indicated that she was the deceased wife. I reckon that the same was consented to by the family or clan after the above rites.
21.
The Objector did not adduce any evidence to the contrary and in the premises and based on the facts on record and for all intent and purposes the 1st Objector was the deceased wife.
22.
In any case there was no evidence to the contrary that the deceased and the Respondent did not stay together as husband and wife for 18 years.
23.
On the issue of the National Housing house, I do not find any issue that is contrary. The property forms part of the estate. The same ought eventually to be distributed.
24.
As regards the rent collected the explanation that the same was used to rent a bigger house by the Objector was sufficient. Having found that she was the deceased wife, it becomes onerous to demand that she accounts for all the rent collected without any evidence of misuse advanced by the Objector.
25.
The same goes to the legal fees that was collected from the Narok county government. The Law society of Kenya in which the deceased was a member has protocols to be observed when a member dies. If indeed counsel Mungai who represented the Objector herein had issues regarding the management of the office as suggested by the 1st Objector then the Law society will be expected to inquire and ensure that the deceased estate is secured on behalf of his clients as well as the beneficiaries.
26.
In other words, any fees accruing therefrom to the deceased must benefit the estate just like any other assets left behind by the deceased. Nonetheless this is a matter which squarely falls under the ambit of LSK.
27.
The Naivasha file was later brought and consolidated with this file. The issues raised therein were similar, namely the issue relating to the estate of the deceased. The ruling of Meoli J on 21st November 2016 settled it when it revoked the grant dated 4th November 2015.
28.
The next question or issue before me is whether I should revoke the grant in line with Section 76 of the Act, Cap 160. The same states:-
“
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
a.
that the proceedings to obtain the grant were defective in substance;
b.
that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
c.
that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
d.
that the person to whom the grant was made has failed, after due notice and without reasonable cause either-
i.
to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
ii.
to proceed diligently with the administration of the estate; or
iii.
to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
e.
that the grant has become useless and inoperative through subsequent circumstances.”",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4561/eng@2025-04-08
Probate & Administration E151 of 2025,In re Estate of Wilfred Akhonya Mutubwa (Deceased) (Probate & Administration E151 of 2025) [2025] KEHC 4402 (KLR) (Family) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,H Namisi,8 April 2025,2025.0,Nairobi,Family,Virginia Wanjiku Njoki & Kennedy Mwinamo Ashimosi,[2025] KEHC 4402 (KLR)   ,,"1.
The Deceased herein, who was an Advocate, passed away on 26 November 2024 in Nairobi. He died intestate. The Petitioners have presented a Petition for Letters of Administration ad colligenda bona dated 14 March 2025 under section 67 of the Law of Succession Act. The same is presented seeking that the Grant of Letters of Administration ad colligenda bona be issued to Virginia Wanjiru Njoki And Kennedy Mwinamo Ashimosi and that the same be limited to accessing and obtaining information relating to accounts held by the Deceased at Stanbic Bank, ABSA Bank Kenya and Equity Bank Limited.
2.
The Petition is supported by an Affidavit sworn by Virginia Wanjiru Njoki And Kennedy Mwinamo Ashimosi. Virginia Wanjiru Njoki is the widow to the Deceased, while Kennedy Mwinamo Ashimosi is a family friend.
3.
Dosiana Olivia Mukwilu, a named Beneficiary and mother to the Deceased, has presented a consent dated 14 March 2025 for the issuance of the limited Grant to the Petitioners. She confirms that she fully understands that the same is intended solely for purposes of addressing urgent financial obligations such as rent, utilities, household expenses, medical bills, family upkeep and legal expenses of the Estate.
4.
The 1st Petitioner appeared before the Court and confirmed that there are 4 beneficiaries of the Estate; herself, two daughters and the Deceased’s mother, Dosiana Olivia Mukwilu. She indicated that she requires money for school fees, the medical cover, utilities and household expenses, insurance cover for the family car and legal fees for the Advocate representing her. She stated that she did not know the amount held in the accounts since such information is not forthcoming from the various banks without a grant of representation.
5.
Similarly, Kennedy Mwinamo Ashimosi appeared before the Court. He undertook to provide full accounts for the funds accessed from the various bank accounts
6.
The Petitioners presented a copy of the Certificate of Marriage between the 1ST Petitioner and the Deceased. In documents presented to this Court, there is a letter dated 25 February 2025 from the Senior Assistant Chief, Parklands Location, Nairobi confirming 4 beneficiaries of the estate. The extent of the estate is yet to be established.
7.
Further, there is a renewal notice from APA insurance for motor vehicle registration number KCP 794B for the period January 2025 to January 2026. The premium amount is Kshs 135,105. A second renewal notice is attached for motor vehicle registration number KDE 999T for the period April 2025 to April 2026.",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4402/eng@2025-04-08
Family Miscellaneous Application E006 of 2025,In re JGM (Subject) (Family Miscellaneous Application E006 of 2025) [2025] KEHC 4521 (KLR) (Family) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Law Courts),High Court,HK Chemitei,8 April 2025,2025.0,Nairobi,Family,,[2025] KEHC 4521 (KLR)     ,,"1.
This ruling relates to the application dated 14th January, 2025 filed by the Applicant, Agnes Muthoni Matu seeking for Orders That:-
a.
Spent.
b.
Spent.
(c)
This honourable court be pleased to issue an ex parte order appointing A. M. as J. G. M’s Guardian ad litem limited to giving instructions with regards to ongoing litigation at Milimani Law Courts, namely; (i) Chief Magistrates Court at Milimani Civil Case No. E3XXX of 2023 [JGM v Family Bank Ltd & Others] and (ii) Chief Magistrates Court at Milimani Civil Case No. 6XXX of 2024 [RKD v Duramed healthcare Limited & Others];
d.
J. G. M be and is hereby adjudged to be a person suffering from mental sickness under the Mental Health Act;
e.
A. M. M be appointed as J. G. M’s Guardian duly authorised to manage his affairs;
d.
The court be pleased to issue any other orders to meet the ends of justice.
2.
The application is supported affidavit sworn by Agnes Muthoni Matu on 14th January, 2025.
3.
She avers inter alia that she is the former wife of J.G.M., with whom they have four children. Although their marriage was officially dissolved on 4th April, 2022, she has remained involved in his care due to his declining health. J.G.M. has a history of serious health issues, including diabetes diagnosed in 2010, which progressed to high blood pressure, glaucoma (now at end stage with complete vision loss) and recurrent strokes - four since 2019 with the latest two in 2023 and 2024 classified as severe cerebrovascular accidents.
4.
These conditions have significantly impacted his mental capacity, leaving him unable to comprehend basic instructions or perform simple cognitive tasks. Despite efforts to maintain his mental health through treatment at Mathari Teaching and Referral Hospital, his condition continues to decline.
5.
In 2024, based on medical advice, she sought a forensic mental assessment for him, which requires a court order due to hospital privacy standards. J.G.M. also suffers from kidney complications and sees a nephrologist regularly. Since 2023, he has been living with her and their children, during which time she has witnessed firsthand the extent of his mental and physical challenges. He now requires continuous care, including specialized medical and nursing attention.
6.
In addition, he is involved in the following legal proceedings: Milimani CMCC No. E3XXX of 2023 against Family Bank Ltd concerning the attempted sale of his assets and a suit filed against him by a co-director in Duramed Healthcare Ltd - Milimani CMCC No. E6XXX of 2024. Given his incapacity and the legal matters at hand, the applicant seeks to be appointed as guardian ad litem to manage his affairs, provide instructions to his legal counsel and ensure the protection of his interests. She assures the court of her readiness to serve in good faith, emphasizing that his wellbeing directly affects their children's future.
7.
The application is unopposed and there are no written submissions filed.","8.
I have carefully considered the application and the annexed medical reports on record.
9.
Though the applicant and the ward have had a very interesting history and it appears that she is coming in to aid him at these difficult times.
10.
I am satisfied with the medical history provided and in the premises find the application meritorious.
11.
In In re WKM (Subject) (Miscellaneous Application E138 of 2023) [2023] KEHC 22202 (KLR) (7 July 2023) (Ruling) the court pronounced itself as follows:-
“
6.
Section 2 of the Mental Health Act cap 248 provides as follows;
“A person suffering from mental disorder” means a person who has been found to be suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and suffering from mental impairment due to alcohol or substance abuse.”
7.
On empowering the court to grant orders as sought by the applicant, section 26 of the Mental Health Act cap 248 provides as hereunder:-
“(1) The court may make orders:
a)
For the management of the estate of any person suffering from mental disorder, and
b)
For the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person
c)
Where there is no known relative or other suitable person, the court may order that the Public Trustee be appointed manager of the estate and guardian of any such person.
d)
Where upon inquiries it is found that the person to whom the inquiry relates is suffering from mental disorder to such an extent as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others or likely to act in a manner offensive to public decency, the court may make such orders as it may think just for the management of the estate of such person, including proper provision for his maintenance and for the maintenance of such members of his family as are dependent upon him for maintenance, but need not, in such case, make any order as to the custody of the person suffering from mental disorder.”
In making reference to section 26 and 27 of the Mental Health Act, Charles Kariuki J in the case of Re SWM (Patient) [2022] eKLR stated as follows:-
“The court in Re N M K [2017] eKLR considered what should guide the court when applying Section 26 and 27 of cap 248. The held as follows:-
“In considering an application brought under sections 26 and 27 of the Mental Health Act, the court is guided by three main factors:
There must be medical evidence warranting the determination by the court that the Subject suffers from mental disorder;
The person to be appointed to be either a Guardian or Manager must be fit to be so appointed;
The court must be satisfied that a proposed Manager will utilize her powers for the benefit and welfare of the Subject.”
Similarly, in re Estate VFM (Patient) [2020] eKLR, the court held that:
a)
For the court to grant the application for appointment of a manager of the estate and guardian to the patient, the petitioner/applicant is duty bound to prove that:
b)
There exists medical proof by show of evidence confirming that the subject suffers from mental disorder.
c)
The petitioner/applicant seeking to be appointed as manager or guardian must be legally fit to be so appointed.
d)
That due to the subject’s mental disorder, he or she is incapable of managing his/her own affairs independently and responsibly.
e)
That the proposed manager/guardian will manage the subject’s property effectively and efficiently for the benefit of the estate and welfare of the subject.
The court in in Re N M K [supra] stated that the overall guiding principle in applying all these factors must be the welfare and best interests of the subject.”
12.
The application is therefore allowed as prayed and the Applicant directed to comply with all the provisions of the Mental Act.
13.
Costs in the cause.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4521/eng@2025-04-08
Miscellaneous Civil Application E003 of 2025,In re WKAL (Subject) (Miscellaneous Civil Application E003 of 2025) [2025] KEHC 4536 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Kapsabet,High Court,JR Karanja,8 April 2025,2025.0,Nandi,Family,GC & WCK,[2025] KEHC 4536 (KLR)     ,,"1.
The chamber summons dated 10th February 2025, is an application by GC and WCK [Applicants] made under Section 26 of the Mental Health Act and Order 32 Rule 15 of the Civil Procedure Rules seeking orders to the effect that: -
a.
WKAL [subject] be produced in court for the purposes of an inquiry by the Court to establish whether by reason of mental infirmity he is incapable of protecting his interests.
b.
GC and WCK be appointed guardian ad litem of WKAL.
2.
The application is based on the grounds that the Applicants are the daughters of the subject WKAL who was medically evaluated and diagnosed with dementia likely secondary to normal pressure hydrocephalus and is currently in a poor state as to make judgement and is reliant on other persons for self-care including cleaning, feeding and movement. Further that, owing to his medical condition, the subject is incapable of defending his interests resulting to mismanagement of his property and finances.
The averments in the supporting affidavits of the applicants dated 10th February 2025 serve to enhance and solidify the supporting grounds with a contention that parcels of land being Nandi/Kipsigak/1X8 and Nandi/Kaboi/1X0 belonging to the subject are on the verge of being transferred without his consent.
3.
Order 32 of the Civil Procedure Rules provides for suits by or against minors and person of unsound mind and Rule 15 of the Provision provides for application of rules to persons of unsound mind in the following terms: -
“
The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the court on inquiry by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interest when suing or being sued.”
4.
The Mental Health Act [Cap 248 Laws of Kenya], “inter-alia” provides for treatment and general management of persons with mental illness and for connected purposes. Its purpose and scope includes ensuring that the rights of persons with mental illness are protected and safeguarded.
Section 26[1] of the Act states that: -
“
An application for an order for the management and administration of the estate of a person with mental illness may be made to the court, in the following order of priority by: -
a.
A supporter of the person with mental illness, or
b.
The representative of the person where the person with mental illness has not appointed a supporter”.
5.
Under Section 2 of the Act, a “supporter” means a person appointed under Section 31 by the person with mental illness to make decisions on behalf of the person with mental illness according to the will and preference of the person with mental illness.
Part XII of the Act provides for care and administration of property of persons with mental illness. Section 26 of the Act falls under this part together with Section 27 which provides that: -
“
(1)
The court may make such an order as it considers necessary for the administration and management of the estate of any person with mental illness including: -
(a)
An order making provision for the maintenance of the person.
(b)
An order making provision for the maintenance of members of the person’s immediate family who are dependent upon the person, and
(c)
An order making provision for payment of the person’s debts.
(2)
The Court may appoint, a manager of the estate of a person with mental illness for the purposes of safeguarding the property of that person.
(3)
The Court may for the purposes of Section [1], appoint the supporter or the representative of the person with mental illness as the manager of the estate of the person under subsection [2].",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4536/eng@2025-04-08
Originating Summons 49 of 2007,JRKN v RGN (Originating Summons 49 of 2007) [2025] KEHC 4596 (KLR) (Family) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Law Courts),High Court,HK Chemitei,8 April 2025,2025.0,Nairobi,Family,JRKN v RGN,[2025] KEHC 4596 (KLR)       ,,"1.
In the Originating Summons dated 16th October 2007 the Plaintiff seeks orders that she is entitled to 50% share in the properties mentioned therein namely:-
(a)
LR Mainland North /Section 1/ 7X3,7X4,1XX6
(Apartment 242).
(b)
LR No. 209/ 1XX54 .
(c)
LR No. 209/1XX55.
(d)
Kajiado/Kaputiei North 1XX5.
(e)
LR No. 1XX54/3 Maragua.
(f)
Nginda/Samar/Block 2XX6.
(g)
Nginda/Samar Block 2XX5.
(h)
LR No. 2X9/8XX6/2X4.
(i)
Kajiado/Kaputiei North/1XX0.
(j)
Kajiado/Kaputiei North1/1XX5.
(k)
Beach plot in Likoni Mombasa.
(l)
Kajiado/Kaputiei/6XX4.
(m)
Other properties in Juja and Mombasa.
(n)
Motor vehicles registration numbers KAK 0X4 Z m/benz, KAM 2X9 pick up, KAH 7X7 range rover, KAD 9X2 M/BENZ.
(0)
Shares in Themis Investment limited, Rural Assets Credit Limited, Themis Industrial Limited and Intra Trade (UK).
2.
The Respondent in response swore a replying affidavit dated 29th November 2007.
3.
The matter after a long period proceeded to a full trial where the Plaintiff testified and called one witness. The Defendant on his part testified and did not call any witness.
4.
Both parties adopted their statements which are on record in establishing their case.
5.
What can easily be cleaned from the entire spectrum of the evidence by both sides is that they cohabited as husband and wife from the year 1984 and they were blessed with two children. The third child however was sired by the Defendant in another relationship but she was brought in under their care and custody.","31.
I have carefully gone through the proceedings conducted by my earlier colleagues as well as the submissions on record and the cited authorities.
32.
What is evident is that the Plaintiff and the Defendant were husband and wife for all intent and purposes. The divorce proceedings under Case Number 100 of 2013 states as much.
33.
The Defendant acknowledges that they parted ways in January 2004 and save for the children whom both of them attended to, they lived separately till the divorce proceedings went through on 16th June 2017.
34.
Looking therefore at the whole spectrum from 1984 to 2004, a period of close to 20 years it is not in doubt that they lived as husband-and-wife contrary to the assertion by the Defendant that they lived intermittently. It means therefore that whatever decisions taken at that time whether to purchase or to sale properties were made during coverture and the only issue for this court to determine is the contribution by each of them.
35.
I have no doubt in my mind that LR No. 209/8336/244 Loresho Nairobi is a matrimonial home just as it was admitted by the parties. There is sufficient evidence that that is where they stayed and raised their children.
36.
The same was purchased through the loan /mortgage taken by the Defendant. The repayment of the loan was undertaken during coverture and the Plaintiff as a wife in her own way contributed to the repayment albeit indirectly.
37.
The business of taking care of the family, the children and the Defendant in ensuring comfort at home in many ways may not be quantified but it is now considered and generally accepted as a contribution to the family property acquisition.
38.
Section 14 of the Act provides as hereunder:-
“
Where matrimonial property is acquired during marriage—
(a)
in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and
(b)
in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.”
39.
To this extent therefore I find that though the Loresho home is registered in the name of the Defendant acquired through a mortgage I hold that the Plaintiff played a part in its acquisition.
40.
Taking the whole issue into consideration I find that in totality the Plaintiff is entitled to 35% thereof.
41.
As regards the rest of the properties especially those enumerated on the face of the OS I agree with the Plaintiff that although she was not a director of the companies I find for instance that Themis Investments Limited was registered on 6th October 1985 and the directors are the Defendant and one Mureka Gatheca, she however gave the Defendant the opportunity to undertake such ventures like running the said company without any let or hinderances.
42.
In other words, although he is insulated by the company laws, he cannot however wish away the contribution by the Plaintiff. A classic example which is not disputed is the contract to airlift the Kenyan soldiers to Yugoslavia which brought in substantial sum of income to the company. As a result of the said earnings, it is evident that the couple through the said company managed to accumulate property.
43.
As for the other companies I find that most of them were acquired after the year 2004 when the couples had parted ways. It will be remiss for this court to deal with the said companies without any evidence of contribution by the Plaintiff post 2004.
44.
The same goes for the bank accounts. There was no sufficient evidence to suggest or prove to the court that the Defendant or the company for that matter held accounts in the banks suggested in the oral evidence.
45.
It will not be reasonable and equitable to allow the Defendant under the guise of the company law to hide whatever he owned when the marriage was subsisting. What he holds under the company is on trust for and on behalf of his former wife.
46.
In the premises the Defendant’s entitlement whether through shares or shareholding in Themis Investments Limited constitute 35% of the Plaintiff’s contribution.
47.
In Mradula Suresh Kantaria v. Suresh Nanalal Kantaria (2007) eKLR the court extensively stated that:-
“
Charlesworth and Morse: Company Law (14th Edition) at paragraph 27 – 28, lays down the applicable principle of law thus:
“
It was established in Solomon versus Solomon and Co. Ltd that a registered company is a legal person separate from its members. This principle may be referred as ‘the veil of incorporation’. In general the law will not go behind the separate personality of the company to the members, so that, for example in Macaura Versus Northern Assurance Co. Ltd, ante, it was held that the largest shareholder had no insurable interest in the property of the company. Similarly an employee cannot bring an action for unfair dismissal against the majority shareholder of a company, which employed him. However there are exceptions to the principle in Solomon’s case where the veil is lifted and the law disregards the corporate entity and pays regard instead to the economic realities behind the legal façade. In these exceptional cases the law either goes behind the corporate personality to the individual members, or ignores the separate personality of each company in favour of the economic entity constituted by a group of associated concerns.”
Applying the above principal in the case of Corporate Insurance Co. Ltd V. Savemax Insurance Brokers (2002) IEA 41, Ringera, J (as he then was) stated at p.46: -
“
And it is a well known principle of company law that the veil of incorporation may be lifted where it is shown that the company was incorporated with or was carrying on business as no more than a cloack, mask or sham, a devise or stratagem for enabling the directors to hide themselves from the eye of equity. That may well be so if on the evidence it is clear that the directors have dealt with the assets and resources of the company as their personal bounty for use for their own purposes. Such facts may well be disclosed in the examination of the directors or in affidavits filed… On principle I see no reason why the veil cannot be lifted at the execution stage ….”
Considering the same principle as applied in the case above Mbaluto, J also in Caneland Ltd V. Dolphin Holdings Ltd and another (1999) I EA, 29 stated thus –
“
As shown above, the courts have refused to permit the logic of the principle laid down in Solomon’s case to apply ‘where it is too flagrantly opposed to justice, convenience or interests of the Revenue (Gower- Ed at 112) and will disregard the fundamental principle of corporate personality if justice warrants it. Equity will not permit a statute or indeed law to be a cloak for fraud. In my judgment this is one of those cases where the corporate veil ought to be lifted because given the special circumstances of this case, it would be tantamount to allowing a debtor to hide behind the cloak of corporate identity to avoid meeting its legal obligations…”
48.
In view of the above findings, I therefore hold that in the matrimonial property proved in this court the Plaintiff holds 35% and the Defendant 65 %. The higher percentage in my view is for the simple reason that the Defendant was hands on all along and several loans were obtained by him to sustain the same and by extension the education and upkeep of the children.
49.
The only unproven fact is the registration of the properties. I have perused the records and it appears to me that there are no much records indicating the registered proprietors of the said assets. Nothing however is lost to the parties as they shall be at liberty to apply.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4596/eng@2025-04-08
Criminal Appeal E179 of 2023,Kadenge v Republic (Criminal Appeal E179 of 2023) [2025] KEHC 4541 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Commercial Courts),High Court,Cj Kendagor,8 April 2025,2025.0,Nairobi,Criminal,Philadephia Kadenge v Republic,[2025] KEHC 4541 (KLR)     ,,"1.
The Appellant was charged with the offence of Defilement contrary to Section 8 (1), read together with Section 8 (2) of the Sexual Offences Act. He had an alternative count of committing an indecent act with a child contrary to Section 11 (1) of the said Act. He was found guilty of defilement and was convicted. He was sentenced to 2 years of placement, with one year being non-custodial, but to be placed in a custodial facility in the year 2024.
2.
He was dissatisfied with the conviction and the sentence and appealed to this Court through a Petition of Appeal dated 13th June, 2023. He listed the following Grounds of Appeal;
1.
That the Honourable Magistrate erred in law and fact in failing to appreciate that no case had been demonstrated by the Prosecution to warrant a finding of guilt on the Appellant.
2.
That the Honourable Magistrate erred in making sweeping findings devoid of any analysis of the material evidence, issues and facts presented before her.
3.
That the Honourable Magistrate erred in law and fact in failing to consider and analyze the testimony by the Appellant, his witness and the submissions made by the Appellant.
4.
That the Honourable Magistrate erred in law and fact in rendering a judgment that only contained an introduction and a finding and completely lacking of a reason(s) for the findings.
5.
That the Honourable Magistrate erred in law and fact in dealing with the trial before her in a very casual manner devoid of elaborate reasoning as required in judicial decisions.
6.
That the Honourable Magistrate erred in law and in fact in concluding that the offense of defilement was proved without considering and analyzing the evidence of the Clinical Officer.
7.
That the Honourable Magistrate erred in law and fact in overlying on an unsworn testimony by PW1 which was also not corroborated.
8.
That the Honourable Magistrate erred in law and fact in assuming that the presence of a broken hymen was complete evidence and proof of defilement.
9.
That the Honourable Magistrate erred in law and fact in failing to appreciate that the casual approach she adopted in failing to deliver the judgment for almost eight (8) months since the close of Defence case was a violation of Article 50 and 53 (2) of the Constitution and the principle of the Best Interests of the Child.
10.
That the Honourable Magistrate erred in law and fact in unnecessary detaining the Appellant from the 28th April 2023 to the 29th May 2023 awaiting for a Placement Ruling which approach was a violation of Article 50 of the Constitution.
11.
That the Learned trial Magistrate erred in law and fact in dealing with the matters before her arbitrarily, casually and on whims rather than on analysis of evidence as by law required.
12.
That the Honourable Magistrate erred in law in her insistence of detaining the minor after he sits of National Exams and her total disregard of the social inquiry report prepared by the Probation Office.
13.
That the finding of guilt in the present circumstances is dangerous and against the weight of the evidence.
3.
He requested this Court to set aside the conviction and sentence of the subordinate court and acquit him. The Appeal was canvassed by way of written submissions. The Respondent did not file submissions despite being given the opportunity to.","5.
Upon consideration of the facts of this case, the Grounds of Appeal and the submissions made by the Appellant, I find that there are two issues for determination;
a.
Whether the offence of defilement was proved to the required standard;
b.
Whether the Appellant was identified as the perpetrator;
c.
Whether the sentence imposed was appropriate.
6.
The role of this Court as the first appellate Court is well settled. In Okeno vs. Republic (1972) EA 32, the East Africa Court of Appeal gave an authoritative observation on the duty of the first Appellate court. It stated as follows;
“
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
7.
The above authority has since been adopted and affirmed more recently by the Court of Appeal in Peter Kifue Kiilu & another v Republic [2005] eKLR, where the Court held that the role of the first Appellate Court is not merely to scrutinize the evidence to see whether there was some evidence in support of the trial Court’s decision.
8.
Based on these authorities, this Court shall undertake a wholesome review of the evidence with a view to reaching its own conclusion. As I undertake this cause, I appreciate that the trial Court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.
9.
I have reviewed the testimonies of all the witnesses and I have summarized them as follows;
10.
The Complainant gave unsworn evidence, the trial Court opined from the viva voce evidence that she did not understand the solemnity of being in Court and the significance of swearing. She stated that the Appellant took her to the bathroom, closed the bathroom and removed her clothes. She stated that the Appellant then inserted his dudu to hers. She stated that she did not cry/shout because the Appellant told her to shut up. She stated that the Appellant’s mother found them in the bathroom and beat them both. On cross-examination she stated that the Appellant did tabia mbaya to her.
11.
The second witness was the Complainant’s mother. She stated that she took the Complainant to the hospital the same day. She mentioned that the child had not bathed when she got home and that they went to the hospital in that condition. She indicated that the child was examined at Nairobi Women’s Hospital. She produced the P3 form from Muthangari Police Station and filled out a PRC form at Nairobi Women’s Hospital. She also provided the Complainant’s birth notification. PW2 denied asking for money from the Complainant’s family in exchange for settling the matter.
12.
The Prosecution also called a Clinician from Nairobi Women’s Hospital. The clinician came to produce the medical report on behalf of her colleague, who had left the facility. He stated that she had worked with her former colleague for more than 2 years and that she was familiar with her colleague’s handwriting. He stated that the Complainant was examined on 16th November, 2021 at 1.20 am, and that the alleged defilement was reported to have happened on 15th November 2021 at 11pm. He stated that, according to the examination, the Complainant’s hymen was torn and had a laceration at 10 O’clock and that they had formed the opinion that there was penal-vaginal penetration with injury. In cross-examination, he stated that the hymen had injuries and that the injury from the tissue hymen was noticeable.
13.
The Appellant gave unsworn evidence in his defence. He admitted playing hide and seek with the Complainant and other kids but denied defiling the Complainant. He stated that they were not found in the bathroom, which he mentioned is far away and used by many people. He also stated that he thinks the Complainant was coached. According to the Appellant, they were beaten by their mother (DW2) for playing outside at night.
14.
The defence also called the Appellant’s mother. She stated that she did not find the Appellant and the complainant in the bathroom as alleged. She said that she did not know what happened and that she did not find the children naked. She told the Court that she did not know whether the Complainant was defiled. She said she beat the Appellant and the Complainant because they were playing at night, chasing each other in hide and seek. DW2 stated that the Complainant’s mother came to her house, quarrelling and demanding to know why DW2 had assaulted the Complainant. According to DW2, she explained that the children were playing hide and seek at night, and the mother (PW2) began to accuse the appellant of defiling the complainant.
15.
Section 8 of the Sexual Offences Act defines defilement as;
8(1)
A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.
Penetration is defined as;
“
means the partial or complete insertion of the genital organs of a person into the genital organs of another person.’
16.
In C.W.K v Republic [2015] eKLR, the Court highlighted the ingredients forming the offence of defilement;
“
The critical ingredients forming the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant.”
17.
The burden of proof rests with the prosecution to prove its case against the Appellant beyond reasonable doubt. In Stephen Nguli Mulili vs Republic [2014] eKLR, it was held that: -
“
It is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP V Woolmington, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See Festus Mukati Murwa vs. R, [2013] eKLR.”
18.
Age - I am satisfied that the Complainant’s minority age was proven to the required standard.
19.
Recognition – The Complainant and the Appellant know each other well as neighbours. On the material night, they were playing hide-and-seek, and there is evidence of an incident that occurred that night involving both of them and their parents, which led to the subsequent interventions and the case now before the Court.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4541/eng@2025-04-08
Matrimonial Cause E089 of 2022,LWK aka LWG v OGM (Matrimonial Cause E089 of 2022) [2025] KEHC 4552 (KLR) (Family) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Law Courts),High Court,HK Chemitei,8 April 2025,2025.0,Nairobi,Family,LWK AKA LWG v OGM,[2025] KEHC 4552 (KLR),,"1.
The Plaintiff and the Defendant marriage was dissolved and a decree absolute issued on 21st February 2020.
2.
During the coverture they had the following properties,
(a)
Nairobi block 82/XXXX
(b)
Kajiado/Kitengela/1XXX
(c)
Kajiado/Kitengela/19XXXX
(d)
Embu property
3.
The Plaintiff filed this suit seeking orders that the said properties which are registered in the Defendant’s name be declared matrimonial and the same be divided among the two.
4.
The Defendant though served did not prefer any defense. The matter went for formal proof where the Plaintiff testified and did not call any witnesses.
5.
In her testimony she said that they registered two companies namely Total Plus Bureau Company Limited while in Kenya and Total Plus Transport Inc. in the United States of America.",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4552/eng@2025-04-08
Miscellaneous Application E171 of 2025,Karanu v Registrar of Companies & another (Miscellaneous Application E171 of 2025) [2025] KEHC 4658 (KLR) (Civ) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,NW Sifuna,8 April 2025,2025.0,Nairobi,Civil,Richard Kamau Karanu v The Registrar of Companies & Attorney General,[2025] KEHC 4658 (KLR),,"1.
This ruling is from an Application by Dr Ann Muthoni Kamanu, and in which she is seeking to be joined in this Miscellaneous Cause as an Interested Party. The main reason she has stated for her proposed joinder, is that she is the Administrator and also beneficiary of the Late George Karanu who was her father.
2.
Order 1 Rule 10(2) of the Civil Procedure Rules allows for joinder of a party whose presence and or participation in the suit, is necessary to enable the court effectually adjudicate the issues in the suit. The proposed Interested Party being a beneficiary and Administrator of the Estate of George Karanu who was her father. The Applicant in the main cause has also mentioned her as part of the household of the deceased.
3.
This joinder Application has been considered by this Court in terms of the legal threshold for joinder stated in Order 1 Rule 10 of the Civil Procedure Rules, as well as the principles set by the Supreme Court of Kenya in the Mumo Matemu case.
4.
Cardinal among the requirements for such joinder is that the Applicant should demonstrate having a legally recognizable stake in the matter the subject of the suit, or is a necessary party whose presence and/or participation in the suit is necessary for the court to effectively adjudicate the issues in the suit; or is such a person as shall be affected by orders sought in the suit or likely to granted to the suit.
5.
Upon considering this joinder Application together with its Supporting Affidavit and the Response to it, I am satisfied that there is need to join the said Dr Anne Muthoni Karanu to this Miscellaneous Cause as an Interested Party.
6.
Consequently, her Application for joinder is hereby allowed; and she is consequently hereby joined in this Miscellaneous Cause, as an Interested Party. There shall be no orders as to the costs.",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4658/eng@2025-04-08
Civil Appeal E066 of 2024,Kassamali v Muteti (Civil Appeal E066 of 2024) [2025] KEHC 4591 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Voi,High Court,AN Ongeri,8 April 2025,2025.0,Taita Taveta,Civil,Taher Kassamali v Rose Katunge Muteti,[2025] KEHC 4591 (KLR),,"1.
The application coming for considering in this Ruling is the one dated 3rd December 2024 brought under Section 1A, 1B, 3A, 63(e), 79G and 95 of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010 seeking the following orders:-
i.
The application be and is hereby certified as urgent and service be dispensed with in the first instance.
ii.
There be a stay of execution of the Judgment and decree entered herein against the Appellant on 15th November 2024 pending the hearing and determination of this application.
iii.
There be a stay of execution of the Judgment entered against the Appellant on 15th November 2024 pending the hearing and determination of the arguable appeal herein.
iv.
The warrants of attachment and warrants of sale dated 25th November 2024 together with the proclamation notice be hereby set aside and or lifted.
v.
The costs of this application be provided for.
2.
The application is based on the following grounds:-
i.
That the Appellant is dissatisfied with the Judgment of the Court entered on 15th November 2024.
ii.
That the Appellant has lodged the instant appeal herein against the said judgment herein and if the Plaintiff is allowed to execute against the Appellant, the said appeal will be rendered nugatory and will be nothing short of an academic exercise.
iii.
The Respondent herein has proceeded to secure unlawful and irregular warrants of attachment and warrants of sale yet there is already an interim stay of execution of thirty (30) days that was granted by the occur ton 15th November 2024.
iv.
That the said stay is set to lapse on 14th December 2024; the warrants of attachment and sale are dated 25th November 2024.
v.
The Appellant’s appeal herein is arguable with overwhelming chances of success based on points of law.
vi.
That the Appellant is more than ready to abide by any conditions that this Honourable court will impose upon it as the court may deem fit and reasonable.
vii.
The Respondent’s financial ability to refund the decretal sum in the event the arguable appeal succeeds is unknown.
viii.
That the Appellant has sufficient cause for seeking the orders sought.
3.
It is supported by the affidavit of SUSAN KEMUNTO MONARI in which she deponed as follows:-
i.
That I am an advocate of the High Court of Kenya practicing under the firm of Mogaka Omwenga & Mabeya Advocates herein having conduct of this matter and conversant with the matter in issue and hence competent to swear this affidavit.
ii.
That I am aware that the Appellant is dissatisfied with the judgment delivered on 15th November 2024 and has filed the instant appeal herein.
iii.
That I am aware that on 15th November 2024 when I attended court to collect the subject judgment in Voi SCCOMM NO. E001 of 2024, there was a Ms. Nira for the Respondent herein and she did not object to my oral application for a thirty days stay, which was then granted.
iv.
That I am also aware that having been issued stay of execution on 15th November 2024 the same is set to expire on 14th December 2024; therefore the stay order is still in force.
v.
That I am aware that on 3rd December 2024 my client was served via whatsapp with illegal and unlawful warrants of attachment and warrants of sale both issued on 25th November 2024 by the trial court.
vi.
That I am also aware that the Applicant herein was also served with a proclamation dated 3rd December 2024 and an invoice of Kshs. 151,821.08 dated 3rd December 2024.
vii.
That if the Respondent is allowed to continue with the unlawful execution, the same will greatly be prejudicial to the appellant herein who has already lodged an appeal which has very high chances of success and a very bad precedent will have been set for auctioneers/advocates/litigants to carry out illegal and unlawful execution in blatant disregard of court orders.
viii.
That I verily believe that unless a stay of the unlawful execution of the said judgment is granted, the Appellant stands to suffer irreparably.
ix.
That it is only fair and reasonable that stay orders be granted and the lodged appeal is heard and determined to finality.
x.
That I verily believe that the Appellant’s appeal as filed herein is arguable with overwhelming chances of success.
xi.
That the Appellant is bound to lose substantially should the orders sought not be granted and the judgement sum will be beyond the Appellant’s reach in the event that the appeal is successful.
xii.
That the Respondent’s financial ability to refund the decretal sum if paid out is unknown.
xiii.
That the Appellant is ready to comply with any such conditions/terms as may be determined by this Honourable court for granting the orders sought.
xiv.
That I swear this affidavit while urging this Honourable court to further exercise its discretionary powers in favour of the Appellant and grant the orders sought in the application herein as prayed.",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4591/eng@2025-04-08
Commercial Appeal E228 of 2024,Kenya Commercial Bank Limited v Ndung’u & another (Commercial Appeal E228 of 2024) [2025] KEHC 4500 (KLR) (Commercial and Tax) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Commercial Courts),High Court,BM Musyoki,8 April 2025,2025.0,Nairobi,Commercal and Tax,Kenya Commercial Bank Limited v Joseph Karanja Ndung'u & Africa Merchant Assurance Company Limited,[2025] KEHC 4500 (KLR),,"1.
On 2nd August 2024, Honourable V.M. Mochache delivered a ruling allowing the 1st respondent’s application dated 25th April 2024. The court had on 1-05-2024 issued a decree nisi in favour of the 1st respondent attaching funds in the 2nd respondent’s bank accounts numbers 111XXXX867, 120XXXX558, 130XXXX595 and 1312XXXX233 held in the appellant’s bank and paybill account number 59XXXX99 and 545400 held with Safaricom PLC. The prayer for making the decree nisi absolute had been opposed by the appellant on the grounds that the accounts held with it had negative balances owing to locking of funds therein pursuant to earlier court orders in small claims court commercial cases numbers E3144 of 2023, E1336 of 2023 and E1281 of 2023 among others. The appellant in compliant with the court order also filed a further affidavit dated 16th July 2024 giving the updated status of the accounts.
2.
The appellant has raised an issue of jurisdiction claiming that the small claims court had no jurisdiction to hear and determine the suit. I don’t know why the appellant whose duty in this matter is to pay out the debt is so concerned with the suit to the extent that it wants the court to reopen it and go back to issues of jurisdiction which should have been determined before the suit was concluded. There is already a judgement in place against the judgment debtor and not against the appellant. The matter is at the execution stage whose procedure is governed by Order 22 of the Civil Procedure Rules. A decree of the court should by law be executed by the court which passed the decree and that is what the honourable adjudicator did in issuing the garnishee orders. In my view the issue of jurisdiction cannot be raised during execution more so by a person who was not a party to the case. This objection has no basis and the same is overruled.
3.
This appeal was disposed of by way of written submissions where the appellant filed submissions dated 19th November 2024 and the respondent filed its dated 2-12-2024. I have read the submissions by the both parties and the record of appeal and in my considered view, the only question for determination is whether the trial court was justified to issue decree absolute in the circumstances of the status of the 2nd respondent’s accounts.
4.
The effect of an order nisi is to block movement of funds from the judgment debtor’s account until the court in the specified matter either discharges the order nisi or a subsequent order absolute is issued. If the bank or the person so served with an order nisi moves the funds out of account without the leave of the court or the same being discharged, they would be in contempt of court. The appellant had produced statements showing several entries which had locked the funds in the account for various reasons including legal fees and others which are not explained. In her ruling, the Honourable Adjudicator held that unless the sums were locked to comply with any other previous orders nisi, there was nothing else that would take the sums away from the court’s reach. I do agree with the adjudicator that setting aside money for legal fees or unexplained reasons could not prevent issuing of order absolute.
5.
The appellant had in the replying affidavit admitted that the 2nd respondent held the mentioned account but explained that the order absolute could not issue because the accounts were encumbered as follows;
1.
Account number 111XXXX867 had a credit balance of Kshs 3,871,243.75 but a sum of Kshs 4,492,964.56 was locked leaving a balance of -621,720.81.
SUBPARA 2.
Account number 120XXXX558 had a credit balance of 260,811.87 but a sum of Kshs 261,231.87 was locked leaving a balance of Kshs -420.00.
3.
Account number 130XXXX595 had a credit balance of 2,376.35 but a sum of Kshs 2,343.35 was locked leaving a balance of Kshs 33.00.
4.
Account number 131XXXX231 had a credit balance of 4,105,985.80 but a sum of Kshs 3,474,387.00 was locked leaving a balance of Kshs 631,598.70.
5.
The credit balance of Kshs 631,598.70 in 4 above was locked by other decrees in small claims commercial cases numbers E3144 of 2023, E1336 of 2023 and E1281 of 2023. The total amount in these three orders which were exhibited as annexures CM5a, b, c and d was Kshs 741,280.00.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4500/eng@2025-04-08
Criminal Appeal E136 of 2024,Kibisu & another v Republic (Criminal Appeal E136 & E137 of 2024 (Consolidated)) [2025] KEHC 4467 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Kibera,High Court,DR Kavedza,8 April 2025,2025.0,Nairobi,Criminal,Alex Kibisu & Simon Peter Kimani v Republic,[2025] KEHC 4467 (KLR),,"1.
The appellants were jointly charged and after a full trial convicted of three counts of robbery with violence contrary to section 296(2) of the Penal Code. After a full trial, they were both sentenced to death.
2.
Being aggrieved, they filed the present appeal challenging their conviction and sentence. In their respective petitions of appeal, the appellants’ challenged the totality of the prosecution’s evidence against which they were convicted. They complained that the trial magistrate erroneously failed to consider their defence. They urged the court to quash their conviction and set aside the sentence imposed.
3.
This being a first appeal, it is the duty of this court as the first appellate court, to reconsider, re-evaluate, and re-analyse the evidence afresh and come to its own conclusion on that evidence. The court should however bear in mind that it did not see witnesses testify and give due consideration for that. (See Okeno v Republic [1972] EA 32).
4.
The prosecution called four (4) witnesses in support of their case. PW1, Caroline Wakio Mugo, testified that on the night of the incident at around 7:00 p.m., she was walking near Uhuru Gardens with two friends when they were accosted by three men on a boda boda. Two of the men were armed and ordered them to lie down while demanding their belongings. After robbing them, the assailants fled. The victims immediately reported the matter at Lang’ata Police Station and recorded statements.
5.
Later, PW1 was called for an identification parade, where she recognised the 1st appellant by a distinctive scar she had clearly seen during the well-lit incident. She also identified the 2nd appellant from the identification parade. PW2, Nyambura Wahome, and PW3, Virginia Wainaina, gave consistent accounts, confirming they were together during the robbery and also identified the appellants.
6.
PW4, Corporal Daniel Opiyo, the investigating officer, stated that after receiving the report, he visited the scene. He later traced the suspects when they were arrested for a different offence and held at Riruta Police Station. Their photos, circulated online, led to their identification by the complainants. He confi",,Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4467/eng@2025-04-08
Miscellaneous Civil Application E012 of 2024,Kimathia & 2 others v James Onkundi Omakori t/a Lifewood Traders Aucitioneers (Miscellaneous Civil Application E012 of 2024) [2025] KEHC 4439 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Kitale,High Court,RK Limo,8 April 2025,2025.0,Trans-Nzoia,Civil,David Kimathia & 2 Others & 2 Others v James Onkundi Omakori T/A Lifewood Traders Aucitioneers,[2025] KEHC 4439 (KLR),,"1.
David Kimathia & 2 Others not identified have moved this court through a Notice of Motion dated 8/3/2024 for the following orders;
i.
Spent
ii.
That this Hon. Court do grant the applicants leave to appeal out of time against judgment delivered on 26/2/24 vide Kitale CMCC Misc. Application No.39 of 2023.
iii.
That there be stay of execution of the decree and judgment in Kitale CMCC Misc. Application No.39 of 2023 pending determination of this application.
iv.
That there be a stay of execution of judgment and decree in Kitale CMCC Misc. Application No.39 of 2023 pending determination of the intended appeal.
v.
That costs be in the intended appeal.
2.
The grounds upon which this is based on application are listed as follows;
a.
That the respondent filed a suit claiming auctioneers fees via a bill dated 31/10/2023 against the appellants.
b.
That the applicants were unaware of the matter till later in January 2024 when they instructed an advocate to defend them and object to the bill by auctioneers as the proclamation and execution was carried out after the applicants had paid the full decretal amount to Gacathi Advocate in Kitale CMCC No.456 of 2016.
c.
That the instructed counsel thought the matter was coming for taxation only for a ruling to be delivered on 26/2/2024 and decree issued.
d.
That on 29/2/2024 the trial court issued warrant of attachment of movable property in execution of decree through Lifewood Auctioneers to remove the decrial sum of Kshs.78,609/-.
e.
That the respondent has started execution.
f.
That the applicants intend to appeal as they are aggrieved by the judgment entered on 26/2/2024.
g.
That this application has been filed timely and the applicants stand to suffer irreparable loss unless the prayers sought herein are granted.
h.
That the applicants have a good arguable appeal with high chances of success and the respondents will not suffer prejudice if the application is allowed.
3.
The applicants have supported the above grounds with an affidavit sworn on 8/3/2024 by David Kimathia where he has majorly reiterated the above listed grounds",,Struck Out,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4439/eng@2025-04-08
Criminal Appeal E150 of 2024,Kinoti v Republic (Criminal Appeal E150 of 2024) [2025] KEHC 4423 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Kibera,High Court,DR Kavedza,8 April 2025,2025.0,Nairobi,Criminal,Lawrence Kinoti v Republic,[2025] KEHC 4423 (KLR),,"1.
The appellant Lawrence Kinoti was jointly with others not before this court charged and convicted on two counts of offences namely: Being in possession of wildlife trophy contrary to section 95 of the Wildlife Conservation and Management Act 2013 and dealing in Wildlife Trophy Contrary to section 84(1) as read with section 92 of the Wildlife Conservation and Management Act, 2013. He was sentenced to pay a fine of Kshs. 1 million in default to serve 5 years imprisonment in count I, and a fine of Kshs. 20 million in default to serve 3 years imprisonment. The sentences were to run consecutively.
2.
Aggrieved, the appellant filed the present appeal challenging his conviction and sentence. The appellant challenged the totality of the prosecution's evidence against which he was convicted. He complained that the defence was not considered and the sentence imposed was harsh and excessive. He urged the court to quash the conviction and set aside the sentence imposed.
3.
Before grappling with the grounds of appeal aforesaid, I am mindful that the first appellate court is under duty to re-evaluate the evidence presented at trial and draw its own independent conclusions. Except, it must bear in mind that it neither saw nor heard the witnesses give their testimonies. Thus, matters of demeanour are best observed by the trial court. (See Okeno v Republic [1972] E.A 32.)
4.
Assistant Warden Said Kurera (PW4) testified that he received information from Abdi Hassan regarding individuals dealing in wildlife trophies near the Rio Hotel in Nairobi West. He was provided with a description of two suspects. Upon arrival at the scene around 10:30 AM, he observed three individuals matching the given description. He also noticed that they were carrying a green paper bag containing what appeared to be ivory. As they approached the suspects, one individual fled while the officers attempted to verify the contents of the bag.
5.
During cross-examination, PW4 stated that the appellant, was the one carrying the bag. He further noted that the suspects were walking away from the Rio Hotel. However, he could not directly link the third accused, Kipkoech Cheruiyot, to the recovered ivory. Despite some commotion during the arrest, no alarm was raised.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4423/eng@2025-04-08
Miscellaneous Succession Application 6 of 2014,Kinyua v Kuthua & 4 others (Miscellaneous Succession Application 6 of 2014) [2025] KEHC 4572 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Kerugoya,High Court,RM Mwongo,8 April 2025,2025.0,Kirinyaga,,Domitiria Wangui Kinyua v Margaret Wambere Kuthua & Teresia Wanjiru & James Njiru Kuthua & Catherine Muthoni & Esther Micere,[2025] KEHC 4572 (KLR),,"1.
Before this court is a notice of motion dated 05th February 2020, pursuant to Rule 63 Probate and Administration Rules and order 45 Rule 1 of the Civil Procedure Rules. Through it the 3rd respondent/applicant seeks the following orders:
a.
That this honorable court be pleased to review/ set aside the ruling and consequential orders emanating from the ruling dated 20th December 2019;
b.
That the cost of this application be borne by the 1st, 2nd, 4th and 5th respondents.
2.
The 3rd respondent/applicant bases his prayers on the grounds that:
a)
The 3rd respondent/applicant neither acted fraudulently nor failed to disclose material facts that would warrant him to be punished by revoking the grant and having the estate redistributed;
b)
No plausible explanation has been tendered by the applicant on why she had not participated in the proceedings especially considering that she had all along been resident in the country and even worse lived in the same village;
c)
The affidavits sworn by Margaret Wambere Kuthua, Teresiah Wanjiru, Catherine Muthoni and Esther Michere dated 28th January 2015 point at deliberate attempt to hood wink the honourable court that all except the first born knew of the proceedings of Succession Cause Number 237 of 1998;
d)
That the 3rd respondent/applicant having inherited four acres of Title Number Mutira/Kanyei/283 has since conferred beneficial interests to his children. The applicant is therefore estopped from claiming any interest belatedly to the detriment of the 3rd respondent/applicant and his children; and
e)
That in any case the 1st respondent has a life interest in the two acres given to her which she can pass to the applicant as it is abundantly clear that save for her claim of one acre, no other beneficiary is laying a claim.
Background
3.
The 3rd respondent/applicant is aggrieved by the ruling of this court delivered on 20th December 2019 in which the grant issued to the 1st respondent was revoked. The court found that the proceedings to obtain the grant were defective and were obtained through concealment from the court of something material to the case. The concealed matter was found to be that the applicant/respondent was not involved in the proceedings.
4.
The 3rd respondent/applicant’s case now is that following the 1st respondent’s petition for the grant, there was no objection filed even though the matter was gazetted. That the applicant/respondent, who is the 1st respondent’s first-born daughter was not involved in the proceedings, something that the 1st respondent and all her other children stated in a strange turn of events during revocation proceedings which were conducted 26 years after death of the deceased.","12.
The core issue for determination is whether the court should review/ set aside the ruling and consequential orders emanating from the ruling delivered on 20th December 2019.
13.
Rules 49 and 63(1) of the Probate & Administration Rules make way for the application of the Civil Procedure Rules. Here, Order 45 Rule (1) of the Civil Procedure Rules was invoked, pursuant to which a court may review its orders on the following grounds:
a.
Where there is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed: or
b.
Where there has been some mistake or error apparent on the face of the record; or
c.
Where there is any other sufficient reason.
14.
In In re Estate of Saverio Ruri Njuiri (Deceased) [2021] KEHC 3851 (KLR) the court stated as follows:
“
25.
Review of decisions of a probate court is governed by Rule 63 of the Probate and Administration Rules, which imports Order 45 of the Civil Procedure Rules in probate matters. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review set out in the said Order 45 of the Civil Procedure Rules (See John Mundia Njoroge & 9 Others vs. Cecilia Muthoni Njoroge & Another [2016] eKLR).
26.
The requirements under Order 45 are to the effects that, to be successful, the applicant must demonstrate to the court that; -
i.
There has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed; or
ii.
That there has been some mistake or error apparent on the face of the record; or
iii.
That there is any other sufficient reason.”
15.
The 3rd respondent/applicant stated that there is an error apparent on the face of the record, in that the court should have noted that the applicant/respondent knew about the proceedings culminating into the impugned ruling. He stated that the grant was revoked in error and that this order should be set aside. In the case of In re Estate of Simoto Omwenje Isaka (Deceased) [2020] KEHC 1641 (KLR) the learned judge held that an error apparent on the face of the record is determined judicially on the facts of each case. The error must be self-evident. It was held thus:
“
From the above, it is clear that the error the subject of the application ought to be so glaring that there can possibly be no debate about it. An error which has to be established by a long-drawn out process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.”[Emphasis added]
16.
The position of 3rd respondent/applicant was rebutted by the respondent whose arguments were that the court has now become functus officio, thus lacking capacity to entertain an application for review in the manner presented herein. That the application intends to have this court sit on appeal in its own decision. The revoked grant was issued through Kerugoya SRM Succession Cause No.237 of 1998. The revocation proceedings were conducted in the High Court being instituted vide summons for revocation of grant dated 06th March 2014. The court took viva voce evidence and considered it. It found that the grounds under section 76 of the Law of Succession Act had been met.
17.
The grounds for the application herein demand that the court should re-open that evidence adduced at the revocation hearing and reevaluate the same. Needless to say, to do such a thing makes this an appellate court where re-examination of evidence is demanded. If the court should review its ruling, it cannot take an in-depth look at the arguments made and the evidence adduced; rather, there should be an error apparent on the face of the record. A glaring error that the court can see at a glance.
18.
The doctrine of functus officio allows for litigation to come to an end. It was discussed in the case of John Gilbert Ouma v Kenya Ferry Services Limited [2021] KEHC 7107 (KLR) where the court stated:
“
The doctrine of functus officio was considered by the Court of Appeal in Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited) [2014] KECA 600 (KLR), where the court held that -
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions.””
19.
Further, in the case of Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR), the Supreme Court cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 which reads: -
“
The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4572/eng@2025-04-08
Civil Suit E046 of 2022,Kiplagat v Kiplagat (Civil Suit E046 of 2022) [2025] KEHC 4555 (KLR) (Family) (8 April 2025) (Directions),Civil Suit E046 of 2022,,,,,,,,,[2025] KEHC 4555 (KLR),,,,,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4555/eng@2025-04-08
Commercial Appeal E177 of 2024,Kivunira v Capital Markets Authority (Commercial Appeal E177 of 2024) [2025] KEHC 4441 (KLR) (Commercial and Tax) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Commercial Courts),High Court,BM Musyoki,8 April 2025,2025.0,Nairobi,Commercial and Tax,Wycliffe Lidonga Kivunira v Capital Markets Authority,[2025] KEHC 4441 (KLR),,"
1.
The appellant was an employee of the National Bank of Kenya (hereinafter referred to as ‘the bank’) where from 1-04-2015, he was appointed as the acting Chief Finance Officer a position he held until 13th April 2016 when he was terminated amid allegations of breach of financial and fiduciary duties. The respondent, is a statutory body established under Section 5 of the Capital Markets Act whose functions include to promote, regulate and facilitate the development of an orderly, fair and efficient capital market in Kenya.
2.
After the appellant was terminated, the respondent initiated its own investigations and called upon the appellant to provide information on financial management at the bank. Following the investigations, the respondent issued a notice to show cause to the appellant to answer changes which it framed as follows;
i.
Willfully preparing and publishing false and misleading financial statement for the bank by reporting a gain in disposal of assets of Kshs 847,920,000.00 for the quarter ended 30th June to 30th September 2015.
ii.
Irregularly restructuring and rebooking loans without informing and seeking approval of the board of directors, in order to avoid bank obligations to make provisions for non-performing loans amounting to Kshs 2,595,303,848.00 and recognizing interest subsequently written off amounting to Kshs 680 million contrary to provisions of the guidelines on corporate governance practices by public listed companies.
iii.
Potential involvement in the embezzlement of funds through commissioning a deposit mobilization exercise in 2014 and 2015.
3.
The appellant responded to the notice to show cause but asked to be supplied with several documents and information then held by the bank to enable him prepare his defence. In response to the request, the respondent wrote to the bank asking it to supply the documents requested by the appellant. After several back and forth correspondences of the request, the respondent informed the appellant that the bank had declined the request for some of the documents citing protection of confidentiality under the Banking Act and Prudential Guidelines by the Central Bank of Kenya. The respondent nevertheless completed its investigations by hearing the appellant without the appellant having been supplied with the documents and on 3-04-2018 reached the following decisions;
a.
The appellant acted in contravention of Regulation B.06 of the 5th Schedule of the Capital Markets (Securities) (Public Offers, Listing and Disclosure) Regulations 2002 by failing to prepare interim accounts for the period 30th June 2015 in accordance with International Financial Reporting Standards (IFRS);
b.
The appellant acted in contravention of Article 2.1.3 of the Guidelines on Corporate Governance Practices by Public Listed Companies in Kenya, 2002 by failing to supply the board with relevant, accurate and timely information to enable the board discharge its duties;
c.
There was no evidence to link the appellants to the alleged embezzlement scheme; and
d.
The appellant was slapped with a penalty of Kshs 1,000,000.00",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4441/eng@2025-04-08
Miscellaneous Criminal Application E468 of 2024,Kotani v Director of Public Prosecutions (Miscellaneous Criminal Application E468 of 2024) [2025] KEHC 4505 (KLR) (Crim) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,K Kimondo,8 April 2025,2025.0,Nairobi,Criminal,Erick Kotani v Director of Public Prosecutions,[2025] KEHC 4505 (KLR)  ,,"1.
On 24th November 2023, Erick Kotani (hereafter the applicant), was convicted by the lower court for the offence of stealing contrary to section 268 (1) as read with 275 of the Penal Code. He was fined Kshs 400,000 in default to serve three years in prison. Those proceedings were in the Chief Magistrates Court at Nairobi in Criminal Case No. 33 of 2016: Republic v Erick Kotani & Nixon Ogongo Otieno.
2.
He paid the fine and obtained his freedom. He now craves leave to lodge an appeal out of time. The notice of motion is dated 13th December 2024 and predicated upon his deposition of even date.
3.
The grounds are three-pronged: Firstly, that his counsel was absent during the delivery of the judgment and sentence which “left him exposed, vulnerable and to his own devises”. Secondly, that he is a pastor and the conviction is “prejudicial to his reputation and the same is now being used to prosecute a civil case filed against the applicant’s company”. Thirdly, that the conviction was based on weak circumstantial evidence and failed to take into account exculpatory facts. He contends that in light of the annexed “draft memorandum of appeal”, the appeal has high chances of success.
4.
The motion is ardently opposed by the respondent through grounds of opposition dated 19th March 2024. In a nut shell, the respondent contends that there has been lengthy and ill-explained delay; and, that the motion is an afterthought or abuse of court process.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4505/eng@2025-04-08
Civil Case E002 of 2022,Langat v Langat (Civil Case E002 of 2022) [2025] KEHC 4546 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Kapsabet,High Court,JR Karanja,8 April 2025,2025.0,Nandi,Civil,SKL v WKL,[2025] KEHC 4546 (KLR)   ,,"1.
The application vide the Notice of Motion dated 23rd July 2024 basically seeks an order of stay of execution of the judgment delivered herein on 10th July 2024 pending hearing and determination of an intended appeal by the Applicant/Defendant, WKL, who had been sued by the Respondent/ Plaintiff, SKL for division of their matrimonial property upon dissolution of their marriage.
2.
The application was essentially brought under Order 42 Rule 6 of the Civil Procedure Rules and is based on the grounds stipulated in the Notice of Motion and which are fortified by the Applicants averments in the supporting affidavit dated 23rd July 2024 and the supplementary affidavit dated 3rd December 2024, which are countered by the Respondent in opposition vide her replying affidavit dated 8th October 2024.
3.
The application was heard by way of written submissions which were filed herein by both parties through their respective legal counsels.
Clearly, from the pleadings and submissions the issue arising for determination is whether the application is competent and proper before this court and if so, whether the Applicant has satisfied the necessary requirements or conditions for an order of stay of execution pending appeal, hence deserving the exercise of this court’s discretion in his favour.
4.
As regards the propriety and competence of the application it is presupposed that the application would be founded on the existence of an appeal by way of filing a memorandum of appeal. The Applicant being aggrieved by the impugned judgment ought to demonstrate that he has already preferred and filed the appeal. A notice of appeal does not constitute the filing or institution of an appeal which ordinarily has to be within a period of thirty [30] days after delivery of a judgment and/or ruling.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4546/eng@2025-04-08
Criminal Appeal E106 of 2024,Machani & another v Republic (Criminal Appeal E106 & E107 of 2024 (Consolidated)) [2025] KEHC 4469 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Kibera,High Court,DR Kavedza,8 April 2025,2025.0,Nairobi,Criminal,Tonny Machani & John Musyoka Otieno v Republic,[2025] KEHC 4469 (KLR)  ,,"1.
The appellants were jointly charged and convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code. The particulars are that on 29th December 2022, the appellants jointly with others not before court, at Gatwekera Area in Kibra Sub-county within Nairobi County robbed Anthony Onyango of cash Kshs. 400,000, scratch cards valued at Kshs. 2,100, six phones, five POS bank machines, three POS chargers, and one Bluetooth radio property of Alloys Okello, and immediately before that robbery assaulted the said Anthony Okello causing him injuries. They were each sentenced to death.
2.
Being aggrieved, the appellants filed their respective appeals challenging their conviction and sentence which were consolidated by this court. In their petition of appeal, they challenged the totality of the prosecution’s evidence against which he was convicted. They urged the court to quash his conviction and set aside the sentence imposed.
3.
As this is a first appeal, I am required to re-evaluate the evidence tendered in the trial Court and come to an independent conclusion as to whether or not to uphold the convictions and sentences. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic [1973] EA 32).
4.
The prosecution’s case was as follows: PW1, Antony Onyango, testified that on 29th December 2022 at around 10:00 p.m., while closing his shop, he was attacked by a gang of armed robbers who covered his face with his jacket and stabbed his hand multiple times. The attackers stole items including five bank agent machines (for KCB, Equity, and Cooperative Bank), six Mpesa phones, a Tecno Camon 8 smartphone, PW2’s driving license and Huduma card, and Kshs. 400,000 in cash, all stored in three bags. He was later taken to Mbagathi Hospital and reported the matter at Kibera Police Station. In court, he identified some recovered items but stated none of the appellant were among the attackers, although he saw them under security lights.",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4469/eng@2025-04-08
Miscellaneous Civil Application E002 of 2025,Malombo v Kibumba (Miscellaneous Civil Application E002 of 2025) [2025] KEHC 4557 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Voi,High Court,AN Ongeri,8 April 2025,2025.0,Taita Taveta,Civil,Mwahe Malombo v Atanus Kilenge Kibumba,[2025] KEHC 4557 (KLR) ,,"1.
The application coming up for consideration in this Ruling is dated 28th January 2025 brought under Section 1A, 1B and 3A and 18(1)(b) of the Civil Procedure Act Cap 21 Laws of Kenya and Order 51 of the Civil Procedure Rules, 2010 Articles 159 of the Constitution of Kenya and all enabling provisions of the Law seeking the following orders:-
i.
That this application be certified urgent and service thereof be dispensed within the first instance.
ii.
That this honourable court be pleased to stay the proceedings of Voi SCCC No. E009 of 2024 (Mwahe Malombo =versus= Atanus Kilenge) pending the hearing and determination of this application inter partes.
iii.
That this Honourable Court be pleased to transfer Voi SCCC No. E009 of 2024 (Mwahe Malombo v Atanus Kilenge) from the Small Claims Court at Voi to Voi Magistrate’s Court.
iv.
That the Applicant be granted leave to restate the claim upon transfer of the suit before the Voi Magistrate’s Court.
v.
That the costs of this application be provided for.
2.
The application is based on the following grounds:-
i.
That on 23rd January 2025 the Applicant was granted leave by the Small Claims Court to file a medical report.
ii.
That the medical report provided that the Applicant will require treatment amounting to Kenya Shillings One Million (Kshs. 1,000,000/=)
iii.
That the Applicant will be seeking special damages above Kenya Shillings One Million which is above the Small Claims Court pecuniary jurisdiction.
iv.
That the matter is slated for hearing before Hon. Stephen Musili on 30th January 2025.
v.
That this Honourable Court has powers to have the matter transferred to a court equipped with the proper jurisdiction to hear and determine the matter.
vi.
That no prejudice will be occasioned to the Respondent by the said transfer.
vii.
That it is in the interest of justice that this matter be transferred to Magistrates Court at Voi for it to be heard and determined.
3.
The application is supported by the affidavit of Walegwa Mwasawain which he deponed as follows:-
i.
That I am and Advocate of the High Court of Kenya, practicing as such in the firm of Rajab & Mbogo Advocates and I have conduct of this matter on behalf of the Applicant;
ii.
That the Applicant herein has filed the suit SCCC E009 OF 2024 (Mware MalombovAtanus Kilengebefore the Voi Small Claims Court where she is seeking inter alia special damages of Kenya Shillings Two Hundred and Sixty Thousand Nine Hundred and Thirteen (Kshs. 260,913/)
iii.
That on 23rd January, 2025 the matter came up before the Small Claims Court and the Applicant herein was granted leave to file a medical report as the Honourable Court's records will show and support.
iv.
That upon receipt and perusal of the medical report from Dr. HANIF the conclusion from the doctor was that the Applicant would require a medical procedure costing approximately Kshs. 1,000,000/-
v.
That as a result, the Applicant's claim for special damages exceeds Kenya Shillings One Million, which exceeds the pecuniary jurisdiction of the small claims court.
vi.
That the Applicant wishes to transfer her claim from the Small Claims Court to the Magistrates Court which· has pecuniary jurisdiction to hear and determine it;
vii.
Thatthe matter is slated for hearing before Hon. Stephen Musili on 30'h January, 2025 as the Honourable Court's records will show and support;
viii.
That owing to the requirement that all matters before the Small Claims must be determined within 60 days of filing, the Applicant is apprehensive that the trial Court will not be in a position to grant further adjournment of the matter.
ix.
That if the matter was to proceed for the scheduled hearing on 30c& January, the Applicant's application will be rendered nugatory as any orders issued after the hearing of the Small Claim suit will be overtaken by event and unenforceable.
x.
That this H.o. nourable Court has powers to have the matter transferred to a court equipped with the proper jurisdiction to hear and determine the matter;
xi.
That once the matter is transferred there is a need for the Applicant to restate the claim as the pleadings in. the Small Claims Court are different than those of the Magistrates Courts;
xii.
That no prejudice will be occasioned to the Respondent by the said transfer.
xiii.
That I pray that this Honourable Court do make an order to transfer the proceedings in Voi SCCC E009 OF 2024 (Mwahe Malombo v Atanus Kilengefrom the Small Claims Court at Voi to Voi Magistrates law Courts.
xiv.
That it is in the interest of justice that this matter be transferred to Vol Magistrates Law Courts, for it to be heard and determined.
xv.
That the Applicant undertakes to expeditiously prosecute the claim in a timely manner, so as not to prejudice the Respondent;
xvi.
That unless the orders sought arc granted, the Applicant stands to suffer irreparable damage;
xvii.
That there has been no delay in bringing this application;
xviii.
That no prejudice will be suffered by the Respondent if this application is allowed;
4.
The Respondent filed grounds of opposition as follows:-
i.
That the Applicant expressly admits that the suit was filed in a court without jurisdiction hence in law there exists no suit worthy transfer to another court with jurisdiction.
ii.
That a null and void suit is dead and does not in law exist and as such it cannot be breathed life and/or cured by being taken from one court to another as this Honourable Court is being asked to do.
iii.
That the only available option to the Applicant is to withdraw the suit altogether and file the suit afresh in the competent court of law.
iv.
That the only other available option is for the court to have the suit dismissed for want of the jurisdiction.
v.
That the application is bad in law and fatally defective and is a clear case of the abuse of the process of the court.
vi.
That the application should be dismissed with costs.",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4557/eng@2025-04-08
Petition E006 of 2025,"Mango v Omondi, Principal Butere Girls High School; Executive Secretary, The Kenya National Drama and Film Festival Committee & 2 others (Interested Parties) (Petition E006 of 2025) [2025] KEHC 4565 (KLR) (8 April 2025) (Ruling)",Ruling,High Court at Kisii,High Court,WA Okwany,8 April 2025,2025.0,Kisii,Constitutional and Human Rights,"Anifa Mango v Mrs Jennipher Omondi, Principal Butere Girls High School; Executive Secretary, the Kenya National Drama and Film Festival Committee; The Principal Secretary, Ministry of Education, Department of Basic Education & The Honourable Attorney General",[2025] KEHC 4565 (KLR) ,,"1.
The Petitioner herein filed the Petition dated 2nd April 2025 seeking the following prayers: -
1.
A declaration that the decision to bar the Drama Students at Butere Girls High School from performing at the Kenya National Drama Festival Nationals is unconstitutional, unlawful, and null and void.
2.
A declaration that the Respondent be compelled to reinstate the Drama Students at Butere Girls High School’s participation in the Kenya National Drama Festival Nationals.
3.
A declaration that the Respondent provide the cast and the teachers in charge of the drama club with adequate security during the entire national festival.
4.
A declaration that the Respondent facilitate and ensure the students of Butere Girls High School perform the Play in its original form at the National level festival as scheduled.
5.
An Order awarding costs of the Petition to the Petitioner.
6.
Any other or further orders, writs, and directions this Court considers appropriate and just to grant for the purpose of the enforcement of the Drama Students at Butere Girls High School’s fundamental rights and freedoms; the enforcement and defence of the Constitution pursuant to Article 23 (3) of the Constitution.
2.
Concurrently with the Petition, the Petitioner filed an Application (Notice of Motion) dated 2nd April 2025 that is the subject of this ruling. The Applicant seeks the following orders in the said Application: -
1.
Spent
2.
Spent
3.
That the Honourable Court be pleased to issue an order that incase the Principal has received any formal communication from the interested parties banning and/or barring the Butere Girls from participating, the same be stayed.
4.
That the Honourable Court be pleased to issue an order compelling the Respondent to facilitate and ensure the 50 students of Butere Girls High School perform the Play in its original form at the National level festival as scheduled.
5.
That the Honourable Court be pleased to issue any other relief it may deem just and expedient to grant in the circumstances.
6.
That the costs of this Application be borne by the Respondents.
3.
The Application is supported by the Applicants Affidavit and is premised on the grounds that: -
a.
That this Honourable Court has the jurisdiction to hear, determine, and issue the Orders sought in this Application.
b.
That the Petitioner/Applicant is an alumnus of Butere Girls High School, a former drama member in the said school and currently a lawyer by training practicing law within the Republic of Kenya.
c.
That the Respondent and Interested Parties are public officers and entities responsible for the administration, regulation, and oversight of education and co-curricular activities in Kenya, including the Kenya National Drama and Film Festival.
d.
That on or about 22nd February 2025, 50 Drama Students at Butere Girls High School presented a play that was adjudicated at Sub County levels by adjudicators of high standing and professional repute who collectively found the play to be fit to proceed to the County levels Drama Festival.
e.
That on or about 11th March 2025 the 50 Drama Students at Butere Girls High School presented same play which was adjudicated at County levels by adjudicators of high standing and professional repute who collectively found the play to be fit to proceed to the Regional levels Drama Festival.
f.
That on or about 22nd March 2025 the same students presented the play which was then adjudicated at Regional levels by adjudicators of high standing and professional repute who collectively found the play to be fit to proceed to the National levels Drama Festival.
g.
That, the Respondent, made the arbitrary decision to bar the 50 Drama Students at Butere Girls High School from performing their play at the National Drama Festival to be held between 7th April 2025 and 15th April 2025, without justifiable cause.
h.
Thatthe Principal, Respondent herein, acting on verbal instructions from an undisclosed source, has refused to allow students to perform at the national level festival, claiming that the play has political undertones, which it does not.
i.
That, the 50 Drama Students at Butere Girls High School are barred from performing their play at the National Drama Festival to be held between 7th April 2025 and 15th April 2025, despite them having paid school fees which in part caters for extracurricular activities.
j.
Thatthe drama committee organized a winners' Gala on the 29th and 30th of March 2025, to the exclusion of Butere Girls High School's play from the program.
k.
Thatthe decision was made in an opaque and unfair manner, depriving the 50 Drama Students at Butere Girls High School of their legitimate expectation to participate in the festival.
l.
Thatthe exclusion of the 50 Drama Students at Butere Girls High School from the festival has caused them emotional distress, humiliation, and a loss of opportunity to showcase their talent on a national stage.
m.
Thatthe balance of convenience tilts in the Petitioner/Applicant’s favour as the students of Butere Girls High School stand to be prejudiced should they not have an opportunity to be heard and participate in the drama festivals at the national level.
n.
Thatthe 50 Drama Students at Butere Girls High School will suffer irreparable damages if the Respondent is not compelled to allow them to perform their play in its original form.
o.
Thatunless this Honourable Court intervenes and hears the matter urgently, the Respondent will proceed to illegally exclude the students of Butere Girls High School from performing at the Drama Festival, which opportunity they earned fair and square through their dedication and hard work.
p.
Thatthe Respondent stands to suffer no harm if the interim orders sought are granted.
q.
Thatit is in the interest of justice to grant orders sought and admit the Application for priority hearing in view of the nature of the matter.
r.
Thatunless the Honourable Court intervenes, the rights of the 50 Drama Students at Butere Girls High School and the public at large protected and recognized by the Constitution of Kenya 2010 are likely to be denied, violated, infringed or threatened.","31.
I have carefully considered pleadings filed herein and the arguments made, by both sides. I find that the main issue for determination is whether the Applicant has made out a case for the granting of the orders sought in the Application. I note that the main prayer sought is in the nature of a mandatory injunction. Besides seeking to stay any alleged formal communication from the Interested Parties banning and/or barring the School from participating in the Festival, the Applicant also seeks orders to compel the Respondent to facilitate and ensure the that the 50 students of the School perform the Play, Echoes of War, in its original form at the Festival as scheduled.
32.
In determining this Application, this court will be required to determine whether the decision to exclude Butere Girls from participating in the National Festivals was arbitrary and unlawful or if the same was in accordance with the governing regulations and discretionary powers vested in the relevant bodies.
33.
At the core of this Application is the issue of whether Butere Girls’ qualified to participate in the 2025 National schools Drama Festivals. While the Applicant argued that the school qualified for the said Festival, the Respondent and the Interested Parties were of the contrary opinion. Parties were also not in agreement on the applicable rules governing the criteria for participation in the Festivals as while the Applicant maintained that the Ministry of Education Kenya National Drama and Film Festival Rules and Regulations 2025 are applicable, the Respondent and the Interested Parties relied on the 2024 Rules.
34.
The Respondent argued that the selection of schools to proceed to the national level was conducted transparently and in accordance with the Kenya National Drama and Film Festival Regulations 2024, specifically Rule 21:3 which provides that: -
“
Where all top plays are performed in one language, due consideration and affirmative action is to be given to plays in Kiswahili or indigenous languages.""
35.
The Respondent and Interested Parties contended that, contrary to the Applicant’s claim that the 2024 Rules were revoked by the 2025 Rules, there was no formal or express revocation of the said Regulations. According to the Respondent and the Interested Parties, the 2025 Rules operate as a supplement or update to the existing framework, rather than an abrogation of prior rules. They added that in the absence of express repeal, the previous provisions remain operative and binding.
36.
Rule 21.3 of the Ministry of Education Kenya National Drama and Film Festival Rules and Regulations 2024 stipulates that: -
“
Of the Three winning plays, in the Primary Junior and Secondary School categories, at least one should be in Kiswahili or an indigenous Language. In case none is in Kiswahili/indigenous, the best play in Kiswahili/ indigenous Language with a score of not less than 75% shall be performed at the National Level on the recommendation of the Adjudicators.
37.
Rule 21.3 of the Ministry of Education Kenya National Drama and Film Festival Rules and Regulations 2025, on the other hand, provides as follows:
“
Of the Three winning plays, in the Primary Junior and Secondary School categories, at least One should be in Kiswahili/ indigenous Language. In case none is in Kiswahili/ indigenous Language, the best play in Kiswahili/ indigenous Language with a score of not less than 78% shall be performed at the National Level on the recommendation of the Adjudicators. The play should also have been ranked among the top Four overall.” [Emphasis added]
38.
A simple reading of the two versions of Rule 21.3 reveals several variations in the Rules as while the 2025 Rule sets the cut off qualification score for Kiswahili/indigenous language play at not less than 78%, the 2024 Rule sets the score at 75%. In addition to the scores, the 2025 Rule requires the Kiswahili/indigenous play to have been ranked top four overall while in the 2024 Rule, the play only needs to be the best in the Kiswahili/indigenous language category.
39.
Considering the marked variations/difference in the above Rules I find that the Respondent’s and Interested Parties’ claim that the 2025 Rules operate as a supplement or update to the existing 2024 Regulations misleading and untenable. It is clear that the two Regulations, which appear to be a replica of each other save for the noted variations, were developed to govern the Drama Festivals in each given year in which case, the 2024 Rules cannot be applied to the 2025 Festival. This means that according to the 2025 Rules, the selection of a Kiswahili/Indigenous Play must meet the following threshold: -
a.
Must be in Kiswahili or Indigenous Language
b.
Must attain a score of 78% and above
c.
Must be ranked at the Top Four Overall Plays position
d.
Must be recommended by the Adjudicators
40.
My understanding of Rule 21.3 of the 2025 Regulations is that where the 3 winning plays are in English language, as was the case in the instant Application, then best play in Kiswahili/indigenous Language with a score of not less than 78% shall be performed at the National Level on the recommendation of the Adjudicators as long as the play is ranked among the top Four overall.
41.
This court further holds the view that if indeed the 2025 Rules were to supplement the 2024 Rules, then the said Rules would have expressly stated so and would not have been drafted to conflict with the previous Rules. Instead the Rules would be bridging any gaps in order to supplement the existing 2024 Rules. This was not the case in the present Application. It is my finding that parties cannot refer to previous rules where a new set of rules have been promulgated.
42.
In the instant case, looking at the list of the top ten (10) performing schools that was presented by the Respondent and Interested Parties, it is clear that St. Mary’s Kibabii School, that was purportedly nominated by the Interested Parties’ deponent did not qualify in the top four overall position as envisaged by Rule 21.3 of the 2025 Regulations. It is instructive to note that the said school was in position 9 overall thereby failing to meet the qualification criteria set in the Regulations. No material was placed before this court to show that the said school got the adjudicators’ approval to perform at the National level.
43.
Even assuming, for argument’s sake that the 2024 Regulations were still applicable in 2025, I find that nowhere in the said Rule 21.3 is it stated that the qualified Kiswahili/indegenous play will bump off/take the place of or replace the school that is number 3 overall position in ranking. My understanding of the said Rule is that while the 3 winning English plays automatically qualify for the National Festival, the best Kiswahili/indigenous language play would only be allowed to perform alongside the three (3) winning plays if it meets the threshold of 78%, attains the fourth overall position and gets the adjudicators’ approval.
44.
I therefore find that the explanation given by the Interested Parties’ deponent, for excluding Butere Girls’ from participating in the National Festival and substituting it with a school that ranked in the 9th overall position is neither convincing nor supported by the Rules governing the said Festival.
45.
It is my further finding that the action taken by the Western Regional Director of Education to exclude Butere Girls’ from the National Festival lends credence to the Applicant’s claim that there may have been more than meets the eye in the school’s disqualification. I therefore find that the Regional Director of Education (Western) did not exercise his discretion fairly, properly and lawfully.
46.
Turning to the prayer for mandatory injunction to compel the Respondent to ensure that Butere Girls’ participate at the National Festival, I am alive to the fact that it is now trite that the court can only grant a mandatory injunction under the provisions of section 3A of the Civil Procedure Act and not under Order 40 of the Civil Procedure Rules. (See Belle Maison Ltd. v Yaya Towers Ltd. Nairobi HCCC No. 2225 of 1992).
47.
In the case of Kenya Breweries Limited & Another v Washingtone O. Okeyo Civil Appeal No. 332 of 2000 [2002] 1 EA 109 the Court of Appeal stated as follows:
“
A mandatory injunction can be granted on an interlocutory application as well as at the hearing but in the absence of special circumstances, it will not normally be granted. However if the case is clear and one which the Court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff, a mandatory injunction will be granted on an interlocutory application…A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the Court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory injunction the Court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”
48.
Similarly, in Dickson Mwangi v Braeburn Limited T/A Braeside School Civil Appeal No. 12 of 2004 [2004] 2 EA 196 the Court of Appeal held that interlocutory mandatory injunctions should only be granted with reluctance and only in very special circumstances. In Gusii Mwalimu Investment Company Ltd. & 2 Others v Mwalimu Hotel Kisii Ltd. Civil Appeal No. 160 of 1995 [1995-1998] 2 EA 100 the same Court (Lakha, JA) held that:
“
Whereas the court does have jurisdiction to grant a mandatory injunction even on an interlocutory application, the granting of a mandatory injunction on interlocutory relief is a very exceptional form of relief to grant. A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff a mandatory injunction will be granted on an interlocutory application. On motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must inter alia feel a high degree of assurance that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction. Each case must depend on its own facts.”
49.
Courts have also made a distinction between prohibitory injunctions as was espoused in the locus classicus case of Giella v Cassman Brown (1973) E.A. at page 358 and mandatory injunctions. While the former seeks to stop a party form acting or taking certain steps towards realizing an action, the latter refers to authorizing a party to act or take positive steps towards realizing a particular action.
50.
In Kamau Mucuha v The Ripples Ltd. Civil Application No. Nai. 186 of 1992 [1990-1994] EA 388; [1993] KLR 35 the Court of Appeal expressed itself as hereunder:-
“
Whereas a prohibitory injunction requires abstention from acting, a mandatory injunction requires the taking of positive steps, and may require the dismantling or destruction of something already erected, or constructed. This will result in a consequent waste of time, money and materials if it is ultimately established that the defendant was entitled to retain the erection…Historically, the principles laid down with regard to temporary mandatory injunctions are that they will only be granted in exceptional and clearest cases. The grant of a mandatory injunction on interlocutory relief is a very exceptional form of relief to grant, but it can be granted. If a mandatory injunction is granted on motion, there will normally be no question of granting a further mandatory injunction at the trial; what is done is done and the plaintiff has, on motion, obtained once and for all the demolition or destruction that he seeks. Where an injunction is prohibitory, however, there will often still be a question at the trial whether the injunction should be dissolved or contained…A court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the Court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted and that is a higher standard than is required for prohibitory injunction.”
(See also Megarry J.’s decision in Shepard Homes v Sandham [1970] 3 WLR Pg. 356)
51.
Applying the principles governing the granting of orders of mandatory injunction, as stated in the above cited cases to the present case, I find that the Applicant’s case presents the special circumstances envisaged in the said authorities for the following reasons: Firstly, I have already found that Butere Girls’ was not only qualified to participate in the National Festival having emerged at position 3 overall, but was also unfairly and arbitrarily excluded from the contest. Secondly, the contest was set to begin yesterday 7th April 2025 which means that any further delay in allowing their participation, pending the determination of the Petition, will mean that by the time the main suit will be determined, the prayers in the Application and Petition would have been overtaken by events. In such an eventuality, the School will have been completely locked out from this year’s competition, thereby suffering irreparable loss that cannot be compensated by way of damages.
52.
This court cannot ignore the fact that the students at Butere Girls’, their teachers and the entire school have invested in their time, talents and resources in preparing for the prestigious National Festivals. I find that in the circumstances of this case, denying the said students the opportunity to showcase their talents would be tantamount to an infringement to their freedom of expression as provided under Article 33 of the Constitution.
53.
I find that the Applicant has established a prima facie case for the granting of conservatory orders. I find guidance in the decision in the case of The Centre for Human Rights and Democracy & Others v The Judges and Magistrates Vetting Board & Others Eldoret Petition No. 11 of 2012, where the court held as follows: -
“
In our view where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any Constitutional or legal right or any burden is imposed in the contravention of any Constitutional or legal provision or without the authority of the law or any such legal wrong or injury is threatened, the High Court has powers to grant appropriate reliefs so that the aggrieved party is not rendered, helpless or hapless in the eyes of the wrong visited or about to be visited upon him or her. This is meant to give an interim protection in order not to expose others to preventable perils or risks by inaction or omission.” [Emphasis added]
54.
For the reasons that I have stated in this ruling, I find that the Application dated 2nd April 2025 is merited and hereby allow it in the following terms: -
a.
Thatan order is hereby issued to stay any order to ban, exclude and/or bar the Butere Girls from participating in the 2025 Drama and Music Festivals at National Level.
b.
Thatan order is hereby issued compelling the Respondent to facilitate and ensure the 50 students of Butere Girls High School accompany their drama teachers and/or playwright to perform the Play, Echoes of War, in its original form, at the National Drama Festival in Nakuru as scheduled.
c.
The costs of this Application will be in the cause.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4565/eng@2025-04-08
Civil Appeal 42 of 2014,MAS v ALM (Civil Appeal 42 of 2014) [2025] KEHC 4595 (KLR) (Family) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Law Courts),High Court,HK Chemitei,8 April 2025,2025.0,Nairobi,Family,MAS v ALM,[2025] KEHC 4595 (KLR) ,,"
1.
Before this court are two matters for determination. The first is the main appeal herein and the second is the notice of motion by the Respondent dated 12th March 2024.
2.
The motion seeks orders among others that:-
(a)
The court varies the ruling dated 22nd July 2014
(b)
The court directs that a fifty - fifty (50%-50%) maintenance by both parents.
(c)
An order that Respondent pays an amount of Kshs. 275000 being arrears.",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4595/eng@2025-04-08
Commercial Suit E313 of 2024,Match Electricals Limited v China Railway No 10 Engineering Group Company Limited (Commercial Suit E313 of 2024) [2025] KEHC 4473 (KLR) (Commercial and Tax) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Commercial Courts),High Court,BM Musyoki,8 April 2025,2025.0,Nairobi,Commercial and Tax,Match Electricals Limited v China Railway NO 10 Engineering Group Company Limited,[2025] KEHC 4473 (KLR) ,,"1.
The plaintiff filed this suit against the defendant claiming a total of Kshs 37,543,578.12 being sum due from the defendant for works done by the plaintiff pursuant to a subcontract for supply, installation, testing and commissioning of street lights from junction of Garsen-Lamu Road to New Lamu Port. The plaintiff completed the works as per the contract and claimed to have undertaken extra works which was not covered by the contract at a cost of Kshs 6,325,169.12.
2.
The defendant entered appearance on 29-07-2024 but before filing defence, it filed notice emotion dated 29-07-2024 praying that this court be pleased to stay the proceedings and refer the dispute for arbitration as provided for in the contract between the parties. This is the application which is subject of this ruling.
3.
The application by two affidavits sworn by Victoriah Mukiiri. One is the supporting affidavit sworn on 25th July 2024 and the other is a supplementary affidavit sworn on 28-10-2024. In the affidavits, the defendant contends that under the contract, the parties envisioned that any dispute arising from the performance of the contract should be referred to arbitration and that the intention of the parties which was clear should be respected. According to the defendant, since the issue in dispute is nonpayment of the contract price which is part of performance of the contract, the matter should be referred to arbitration and failure to do so would amount to rewriting the contract for the parties. The defendant adds that the court lacks jurisdiction to entertain the matter by virtue of the arbitration agreement. It contends further that it has not admitted any debt as claimed by the plaintiff and this court should not interrogate the circumstances giving rise to the claim because doing so would be going into the merits of the suit which is not desirable at this stage.
4.
The plaintiff has opposed the application through a replying affidavit sworn by its director one Christopher Theuri Maina on 17th September 2024. He depones that the defendant admitted the debt through signed performance certificates and recorded minutes of a meeting held on 18th July 2023 and refusal to pay the debt is not a dispute contemplated under the contract. According to the plaintiff, upon completion of the contracted works, the original scope was measured and certified by the defendant at Kshs 63,975,995.20 inclusive of VAT through three performance certificates and the site handed over to the defendant on 15-05-2023 where both parties signed a final performance certificate. It is averred that at the time of handing over, the defendant had paid a sum of Kshs 27 million out of the certified Kshs 63,975,995.20. The plaintiff adds that the defendant later made a further payment bringing the amount paid to Kshs 32,757,586.00. This left a balance of Kshs 31,218,409.00. This together with value of extra work of Kshs 6,325,169.12 is what the plaintiff is claiming in this suit.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4473/eng@2025-04-08
Environment and Land Judicial Review Miscellaneous Application 7 of 2023,"Mohammed v Rent Restriction Tribunal, Nairobi & 2 others; Attorney General & another (Interested Parties) (Environment and Land Judicial Review Miscellaneous Application 7 of 2023) [2025] KEHC 4558 (KLR) (Judicial Review) (8 April 2025) (Ruling)",Ruling,High Court at Nairobi (Milimani Law Courts),High Court,RE Aburili,8 April 2025,2025.0,Nairobi,Judicial Review,"Steve Gatoto Mohammed v Rent Restriction Tribunal, Nairobi & 2 others; The Attorney General & Law Society of Kenya",[2025] KEHC 4558 (KLR)  ,,"1.
A brief history of this matter is as important as the decision itself. The matter was first initiated before the Constitutional and Human Rights Division vide Constitutional Petition No. 20 of 2023, before being transferred to this Division by L. N. Mugambi J on 6/7/2023.
2.
When the matter landed in this Court, on 7/9/2023, J. Ngaah J gave directions by way of a ruling dated the even date in the presence of the applicant herein Steve Gatoto Muhammed to the effect that the application was not certified urgent, that the application was not seeking judicial review orders or leave to apply for judicial review orders. He observed that the dispute arising from the Rent Restriction Act would best be handled in the Environment and Land Court. He nonetheless directed that the application be served upon the respondents for inter partes directions on 18/10/2023.
3.
On 13/9/2023, the applicant had filed another application which the learned Judge gave directions on to the effect that the applicant seemed to have misconstrued the directions given on 7/9/2023 for 18/9/2023 and found no reasons to depart from the Court’s directions given on 7/9/2023. He directed the matter to be mentioned on the 18/9/2023 as earlier directed.
4.
On 18/9/2023, only the applicant and the 2nd respondent’s counsel appeared and the 2nd respondent’s counsel, Mr. Ngaira informed the court that his client had been served via WhatsApp on 14/9/2023 with incomplete documents and sought leave to obtain the application and pleadings from the court and 21 days to respond to the applicant’s application.
5.
The court in its directions granted the 2nd respondent leave to obtain proceedings from the court file and to file a response within 14 days of that date and directed the application dated 5/9/2023 to be heard on 18/10/2023. On the latter date, the applicant was online and he sought time to serve the 1st respondent while Ms Onkundi who stated that he had just been instructed sought for more time to respond and the other party’s counsel Ms Wanjohi stated that she was not ready to proceed. The court fixed the matter for hearing on 6/12/2023. On the latter date, the applicant was not present and the court fixed the hearing for 6/3/2024 and the Deputy Registrar was directed to serve the rest of the parties who were not present. On the latter date, the presiding Judge was on leave.","19.
I have considered the applications by the applicant and his written and oral submissions. The issue for consideration is whether the application seeking the calling into this court the Rent Restriction case for purposes of quashing those proceedings and orders that had the applicant’s property taken and sold on account of rent arrears to his landlady and further, the order for calling into this court the criminal proceedings from Ngong Law Courts where he is charged with the offence of assaulting his alleged landlady who distrained for rent are merited prayers.
20.
I first appreciate the applicant for his industry and intelligence in matters the law and his right to access justice. I do not know what level of education he has but he impressed the court as an extremely intelligent and educated person. He may however not be that knowledgeable in matters jurisdiction of the court but he understands why he is before the court and he expressed himself very eloquently.
21.
The applicant laments that he was never given the opportunity to be heard by the rent restriction tribunal before the distress for rent orders were made against him. He blames the Milimani High Court Registry staff and the staff of the ELC at Milimani in ELC Petition 6 of 2023 for being extortionists in the name of assisting him yet they were sabotaging the course of justice due to alleged institutionalized corruption that debilitates the Kenyan Judiciary which led to him and his family being displaced and dispossessed of the place he called home, a three bedroomed mansionate which had been demolished and instead of the police containing the situation, they had instead arrested and charged him in Ngong court thereby subjecting him to torture and making him an internally displaced person. He accuses the Rent Restriction Tribunal of acting without jurisdiction in issuing orders that led to his eviction and loss of all his property thereby rendering him destitute.
22.
That much is what I can gather in summary, from the applicant’s written submissions.
Determination
23.
Having considered all the above, I note that the respondents are the Rent Restriction Tribunal, the applicants’ Landlady and the auctioneers who distrained for rent and carted away the property of the applicant in a rent dispute between the applicant tenant and his landlady the 2nd respondent, who obtained orders from the 1st Respondent Tribunal.
24.
My attention is also drawn to the order of 13th March 2023 issued by the chairman of the Rent Restriction Tribunal Hon. Hillary K. Korir granting leave to the alleged landlady Rosemary Waithera Boru to distress for rent from the applicant herein in RRT Case no. E197 of 2023, using a licensed auctioneer and also directing the OCS Ongata Rongai Police Station to provide security or assistance to the auctioneers.
25.
Later, the landlady in question filed an application seeking orders directing the applicant to remove from the landlady’s premises, some unserviceable motor vehicles not belonging to the applicant and which could not be distraint to recover rent.
26.
The applicant complained against the OCS Ongata Rongai Police Station to the Internal Affairs Unit Director, National Police Service following the distress for rent which he considered to be unlawful eviction from the premises. He copied the correspondence to Independent Policing Oversight Authority, (IPOA) and complained that he had also been verbally assaulted by the police during the eviction process.
27.
In the said complaint letter dated, 19/6/2023, the applicant also acknowledged that there was a suit pending before the Environment and Land Court on the same dispute and directions were due on 25th May, 2023, the same day that he was invaded by the purported landlady Rosemary Waithera and her Aunt who also assaulted the applicant and on 26/5/2023, she returned with police officers and forcibly evicted him from the premises and arrested him claiming that the previous day he had assaulted the landlady.
28.
It is the above scenario that led to the applicant being charged with assault at Ngong law Courts and his approaching the Court for remedies. The Investigating Diary in respect of the criminal charges is part of the documents filed in this court by the applicant. He also filed the charge sheet in Ngong Law Courts where he was released on cash bail of Kshs 20,000. The applicant also filed statements of witnesses in the criminal case before Ngong Law Courts in which the landlady claimed to be managing her father’s rental premises with power of Attorney and had served the applicant notice to vacate the premises for non-payment of rent from 2022 and when he failed to move out, she served him with suit papers from the Tribunal which issued distress for rent orders. That the applicant had filed a case in the High Court to stop his eviction, which case was dismissed on 25th May 2023.
29.
The question I pose is whether this court has jurisdiction to hear and determine the merits of any of the prayers sought before this court by the applicant.
30.
Jurisdiction is the power conferred on a court of law to hear and determine disputes and it is conferred by the Constitution and statutes. Parties cannot confer jurisdiction on a court and neither can a court of law arrogate itself jurisdiction that it is devoid of. In some instances, the Constitution expressly bars courts from entertaining certain disputes.
31.
Jurisdiction of the High Court is derived from Article 165 of the Constitution and from statutes. The same Article 165(5)(b) of the Constitution also limits the jurisdiction of the High Court in the following terms:
(5)
The High Court shall not have jurisdiction in respect of matters—
(a)
reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b)
falling within the jurisdiction of the courts contemplated in Article 162 (2).
32.
Article 162(2) of the Constitution which is referred to in Article 165(5) (b) above establishes the specialized courts namely, the (a) Employment and Labour Relations Court and the Environment and Land Court. The latter court is to hear and determine disputes relating to (b) the environment and the use and occupation of, and title to, land.
33.
This, the Constitution which is the supreme law of the land expressly ousts jurisdiction of the High Court in hearing and determining disputes stated therein. That being the case, this court cannot arrogate itself such jurisdiction.
34.
In that regard, concerning matters landlord and tenant and therefore rent restriction and distraint for rent, section 8 of the Rent Restriction Act is on appeals from the Rent Restriction Tribunal and provides that:
Appeals:
8
(1)
Except as provided by subsection (2), every decision, determination and order of the tribunal under the provisions of this Act shall be final and conclusive, and no appeal shall lie therefrom to any court.
(2)
An appeal shall lie to the Environment and Land Court from any such decision, determination or order in the following cases—
(a)
in the case of an order under subsection (5) of section 6(b)or
(b)
on any point of law; or
(c)
in the case of premises whereof the standard rent exceeds one thousand shillings a month, on any point of mixed fact and law.
35.
Section 8 (1) of the Rent Restriction Act provides that no appeal shall lie from any decision of the Rent Tribunal except as provided by sub-section (2) of the section. Section of 8 (2) of the Rent Restriction Act, herein guarantees a Right of Appeal to any party, who is aggrieved and/or dissatisfied with the ruling and/or decision of the tribunal.
36.
Additionally, Section 13(2) of the Environment and Land Court Act outlines the disputes which the Environment and Land Court has powers to hear and determine, and subsection 4 further confers the ELC with the appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.
37.
In the instant case, the appellant moved this court to challenge the decision of the Rent Restriction Tribunal after his Petition vide Mohammed v Rent Restriction Tribunal, Nairobi & 2 others (Environment & Land Petition 6 of 2023) [2023] KEELC 17673 (KLR) (25 May 2023) (Judgment) was struck out on 25/5/2023 for non-exhaustion of remedies available at the Rent Restriction Tribunal. In the said petition dated March 19, 2023, the applicant sought the following reliefs:
i.
That this honourable court finds that the 1st respondent as having no jurisdiction over the suit premises and declares the proceedings in Rent Restriction Tribunal No 197 of 2023 a nullity.
ii.
That as a consequence of relief (i) this honourable court issue orders vacating the 1st respondent’s orders of March 13, 2023 against the petitioner.
iii.
That this honourable court issues an injunction against the 1st, 2nd and 3rd respondents barring them, their agents, servants and representatives from taking any action meant, connected or relating to the levying of rent on the premises plot Ngong/Ngong/ 6646 without the express authority of Mr Nelson Bolly Boru.
38.
Contemporaneous with the filing of the petition, the petitioner filed an application dated March 20, 2023 seeking orders staying and or vacating the 1st respondent’s orders of March 13, 2023.
39.
I have accessed the full decision from the Environment and Land Court through the Kenya Law Case Search engine and read the decision in full. E.K WABWOTO J who heard and determined the petition filed by the present applicant had this to say when striking out the petition and notice of motion for want of jurisdiction to hear and determine the petition and the notice of motion:
a.
The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.
b.
In the instant case, the petitioner seeks reliefs which can be adequately addressed by the Rent Restriction Tribunal. The tribunal has powers to hear and determine the dispute at hand. On the basis of the foregoing, this court finds that the court’s jurisdiction has been prematurely invoked. The petitioner ought to pursue his claim fully through the tribunal and in compliance with the law.
c.
Having so found, a consideration of the rest of the issues in this matter will not aid the petitioner in any way. The court also declines to award costs and opts to end this matter here.
d.
In the end, the petition dated March 19, 2023 and notice of motion dated March 20, 2023 are hereby determined as follows: -
a.
The petition dated March 19, 2023 and the notice of motion dated March 20, 2023 are hereby struck out
b.
Each party to bear own costs.
c.
Orders accordingly.
40.
The Environment and LAND Court declined jurisdiction on account of exhaustion of remedies doctrine stating that the Rent Restriction Tribunal had powers to set aside its orders or to stay the same and to hear the applicant’s complaint. Further, the law is clear that decisions of the Rent Restriction Tribunal are appealable to the Environment and Land Court.",Struck Out,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4558/eng@2025-04-08
Commercial Suit E185 of 2024,Muhia & 9 others v East African Breweries Limited (Commercial Suit E185 of 2024) [2025] KEHC 4491 (KLR) (Commercial and Tax) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Commercial Courts),High Court,BM Musyoki,8 April 2025,2025.0,Nairobi,Commercial and Tax,Alex Mwania Muhia & 9 others v East African Breweries Limited,[2025] KEHC 4491 (KLR),,"1.
By a notice of motion dated 23rd July 2024, the defendant has asked this court to strike out the plaint with costs for reason that it does not disclose any reasonable cause of action. As expected under dictate of Order 2 Rule 15(1)(a) of the Civil Procedure Rules, the application was not accompanied by a supporting affidavit. The plaintiffs have responded to the application through an affidavit of the 9th plaintiff sworn on 7th October 2024. The defendant filed submissions dated 17th February 2025 while the plaintiff chose to rely on their replying affidavit without filing any submissions.
2.
For the court to strike out a plaint for disclosing no reasonable cause of action, the defendant must convince the it that the same is so hopeless that it cannot stand even with evidence being adduced and it cannot be cured by way of amendment. It must be a pleading that does not identify any violation of any rights of the plaintiff. The pleaded facts must be off the mark that they do not relate to a known identifiable claim against the defendant. In D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another (1980) KECA 3 (KLR) the Court of Appeal held that;
‘No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.’
3.
In Yaya Towers Limited v Trade Bank Limited (In Liquidation) (2000) eKLR, the Court of Appeal explained the parameters of the court’s exercise of power to strike out a plaint for disclosing no reasonable cause of action thus;
‘On an application to strike out a plaint under order VI rule 13(1) (a) of the Civil Procedure Rules (the Rules) on the ground that it discloses no reasonable cause of action (which the present case is not) the truth of the allegations contained in the plaint is assumed and evidence to the contrary is inadmissible (see order VI rule 13(2) of the Rules). This is because the Court is invited to strike out the claim in limine on the ground that it is bound to fail even if all such allegations are proved. In such a case the court’s function is limited to a scrutiny of the plaint. It tests the particulars which have been given of each averment to see whether they support it, and it examines the averments to see whether they are sufficient to establish the cause of action. It is not the Court’s function to examine the evidence to see whether the plaintiff can prove his case, or to assess its prospects of success.’
4.
The plaintiffs claim that the defendant used their images to promote its products and activities without their consent. They aver that their rights under Articles 11(2)(c), 22(1), 23(1), 23(3), 28, 31, 40(5) and 33(3) of the Constitution were infringed by the defendant’s acts complained of. They have pleaded particulars of breach and violation of their rights. The prayers in the plaint seek declarations of that the plaintiff’s rights have been violated and compensation in form of damages. It is claimed that the defendant promoted its business at the expence of the plaintiffs which in my view is actionable.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4491/eng@2025-04-08
Civil Appeal E220 of 2024,Mulei v Ndung’u; Stephen Kariuki t/a Jostel Auctioneers (Interested Party) (Civil Appeal E220 of 2024) [2025] KEHC 4502 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Thika,High Court,TW Ouya,8 April 2025,2025.0,Kiambu,Civil,Paul Mulei v Charity Mbaire Ndung'u; Stephen Kariuki T/A Jostel Auctioneers,[2025] KEHC 4502 (KLR),,"1.
This is a notice of motion application for stay of execution of the decree or orders issued by the Small Claims Court in Thika SCCCOM E695 of 2024 in respect of default judgement entered by Hon. Kamau (RM/Adjudicator) on 24th June 2024.
2.
The Appellant has stated that the reason for the application is that the notice of mention was not served on the Appellant being that the first mention slated for mention was 17th June 2024 did not take place as the day was declared a public holiday and the matter was redirected to 24th June 2024 but the Appellant was not informed. That the appellant only learnt of the matter when confronted with a decree when he got to know that the matter had proceeded ex-parte and judgement issued by the court.
3.
The grounds advanced in support of the application are that the Applicant has an arguable appeal with a high probability of success; that the applicant was not served with the pleadings in the lower court case; and that no evidence of such service was provided by the respondent. The Applicant also argues that if stay of execution is not granted, the appeal will be rendered nugatory and the applicant will suffer irreparable damage. That the applicant was not aware of the suit as he was not served with any court documents and disputes the respondent’s allegations that service was effected upon the applicant.
4.
The application is supported by an affidavit by Paul Mulei the Applicant sworn on 22nd August 2024 with a copy of memorandum of appeal annexed.
5.
The Applicant prays for orders that:
i.
Spent
ii.
Spent.
iii.
That this court be pleased to grant leave to the applicant to lodge this appeal out of time.
iv.
That this court set aside the default judgement delivered on 24th June 2024 by the Small Claims Court in SCCCOMM E695 of 2024 and issue any other appropriate orders, relief or declaration that it may deem fit and just to safeguard the applicant’s rights and basic fundamental freedoms.","13.
The considerations to be made in granting stay of execution are laid down 42 Rule 6 of the civil procedure rules which were restated in the case of Hamisi Juma Mbaya v Amakecho Mbaya [2018] eKLR where it was held: -
“
The appellants need to satisfy the Court on the following conditions before they can be granted the stay orders:
1.
Substantial loss may result to the applicant unless the order is made.
2.
The application has been made without unreasonable delay, and
3.
Such security as the Court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant.
14.
In the case of Butt v Rent Restriction Tribunal [1979] eKLR it was posited that the court considers the circumstances of each case before granting an order for stay of execution and emphasizes that the overarching principle guiding the court in deciding whether to grant stay is whether such an order would serve the ends of justice.
15.
Be that as it may, the issue of likelihood to suffer substantial loos cannot be addressed in isolation from the issue of protection of the substratum of an appeal. In RWW v EKW (2019)eklr the court laid down the principle that:
“
The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful. is not rendered “
16.
As stated earlier, the substratum of this appeal revolves around an allegation that service of the court pleadings was not effected upon the applicant and if so , no such evidence was furnished. This court notes that respondent did not file any replying affidavit to discount this allegation and has also failed to put across any sound argument to the contrary.
17.
This court is satisfied that the allegations by the applicant have substance warranting the granting of the orders for stay of execution which are sought herein, to set aside the default judgement and also to give the applicant a chance to file his defence.
18.
The court holds that prayer four is not for consideration at this juncture as it is the main prayer to be considered during the appeal. Indeed a glimpse of the memorandum of appeal is a prayer for judgement/decree issued at the Small Claims court at Thika in SCCOMM E695 OF 2024 to be set aside.
Determination
19.
It is hereby ordered that:
i.
Stay of execution the judgement entered against the applicant by the Adjudicator in Thika SCCCOM E695 on 24th June 2024 is granted pending the hearing and determination of the applicant’s appeal
ii.
That leave is granted to the applicant to file appeal out of time
iii.
That the applicant to deposit the entire decretal sum in court within 30 days from the date hereof failure to which the stay herein shall automatically expire.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4502/eng@2025-04-08
Criminal Appeal E009 of 2024,Muriithi v Republic (Criminal Appeal E009 of 2024) [2025] KEHC 4470 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Kibera,High Court,DR Kavedza,8 April 2025,2025.0,Nairobi,Criminal,Dr Kinyua Muriithi v Republic,[2025] KEHC 4470 (KLR) ,,"1.
The appellant was charged and after a full trial convicted for the offence of carrying on the business of a Pharmacist in premises not registered by the Pharmacy and Poisons (4) Board C/S to Section 23(1) as read with Section 23 (6) of the Pharmacy and Poisons Act. He was sentenced to serve three (3) years imprisonment by the trial court. His appeal this court on conviction was dismissed but partially allowed on sentence. This court substituted the sentence of three years with a fine of Kshs. 20,000 in default to serve 3 months imprisonment.
2.
The applicant filed a notice of motion dated 6th June 2024 seeking a review of this court’s decision. The application is supported by an affidavit sworn on the same date. The applicant argues that the court made an error apparent on the face of the record by holding that the Certificate of Registration for Watson Pharmacy’s premises had expired at the end of 2017. He contends that Section 23 of the Pharmacy and Poisons Act does not provide for expiration of such certificates. Instead, it sets out only two circumstances under which a certificate becomes void: upon change of ownership or if the premises become unsuitable for pharmacy business.
3.
The applicant further asserts that the court failed to consider submissions by the respondent, which emphasized that the law does not require annual renewal of registration certificates. He maintains that the statutory registration fee remains Kshs. 100 as set by Parliament, and that the lower court correctly found this to be the applicable amount. However, this court erred by upholding the Pharmacy and Poisons Board’s unilateral increase of the fee to Kshs. 10,000, an action the applicant claims was arbitrary and unlawful.
4.
The applicant argues that this constituted a mistake or error of law apparent on the face of the record, and he therefore seeks a review of the decision pursuant to the applicable provisions of the Civil Procedure Rules. He urges the court to correct the error and set aside the finding that supported the revised fee.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4470/eng@2025-04-08
Criminal Revision E032 of 2025,Musya v Republic (Criminal Revision E032 of 2025) [2025] KEHC 4559 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Kibera,High Court,DR Kavedza,8 April 2025,2025.0,Nairobi,Criminal,James Kinyoo Musya v Republic,[2025] KEHC 4559 (KLR),,"1.
The applicant filed the present notice of motion application dated 18th February 2025 together with a certificate of urgency of similar date, seeking leave to appeal out of time against his sentence.
2.
The lower court file has been submitted. The records indicate that the applicant filed a similar appeal at Milimani under Criminal Case Number 164 of 2014 and that the appeal was heard and dismissed.
3.
It is my view that this court does not have jurisdiction to hear and determine the present application. The application should be made to the Court of Appeal since the High Court has rendered its decision on 10th September 2017.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4559/eng@2025-04-08
Criminal Case E029 of 2025,Muturi v Republic (Criminal Case E029 of 2025) [2025] KEHC 4466 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Murang'a,High Court,TW Ouya,8 April 2025,2025.0,Murang'a,Criminal,Grace Wangui Muturi v The Republic,[2025] KEHC 4466 (KLR),,"1.
Before this court is an application for bail pending appeal emanating from the judgement of Hon. Susan Mwangi, PM delivered on 13th March 2025 in MCCR E622 of 2023. The application was brought under certificate of urgency dated 26th March 2025 for orders that:
i.
Spent.
ii.
That the honourable court be pleased to admit the applicant to bail pending hearing and determination of the instant appeal.
iii.
That the applicant be released on the same bond terms similar to the bond terms ordered at the trial court.
iv.
That costs of this application be borne by the Respondent.
2.
The application is supported by the following grounds and affidavit to the effect that the applicant is a mother to a 7 year old and a sole breadwinner to her father who is sickly. That she has a fixed abond within Murang’a County and is not a flight risk among other grounds.
3.
The matter was canvassed through oral submissions by the Applicant’s counsel for the state. Counsel for the state reiterated the grounds stated above and in addition added that the applicant has an arguable appeal which raised triable issues and that she is likely to spend a considerable amount of time incarcerated during the pendency of the appeal and the time of the sentence may be substantially served and that would prejudice the applicant.",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4466/eng@2025-04-08
Miscellaneous Civil Application E053 of 2024,Mwakima v Solfin Solutions Limited (Miscellaneous Civil Application E053 of 2024) [2025] KEHC 4589 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Voi,High Court,AN Ongeri,8 April 2025,2025.0,Taita Taveta,Civil,Margaret Wawuda Mwakima v Solfin Solutions Limited,[2025] KEHC 4589 (KLR),,"1.
The Applicant Margaret Wawuda Mwakima filed HCMISC No. E053 OF 2024 against Solfin Solutions Ltd seeking orders that the Arbitrator’s Final Award dated 6th November 2024 be recognized and enforced in accordance with the provisions of Section 36(1) of the Arbitration Act, 1995 and that the decree to issue accordingly.
2.
The Respondent Solfin Solutions Limited also filed HCMISC Case No. E004 of 2025 seeking orders that the said Arbitral Final Award dated 6th November 2024 be set aside in accordance with the provisions of the Arbitration Act 1995.
3.
Both parties also prayed that costs of the applications be provided for.
4.
The two suits were consolidated and will be considered in the holding file HCMISC No. E053 of 2024.
5.
The applicant in HCMISC No. E053 of2024 filed a supporting affidavit dated 13/11/2024 in which she deposed that by virtual of Financing Agreements entered into on 16/8/2023 and on 30/9/2023, the parties agreed that in the event of a dispute, the same shall be referred to Arbitration after a mediation attempt.",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4589/eng@2025-04-08
Miscellaneous Criminal Application E035 of 2024,Mwithiga v Republic (Miscellaneous Criminal Application E035 of 2024) [2025] KEHC 4453 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Nyeri,High Court,DKN Magare,8 April 2025,2025.0,Nyeri,Criminal,Robert Wanjohi Mwithiga v Republic,[2025] KEHC 4453 (KLR) ,,"1.
This is a ruling over a Notice of Motion application filed on 31.5.2024 by the Applicant seeking a reconsideration of sentence to take into account time spent in custody.
2.
The application is supported by the affidavit of the Applicant and it was deposed in material as follows:
a.
The Applicant was charged with attempted defilement contrary to Section 9(1) as read with 9(2) of the Sexual Offences Act whereupon he was convicted on 28.10.2021 and sentenced to serve 10 years imprisonment.
b.
The Applicant was arrested on 28.10.2020 and time spent in remand up to conviction date was not considered as required under Section 333(2) of the Criminal Procedure Code.
3.
The Respondent did not oppose the application only referring to the court file to confirm the allegations.","4.
The issue is whether the trial court failed to take into account the time the Applicant spent in custody in computing the sentence.
5.
Sentencing is a matter of discretion of the trial court and may be interfered only in exceptional circumstances. In the case of MMI v Republic [2022] eKLR, the Court referred to the case of Mokela vs. State (135/11) [2011] ZASCA 166 where the Supreme Court of South Africa held that:
“
It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”
6.
This court will not alter a sentence unless the trial court has acted upon wrong principles or overlooked some material factors. The Court of Appeal in Ogolla s/o Owuor vs. Republic [1954] EACA 270, held that “The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”
7.
This court may also interfere if the sentence is excessive and therefore an error of principle has occurred. In the case of Shadrack Kipkoech Kogo vs R, Eldoret Criminal Appeal No. 253 of 2003 the Court of Appeal held that:
“
Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka-vs-R. (1989 KLR 306))
8.
The trial court is required to take into account the time spent in custody. This is also anchored in the Sentencing Guidelines. The Sentencing Guidelines (2023) provide thus:
2.3.18 Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offence that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated- and courts should make an enquiry particularly with unrepresented offenders- for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.
2.3.20 An offender convicted of a misdemeanour and who had been in custody throughout the trial for a period equal to or exceeding the maximum term of imprisonment provided for that offence, should be deemed to have served their sentence and be released immediately.
9.
The Applicant was arrested on 18.11.2020 and remained in custody after he was convicted on 25.10.2021 and sentenced on 28.10.2021. The trial court erroneously failed to indicate that it had considered the period from the date of arrest on 18.11.2020 being 11 months and 19 days which was not applicable to the Applicant’s case. There is therefore no record that the period in custody was taken care of. In the circumstances Section 333(2) of the Criminal Procedure Code provides:
(2)
Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
10.
The trial court had the duty to show that it considered the time spent in custody and it was not enough to state without justification that the time had been considered without the record confirming such consideration. In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court of Appeal held that the court is obliged to consider the period an accused person has spent in custody before they were sentenced. The Court held thus:
“
Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody.”
11.
Consequently, the period between 18.11.2020 and 28.10.2021 that the Applicant spent in custody is to be taken into account in computing the sentence.
Determination
12.
In the upshot, I make the following orders: -
a.
The sentence meted out is retained save that the sentence shall run from the date of arrest, that is, 18.11.2020.
b.
The file is closed.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4453/eng@2025-04-08
Criminal Appeal E008 of 2024,Njeri v Republic (Criminal Appeal E008 of 2024) [2025] KEHC 4656 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Garissa,High Court,JN Onyiego,8 April 2025,2025.0,Garissa,Criminal,Joseph Muriithi Njeri v Republic,[2025] KEHC 4656 (KLR),,"1.
The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on diverse dates between July 2020 and 09th August, 2023 at unknown location within the republic of Kenya he intentionally caused his penis to penetrate into the anus of JM, a child aged 15 years.
2.
The appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the charge were that on 09.08.2023 at [particular withheld] Wajir Township, within Wajir County he intentionally touched the anus of JM, a child aged 15 years with his penis.
3.
He pleaded not guilty to the charge and a full hearing was conducted. The prosecution called four (4) witnesses in support of its case while the appellant gave a sworn testimony without calling any witness.
4.
At the close of the prosecution’s case, the trial court ruled that a prima facie case had been established against the appellant thereby placing him on his defence.
5.
The trial court found him guilty and subsequently convicted him. He was consequently sentenced to 60 years in jail.
6.
Being aggrieved by the determination of the trial court, the appellant, through his Advocates M/S Stephen Wanyoike & Co Advocates filed an amended petition of appeal on 21.11.2014. In summary, the following grounds were cited.
i.
That the learned magistrate erred in law and facts by convicting him notwithstanding the fact that the prosecution did not prove its case.
ii.
The learned magistrate did not provide the appellant an opportunity for a fair hearing,
iii.
That the learned magistrate did not provide the appellant with the opportunity to call witnesses and in particular the court denied him an opportunity to call four witnesses to his defence.
iv.
That the sentence meted out was harsh and excessive having regard to the circumstances of the case.",,Dismissed (with further directions),https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4656/eng@2025-04-08
Petition E017 of 2024,Nyaga v Republic (Petition E017 of 2024) [2025] KEHC 4404 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Kibera,High Court,DR Kavedza,8 April 2025,2025.0,Nairobi,Criminal,Edward Muriuki Nyaga v Republic,[2025] KEHC 4404 (KLR),,"1.
The applicant was charged and convicted for the offence of murder contrary to Section 203 as read with 204 of the Penal Code in Criminal case No.109 of 2009. He was sentenced to serve a death sentence. Upon appeal, his sentence was reviewed from death sentence to 30 years imprisonment, which was computed from 2nd November 2017; the date of sentence by the High Court in Criminal Appeal No. 74 of 2019.
2.
He has now filed a petition seeking revision of sentence to comply with Section 333(2) of the Criminal Procedure Code.
3.
He filed an affidavit in support of his petition. The arguments raised are that the trial court failed to consider the time he spent in remand custody during the computation of sentence.
4.
I have considered the application, the affidavit in support and the applicable law. I have also considered the trial court record. The issue for consideration is whether the trial court considered the time the applicant spent in remand custody.
5.
The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already spent in custody. The duty to take in account the period an accused person had remained in custody in sentencing under the proviso to section 333(2) of the Criminal Procedure Code which is couched in mandatory terms was acknowledged by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others v Kenya Prison Service & 2 others [2021] eKLR.
6.
From the record, the applicant was arrested on 2nd September 2009 and was never released on bail/bond. He was convicted on 2nd November 2017. He, therefore, spent eight (8) years two (2) months in remand custody.",,Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4404/eng@2025-04-08
Family Appeal E003 of 2023,Odhiambo v Ooko (Family Appeal E003 of 2023) [2025] KEHC 4576 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Busia,High Court,WM Musyoka,8 April 2025,2025.0,Busia,Family,Benedict Otieno Odhiambo v Fredrick Onyango Ooko,[2025] KEHC 4576 (KLR) ,,"1.
The appeal herein arises from a decision of the trial court, in Busia CMCSC No. 151 of 2017, of 15th November 2022. The grounds of appeal revolve around the trial court not appointing an administrator in place of the previous administrator; cancelling title deeds of persons who were not party to the proceedings; entering into the domain and jurisdiction of the land court; addressing the issue of customary law rights without jurisdiction; and not appreciating that the estate had been distributed after due consideration to the interests of the grandmother of the respondent.
2.
The cause, in Busia CMCSC No. 151 of 2017, was in the estate of Philip Ondus Titus Odhiambo, who had died sometime in 2002. The cause was at the instance of Benedict Otieno Odhiambo, the appellant herein, who styled himself as a son of the deceased. He listed 8 individuals as the survivors of the deceased, being himself, Enos Oluoch Omuok, Johanes Omuok Apondi, Martin Ogonda Oluoch, Paulo Ratula, Jackim Oduor Nyambal and Ramlus Ahenda Owino. Their relationship with the deceased was not disclosed. The deceased was said to have died possessed of Samia/Butabona/579.
3.
Letters of administration intestate were duly made on 28th February 2018, to the appellant, and a grant was subsequently issued, dated 12th March 2018.
4.
The appellant sought confirmation of the grant, vide an application, dated 15th October 2018, where Samia/Butabona/579 was proposed for distribution amongst 10 individuals, being himself, Enos Oluoch Omuok, Johanes Omuok Apondi, Martin Ogonda Oluoch, Paulo Ratula, Jackim Oduor Nyambalu, Ramlus Ahenda Owino, Onyango Obeyi, Fredrick Onyango Ooko and Patrick Otieno Oduory. Benedict Otieno Odhiambo, Enos Oluoch Omuok, Johanes Omuok Apondi, Martin Ogonda Oluoch, Paulo Ratula, Jackim Oduor Nyambal and Ramlus Ahenda Owino were identified as son and grandsons of the deceased, while Fredrick Onyango Ooko and Patrick Otieno Oduory were categorised as dependants. The grant was confirmed on 11th April 2019, for the estate to be distributed in the manner proposed, and a certificate of confirmation of grant was issued, dated 11th April 2019.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4576/eng@2025-04-08
Criminal Appeal E060 of 2024,Okello v Republic (Criminal Appeal E060 of 2024) [2025] KEHC 4490 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Kibera,High Court,DR Kavedza,8 April 2025,2025.0,Nairobi ,Criminal,Robert Okello v Republic,[2025] KEHC 4490 (KLR) ,,"1.
The appellant was charged and after full trial convicted by the Subordinate Court of the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars are that on 11th of November 2022 at [particulars withheld] in [particulars withheld] Sub-county within Nairobi County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of J.C. a child aged 15 years. He was sentenced to serve twenty (20) years imprisonment.
2.
Aggrieved, he filed an appeal challenging the totality of the prosecution's evidence against which he was convicted. He urged the court to quash his conviction and set aside the sentence imposed.
3.
This is the first appellate court and in Okeno v R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify.
4.
The prosecution called five (5) witnesses in support of their case. The complainant, JC (PW4), testified under oath that she was born in 2007 in Uganda and arrived in Kenya in October 2022. Three days later, she moved into her aunt’s house, the appellant’s wife. She alleged that the appellant took her to his room, removed her underwear, and inserted his penis into her vagina. Afterwards, he wiped blood from her vagina with a handkerchief and warned her not to tell anyone. She immediately confided in her neighbour, Mama [particulars withheld] (PW2, Diana Muya), who advised her to stay silent, saying the appellant would eventually be caught.
5.
Three days later, the appellant allegedly assaulted her again. This time, her screams brought Mama [particulars withheld] to the house. Mama [particulars withheld] took her to the hospital, and then to Muthangari Police Station to give statements. The complainant was later moved to a safe house in [particulars withheld]. She identified the appellant in court, and her account matched Mama [particulars withheld]’s testimony, who also identified him.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4490/eng@2025-04-08
Criminal Appeal E006 of 2025,Okuku v State (Criminal Appeal E006 of 2025) [2025] KEHC 4464 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Kisumu,High Court,A Mabeya,8 April 2025,2025.0,Kisumu,Criminal,Brian Okoth Okuku v State,[2025] KEHC 4464 (KLR) ,,"1.
The appellant was charged with the offences of burglary contrary to section 304(2) of the Penal Code and stealing contrary to section 279 (b) of the Penal Code.
2.
The appellant pleaded guilty to both charges. After considering the appellant’s mitigation as well as the probation report and the fact that the appellant was a 1st time offender who had been in custody awaiting the probation report for one month, the Court proceeded to sentence the appellant to serve a period of five years on each charge. The trial court directed that both sentences run concurrently.
3.
Aggrieved by the said sentence, the appellant filed a petition of appeal dated the 4/2/2025 in which he raised the following grounds: -
a.
The learned trial court magistrate erred in both law and in facts in not considering the appellant’s sentence in criminal case no. E510 OF 2024 and E511 of 2024 ought to run concurrently but not consecutively since they both originated/committed in the same transaction and connection.
b.
The learned trial magistrate erred in both law and in facts in not considering the 10 years’ sentence is excessive and harsh.
c.
The learned trial magistrate erred in both law and in facts in failing to consider that the appellant’s plea of guilty was a sincere act of remorseful deserving a commensurate lenient sentence.
4.
When the appeal came up before this Court for the first time on the 7/4/2025, the appellant applied to withdraw the appeal. There was no appearance for the state and thus the application for withdrawal was unopposed.",,Withdrawn,"https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4464/eng@2025-04-08
"
Miscellaneous Criminal Application E017 of 2024,Okumu v Republic (Miscellaneous Criminal Application E017 of 2024) [2025] KEHC 4539 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Busia,High Court,WM Musyoka,8 April 2025,2025.0,Busia,Criminal,Maryanne Patricia Okumu v Republic,[2025] KEHC 4539 (KLR) ,,"1.
The applicant herein was convicted of murder, contrary to section 203, as read with section 204, of the Penal Code, Cap 63, Laws of Kenya, and was sentenced to 18 years imprisonment, by Karanjah J, in Busia HCCRC No. E005 of 2022.
2.
She has now come before me, by an undated Motion, filed on an unknown date, seeking reduction of sentence, premised on various provisions of the Constitution.
3.
Once the High Court pronounces itself on a conviction and sentence, in a murder case that it has tried to conclusion, it has no jurisdiction to revisit the matter to reduce the sentence it imposed. The court with jurisdiction, to tinker with the sentence imposed, is the Court of Appeal.
4.
That is where the applicant should have headed, for she had a right to appeal against the sentence, within 14 days after it was pronounced. I cannot exercise a jurisdiction or power or mandate which I do not have.
5.
The applicant has cited several provisions of the Constitution, as justification for her application. I have read and re-read those provisions, and I see nothing there which grants me any jurisdiction to do that which she invites me to do.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4539/eng@2025-04-08
Criminal Petition 36 of 2023,Ombok v Republic (Criminal Petition 36 of 2023) [2025] KEHC 4506 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Siaya,High Court,DK Kemei,8 April 2025,2025.0,Siaya,Criminal,Moses Omondi Ombok v Republic,[2025] KEHC 4506 (KLR) ,,"1.
The Petitioner herein Moses Omondi Ombok filed the present petition seeking for review of sentence. His gravamen is inter alia; that he had been charged together with others in Bondo SPM’s Court vide Cr. No. 729 pf 2016 in regard to two counts of robbery with violence contrary to Section 296 (2) of the Penal Code; that he was inter convicted of the two counts and ordered to serve fifty (50) years’ imprisonment which were ordered to run concurrently; that he later lodged an appeal before the High Court vide Siaya HCCRA No. 12 of 2018 which was later dismissed; that he has since reformed; that the merits a non-custodial sentence; that he is now aged 55 years and he deserves to be given the benefit of the remaining years in prison being waived; that he has acquired several certificates while in prison and which prove that he has really been rehabilitated and merits to be given a chance to be released back to the society.
2.
The Respondent did not file a response to the said application.
3.
The application was canvassed by way of oral submissions.
4.
The Applicant submitted that after his appeal was concluded by the High Court. his attempt to move to the Court of Appeal for redress were thwarted by the High Court which declined to grant leave to lodge appeal out of time unless he paid certain costs towards filing of appeal. He submitted that he was left with no option but to come back to this court for sentence review.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4506/eng@2025-04-08
Civil Appeal E1375 of 2023,Omwega v Kendagor & another (Civil Appeal E1375 of 2023) [2025] KEHC 4455 (KLR) (Civ) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,TW Ouya,8 April 2025,2025.0,Nairobi,Civil,Duncan Nyachoti Omwega v William Kemboi Kendagor & Linus Kiprop,[2025] KEHC 4455 (KLR) ,,"1.
The present appeal challenges the ruling delivered by the trial court on the 8th of December 2023, setting aside the interlocutory judgement that was entered against the 1st respondent on the 29th of July, 2022.
2.
The background to the appeal, is that the appellant instituted a suit at the lower court against the respondents, claiming general damages for pain, suffering and loss of amenities, special damages together with costs of the suit; for the injuries that he sustained following an accident that occurred on the 2nd of December, 2020, involving him as a pedestrian walking along Mfangano Street and Motor Vehicle registration no. KCV 708 B (the suit vehicle), belonging to the 1st respondent.
3.
In the plaint dated the 29th of April, 2021, it is alleged that on the 2nd of December,2020, at around 8:30PM, as the plaintiff was walking along Mfangano Street, the respondents, their driver and/or agent so negligently controlled Motor Vehicle registration no. KCV 708 B, causing it to lose control, veer off the road and hit the plaintiff; as a result, he sustained serious bodily injuries.","7.
After considering the evidence placed before the court, the learned trial magistrate made a finding that there was no evidence to confirm that the 1st respondent was duly served with the summons and the suit papers as alleged; as such, the learned trial magistrate found that the interlocutory judgment was irregular, and proceeded to set it aside.
8.
Aggrieved by the trial court’s decision, the appellant filed the instant appeal vide a Memorandum of Appeal dated the 11th of December, 2023, citing six (6) grounds of appeal which can be summarised as follows; that the learned trial magistrate erred in fact and in law: in allowing the 1st respondent’s application dated the 19th of September, 2023; in setting aside the judgement duly entered against the 1st respondent on the 29th of July, 2022; in failing to consider the 1st respondent’s blatant acts of evasion and refusal to participate in the trial proceedings at the lower court which led to the interlocutory judgement being entered against him; by failing to consider and properly evaluate the appellant’s submissions thereby arriving at a wrong conclusion; in failing to properly evaluate the evidence on record and applying wrong principles of law, thereby arriving at a wrong conclusion; and that the ruling by the learned trial magistrate was not only unjust against the weight of evidence, but that it was based on misguided points of fact and wrong principles of law, thereby occasioning a miscarriage of justice.
9.
On the above grounds, the appellant prayed that the ruling delivered by the lower court on the 8th of December, 2023, be set aside and annulled.
10.
The appeal was prosecuted by way of written submissions following the direction issued on the 13th of June, 2024. I have duly considered the appellant’s submissions dated the 24th of June, 2024, filed on his behalf by his learned counsel Owino K’Ojwando & Co. Advocates. The respondents did not file their written submissions.
11.
I have also carefully considered the grounds of appeal together with the appellant’s written submissions as well as the evidence on record and the impugned ruling by the learned trial magistrate. Having done so, I find that the only issue for determination in this appeal is whether the trial court erred in setting aside the interlocutory judgement entered against the 1st respondent on the 29th of July, 2022.
12.
As stated herein above, the learned trial magistrate set aside the interlocutory judgement entered against the 1st respondent on grounds that it was irregular, as there was no evidence on the court’s record to show that the 1st defendant was duly served with summons to enter appearance and the suit documents.
13.
It is well settled that the issue of service in litigation is crucial, as such, this court must satisfy itself that the 1st respondent was duly informed of the suit at the trial court but failed to enter appearance. Considering that service upon the 2nd respondent is not disputed; the appellant was required to demonstrate by way of evidence that the 1st respondent was either personally or through their authorized agents served with the summons to enter appearance, before he moved the court to enter an interlocutory judgement against him.
14.
The guiding law on service of summons is found in Order 5 of the Civil Procedure Rules. Order 5 rule 7 makes it clear that where there are several defendants, service of summons must be effected on each defendant separately. The said provision of law stipulates thus: “Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.”
15.
Order 5 Rule 8 (1), however allows a plaintiff in a suit to effect service of summons to an agent authorized to accept service on behalf of a defendant, where the plaintiff is unable to serve the summons personally upon a defendant. The said provision of law states thus: “Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.”
16.
This rule was reiterated by the Court of Appeal, in the case of John Akasirwa versus Alfred Inai Kimuso (C.A. NO. 164 OF 1999) (UR); which was cited with approval by the High Court in National Bank of Kenya limited versus Puntland Agencies Limited & 2 others [2006] KEHC 2040 (KLR) as follows: “ In the case of JOHN AKASIRWA – V – ALFRED INAI KIMUSO (C.A. NO. 164 OF 1999) (UR) the court of appeal indicated the proper mode of service on individual as follows: “Proper service of summons to enter appearance in litigation is a crucial matter in the process whereby the court satisfied itself that the other party to litigation has notice of the same and therefore chose to enter appearance or not. Hence the need for strict compliance with order 5 Rule 9 [1]. The ideal form of service is personal service, it is only when the defendant cannot be found, that service on his agent empowered to accept service is acceptable.”
17.
Having stated that, I have thoroughly scrutinized the affidavit of service sworn by the process server on the 21st of January, 2022. In the said affidavit, the process server indicated in paragraph 4 that he was instructed by the 2nd respondent to call the 1st respondent to confirm his place of residence so as to be able to effect service on him. The process server then indicates that he proceeded to call the 1st respondent through his registered number and after introducing himself to him and his reason for calling, the 1st respondent instructed him to take the documents to the Eldoret Shuttle Sacco offices in Eldoret town so that he could pick them from there.
18.
In paragraph 6 of the said affidavit, the process server indicates that he then boarded a matatu belonging to the Sacco from Nairobi heading to Eldoret; and upon his arrival, he was received by the manager of the Eldoret office who instructed him to leave the documents in the office for onward transmission to the 1st respondent.
19.
One of the reasons advanced by the learned trial magistrate for finding that there was no evidence to demonstrate that the 1st respondent was served with the affidavit of service, was that the process server did not indicate in his affidavit of service, the name of the manager that he served the summons to.
20.
Order 5 rule 15 of the Civil Procedure rules, which sets out what should be contained in an affidavit of service, states as follows: “The serving officer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons. The affidavit of service shall be in Form No 4 of Appendix A with such variations as circumstances may require.”
21.
My interpretation of the wordings of the aforementioned provision of law, is that although it is crucial that the names and address identifying the person being served with the summons is indicated in the affidavit of service, the same is not mandatory but it is included where the said information is available; and that is why, in my view, the said provision of law indicates “if any”.
22.
The inclusion of the words “if any”, to the said provision of law, is in my view, necessary because, there are instances where the person served with the summons to enter appearance or any court documents may refuse to sign the documents or even identify themselves to the process serves; and that is why in most cases the affidavit of a process server is admissible in evidence and where the same is uncontested it is considered sufficient evidence of service.
23.
Furthermore, where service is denied by a defendant, Order 5 rule 16 of the Civil Procedure rules empowers the court to make an order for the process server to be cross examined to determine whether or not service was effected on a party denying service of any court documents.
24.
This position was reiterated by the Court of appeal in the case of Shadrack Arap Baiywo versus Bodi Bach [1987] eKLR; as follows: “There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross examination given to those who deny the service.”
25.
Again, the court in William K. Langat versus Joseph K. Sindai [2021] eKLR; stated thus: “Under Order 5 Rule 16 where there is allegation that a summons had not been properly served, the court may have the process server summoned to be cross examined on the service. A reading of this Rule suggests the court may at its own motion make an order for the process server to be examined. One would however expect that the applicant who disputes service to be on the frontline in seeking to have the process server summoned to be examined. The court it appears did not make any order for the examination of the process server and no request was made by the applicant to have the process server summoned for examination. The trial court however upheld the service as proper.”
26.
Based on the above, I am of the considered view that the learned trial magistrate was in error for concluding that the service of summons to enter appearance and other suit documents upon the 1st respondent was not effected simply because the process server did not indicate the name of the manager who he effected service on or that the summons did not indicate the name or signature of the person served. This is more so because, the learned trial magistrate had the option of ordering that the said process server be examined by the 1st respondent to determine whether or not service was effected on the said manager.
27.
Being that as it may, whereas the process server indicated that he called the 1st respondent using his registered line; no evidence was tendered before the trial court demonstrating that the mobile number indicated in the process server’s affidavit of service, and which he allegedly used to call the 1st respondent actually belongs to the 1st respondent.
28.
Furthermore, in as much as Order 5 rule 8 (1) allows for service to be effected on an agent of a defendant; the said rule makes it clear that the said agent must be empowered or authorized to accept such service. This in my view means that summons to enter appearance can only be served on those agents that have been confirmed to be agents of a defendant and those that have been authorized to accept service on behalf of the said defendant.
29.
This position was restated by the court in the case of Kimeu versus Kasese (1970) KLR 32; as follows: “…It is not the relationship of the person served to the defendant but that he was in fact authorized to receive service. Also, that the affidavit of service should specifically state that that person was authorized to receive service”
30.
In this case, although the process server indicated that the he served the summons together with the suit documents on the Manager of Eldoret Shuttle Sacco in Eldoret town offices, there was no evidence to show that the said manager was in fact employed by Eldoret shuttle Sacco or that he was an agent of the 1st respondent, or that he had been authorized by the 1st respondent to accept service of the said summons and other court documents on his behalf.
31.
Considering that the manager introduced himself as the manager of Eldoret Shuttle Sacco, there was need to show by way of evidence that the said manager apart from working for Eldoret Shuttle Sacco, he was also an authorised agent of the 1st respondent for purposes of accepting service of court documents.
32.
Based on the above, I am of the considered view that the manager who accepted the court documents on behalf of the 1st respondent was not an agent authorized to accept service of court documents on his behalf, as such, the purported service was not proper service. I am therefore of the considered view that the interlocutory judgement entered by the lower court against the 1st respondent was regular.
33.
Flowing from the foregoing, I am of the considered view that the present appeal lacks in merit and the same is hereby dismissed. As regards costs, it is trite that costs follow the event and are awarded at the discretion of the court. In this case, considering that the respondents did not file their written submissions in regards to this appeal, each party should bear their own costs.
Determination
34.
This appeal is hereby dismissed. Each party to bear their own costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4455/eng@2025-04-08
Miscellaneous Application E249 of 2024,Opondo v Odebero (Miscellaneous Application E249 of 2024) [2025] KEHC 4562 (KLR) (Family) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Law Courts),High Court,HK Chemitei,8 April 2025,2025.0,Nairobi,Family,Wilfred Barasa Opondo v Camilita Akinyi Odebero,[2025] KEHC 4562 (KLR) ,,"1.
The chamber summons application dated 30th March 2023 by the Applicant seeks the following orders:-
(a)
(a), (b), (c), (d) and (c) spent
(b)
The decision of the Taxing Master delivered on 24th March 2023 in so far as the same related to the reasoning and determination pertaining to the taxation of the bill of costs dated 14th October 2022 be set aside.
(c)
The court be pleased to refer the matter back for re-taxation by a different Taxing Master of the bill of costs and with proper directions thereof.
(d)
In the alternative the court exercises its inherent jurisdiction and be pleased to retax the bill of costs dated 14th October 2022 afresh and or make directions to a fresh taxation.
2.
The application is based on the grounds thereof and the Applicant’s sworn affidavit dated even date.
3.
The application has been opposed by the Respondent vide the replying affidavit sworn on 2nd May 2023.
4.
The issues herein emanate from the matrimonial proceedings by this court wherein Musyoka J delivered a judgement dated 11th December 2014. It appears that the judge directed the parties to agree on how to split the properties equally and in the event of any disagreement a valuation be undertaken and they be sold in a public auction.
5.
The parties disagreed and the valuation was done and, in the ruling, dated 28th September 2017 the court agreed with the valuation which placed the four properties at a value of Kshs.103,500,000.
6.
The Respondent based on the above proceeded to tax the bill and the Taxing Master on 24th March 2023 awarded the party and party costs at Kshs.2,040,985.
7.
The contentious part was the instruction fees which totaled Kshs. 1,399500.
8.
The Applicant has therefore challenged the same through the application herein. I respectfully do not find the application what one can call a Reference in the manner prescribed under Rule 11 of the Advocates Remuneration Order. There is no for instance a request to the Taxing Master for reasons which led to the findings of the sum complained of.
9.
Neither has the Taxing Master responded to any such request by way of explanation.
10.
Nevertheless, and taking into consideration the time this matter has been in the corridors of justice and exercising the powers donated by Article 159 of the Constitution namely expeditious disposal of justice I shall proceed to determine the same procedural lapse notwithstanding.","11.
I have perused the two competing affidavits and the ruling by the Taxing Master. Although it is the argument by the Applicant that there was no basis for the figures arrived at by the Taxing Master, the valuation by M/s Petrum Valuers sanctioned by the court was the basis. The ruling of the court I have alluded to above is crystal clear, namely that the total value of their matrimonial properties was Kshs.103,500,000.
12.
That ruling of 28th September 2017 remains unchallenged. I suppose the Applicant was happy with the outcome.
13.
Based on the said amount and from the reading of the Taxing Masters ruling I do not find any reason to interfere with it. The figures speak for themselves. The scale used by the Taxing Master of the year 2009 was the appropriate one.
14.
The other issues in the bill are basically routine matters and I doubt whether the Applicant has any significant challenge over the same. I do not see any reasons to interfere with any of them.
15.
For the above reasons I do not find the application/reference meritorious and the same is hereby dismissed with costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4562/eng@2025-04-08
Civil Appeal E736 of 2022,Pacis Insurance Company Limited & another v Pacis Insurance Company Limited & another (Civil Appeal E736 of 2022) [2025] KEHC 4433 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Law Courts),High Court,LP Kassan,8 April 2025,2025.0,Nairobi,Civil,Pacis Insurance Company Limited v Chongqing International Construction Corporation,[2025] KEHC 4433 (KLR) ,,"1.
This judgment is in respect to the Appeal and the Cross-Appeal in this matter. The main appeal was preferred by Pacis Insurance Company Limited, whereas the Cross-Appeal was instituted by Chongqing International Construction Corporation.
2.
The suit before the trial court related to a material damage claim by the Respondent vide their plaint dated 18.09.2019 seeking:
a.
A declaration that the Defendant is in breach of the insurance policy
b.
Special damages of Kshs 7,394,585/=
c.
A declaration that the Plaintiff be indemnified by the Defendant against all risks covered by the insurance policy for the period in question
d.
Interest on (b) above at court rates until payment
e.
Such or further orders as this Honourable Court may deem fit to grant.
3.
The Appellant filed a counterclaim dated 03.02.2020 seeking:
a.
A declaration that it is not bound to satisfy the purported policy no. 010/070/01400/2018 as the same was void for lack of payment of premiums to the Defendant now the Plaintiff
b.
A declaration that the Plaintiff now Defendant did not pay insurance premium to the Defendant, and as such the insurance policy no. 010/070/01400/2018 is not enforceable against the Defendant now Plaintiff
c.
A declaration that the Defendant now the Plaintiff is not bound to indemnify the Plaintiff now the Defendant over purported loss over motor vehicle registration no. KCQ 443L under policy no. 010/070/01400/2018 on 1/7/2018 as the said policy was not enforced due to non-payment of premiums to the Defendant
d.
A declaration that under a contract of insurance the insurer does not pay the total loss but pays only the sum assured as total loss, subject to loss adjustment
e.
A declaration do issue that the declared sum assured declared to their agent was Kshs 1,000,000/= and that premiums were not paid to the Defendant hence the insurance policy was void and unenforceable
f.
Costs of the counterclaim
4.
The Respondent called three witnesses in support of its case at the trial court.
5.
PW1, police officer, stationed at Lokichoggio police station, testified that on 12.07.2018 at 5 pm at Natira area along Kakuma-Lokichoggio road, a self-involving accident of a motor vehicle registration KCQ 443L owned by the Respondent caused fatal injuries to 2 of the 3 on board. The said motor vehicle was fully insured and had a sticker C12213143 policy/0XX0/010 Policy no. 010/0070/0XX00/2018 comprehensive cover commencing 14/04/2018 and expiry 13/04/2019 issued by Appellant.
6.
PW2, valuation manager, testified that on 03/07/2019, he prepared a report in respect of motor vehicle KCQ 443L, make Toyota Hilux Double Cabin, year of manufacture 2017. He opined that the said motor vehicle to be a constructive total loss. He assessed the pre-accident value at Kshs 6,280,000/= with a salvage value of Kshs 1,500,000/=. On cross-examination, he testified that there was no way the pre-accident value could have been Kshs one million.
7.
PW3, manager of the Respondent’s company, testified that on 01.07.2018 their vehicle was involved in a road accident that caused two fatalities. The accident was reported at Lokichoggio police station and the Appellant on 02.07.2018. She filled a claim form and submitted it to the Appellant. On 26.09.2018, the Appellant rejected the claim. She testified there was no notice of cancellation of the policy prior to the accident. The insurance documents were handled by Paradigm Insurance Agency. They were not issued any policy documents. The sticker for the subject vehicle was issued. She testified that no valuation of the vehicle was done as it was brand new. They settled the claims with the families of the victims, and the Appellant was informed but didn’t respond.
8.
DW1, the Appellant’s manager, stated that the Respondent was unknown to them as the subject vehicle was not insured by them. The claim opening document was dated 10.07.2018 of 3 vehicles, inclusive of the subject vehicle. The amount paid was Kshs 105,513/=, the sum insured for each vehicle was Kshs 35,000/= for Kshs 1,000,000/= respectively. That the premiums were never received by the Appellant. That a claim of this nature required proposal forms and policy documents. The sum insured was Kshs 1,000,000/=. That no valuation was done. The money paid to Paradigm was never remitted to them. The receipt by paradigm was dated 14.08.2018. The payments of the alleged deceased families were made without the involvement of the Appellant. That Paradigm was the agent of the Plaintiff and not their agent.
9.
On cross-examination, she testified that Paradigms were issued insurance stickers by the Appellant. That there was no presumption of payment by the Respondent if they were holding a certificate of insurance. She confirmed that all the certificates held by the Respondent were genuine. That the policy for KCQ 443L had been cancelled due to non-payment of the premium. That the claim form was generated by the Appellant, showing no policy was in existence. They had not made the agent a party to the suit.
10.
On re-examination, he stated that the letter offering settlement at Kshs 1,000,000/= was not an admission of liability.
11.
After the hearing, a judgment was rendered on 19.082022 against the Appellant. It was decreed that:
a.
A declaration that the Defendant is in breach of the insurance policy
b.
The counterclaim by the Defendant fails as the contract which the Defendant breached was properly entered into and they had records of all transactions between the Plaintiff and their agent
c.
Special damages of Kshs 6,280,000/= for loss of motor vehicle KCQ 443L
d.
Interest on (c) above at court rates from the date of filing suit until full payment is made
e.
The costs of the suit and the counterclaim are hereby awarded to the Plaintiff
12.
Both Pacis Insurance Company Limited (hereinafter referred to as ‘Pacis Insurance’) and Chongqing International Construction Corporation (hereinafter referred to as ‘Chongqing Corporation’) were aggrieved by the judgment. Pacis Insurance filed the main appeal and Chongqing Corporation filed a Cross-Appeal.","17.
This Court has duly considered the entire record and the parties’ submissions as well as the decisions referred to.
18.
The High Court, as the first appellate Court, is enjoined to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See the case of Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123).
19.
This Court nonetheless recognizes the trite and firmly established doctrine that an appellate court ought not to interfere with the findings of fact rendered by a trial court, save in instances where such findings are shown to be unsupported by any evidence on record, are predicated upon a fundamental misapprehension or misapplication of the evidence adduced, or are demonstrably founded upon erroneous principles of law. This was the holding in Mwanasokoni -versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga -versus- Kiruga & Another (1988) KLR 348).
20.
Bearing the above in mind, this Court has come up with the following issues for determination: -
i.
Whether the trial court erred in holding that the alleged agent acted on behalf of the Appellant, and whether such a finding was contrary to the legal limits governing agency relationships in insurance.
ii.
Whether the trial court erred in finding that there existed a valid and enforceable contract of insurance between the parties in the absence of a signed policy document, and whether the court failed to properly appreciate that payment and receipt of premium was a condition precedent to the insurer’s liability under the policy.
iii.
Whether the trial court erred in holding that the subject motor vehicle, KCQ 443L, was validly insured under policy/0XX0/010 Policy No. 010/0070/0XX00/2018, and in failing to find that the said policy was neither valid nor in force under the Insurance Act.
iv.
Whether the trial court erred in finding the Appellant liable under the alleged insurance policy despite the Appellant’s denial of insuring the subject vehicle or receiving premium in relation thereto.
v.
Whether the trial court erred in awarding a sum exceeding the insured value, and in failing to find that the claimed amount of Kshs. 6,280,000/= was not covered or insured by the Appellant.
vi.
Whether the trial court erred in awarding damages that were not specifically pleaded and proved by the Respondent.
vii.
Whether the trial court erred in finding that the Appellant had breached a contract of insurance, and whether such finding was supported by the evidence on record.
viii.
Whether the trial court erred in dismissing the Appellant’s counterclaim.
ix.
Who should bear the costs of the suit and of this appeal.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4433/eng@2025-04-08
Civil Appeal E223 of 2024,Pizrada Motors Limited v Adisa & another (Civil Appeal E223 of 2024) [2025] KEHC 4437 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Eldoret,High Court,E Ominde,8 April 2025,2025.0,Uasin Gishu,Civil,Pizrada Motors Limited v Esther Adisa & Ephrahim Onyiego Juma,[2025] KEHC 4437 (KLR) ,,"1.
By a Notice of Motion dated 22/10/2024, the Appellant/Applicant seeks the following orders:
1.
Spent.
2.
Spent.
3.
That this Honourable Court be pleased to stay proceedings of the Small Claims Court in Case No. E1150 of 2023 and subsequently the judgment delivered on 20/09/2024 together with all consequential orders pending the hearing and determination of this Appeal.
4.
That this Honourable Court be pleased to vary and set aside orders of the judgment dated 20/09/2024 pending the hearing of this Appeal.
5.
That this Honourable Court be pleased to make such other orders as the interest of justice may demand in the circumstances.
6.
That costs of this Application be provided for.
2.
The Application is anchored on the grounds therein and it is further supported by the Affidavit sworn by Waseem Shakir, the Manager of the Applicant on the same date.
3.
He deposed that the Plaintiffs/ Respondents filed suit against the Appellant/Applicant and prayed for general and special damages for injuries which were allegedly caused by the Appellant/Applicant's motor vehicle KDB 724N. The Appellant/Applicant adduced evidence that at the time of the alleged accident, he had already sold and transferred the said motor vehicle to the 3rd Party/Respondent herein. He furnished the court with a sale agreement dated 20/01/2021. It is therefore his contention that at the time of the accident the 1st Appellant/Applicant was neither the owner nor in physical possession of the subject motor vehicle registration number KDB 724N. That pursuant to the purchase, the Appellant/Applicant handed over the said motor vehicle to the 3rd party/ Respondent who was to take control, possession and liability thereof.
4.
He further deposed that the Appellant/Applicant's advocate pursuant to the orders of the court issued on 9/06/2023 filed a third-party notice which was allowed. That the same was to join the buyer of the motor vehicle who had actually caused the accident to the suit so as to bear the liability of causing the accident. That on 17/06/2024, the Honourable entered judgment against the third-party. That the Appellant/Applicant was therefore perplexed when on 20/09/2024 judgment was entered against the Appellant/Applicant by the Learned Magistrate. That this judgement contradicted her initial judgment entered as against the 3rd party. That being dissatisfied with the decision of the Honourable Magistrate, the Appellant/Applicant intends to file an appeal against the said decision. He contended that execution is imminent unless orders of stay of execution sought herein are granted by this Honourable Court and that the Appeal is arguable and raises a prima facie case for determination by the High Court as evinced by the grounds in the Memorandum of Appeal attached herewith.
5.
He deposed that the Judgment delivered by the Magistrate is unfair as it contradicts her previous judgment which vests liability upon the third party and not their company and that it is trite law that an arguable Appeal is one that raises issues worthy of ventilation before the Honourable Court. He states that he stands to suffer great prejudice and irreparable harm should this Application not be granted and further that if the stay sought is not granted, the appeal will be rendered nugatory and the exercise futile. That he has demonstrated that he has a prima facie case; that the Application was filed expeditiously and that the Application has established sufficient cause to the satisfaction of the court that it is in the interested of justice to grant the orders sought and that he is willing to abide by any conditions that will be issued by this Honourable Court.","28.
I have carefully considered the application, the supporting affidavit thereto, the Respondents’ Replying Affidavit and the parties’ respective submissions. The only issue for determination is
Whether the Appellant/Applicant has met the conditions necessary for the grant of stay of execution.
29.
The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:
No order for stay of execution shall be made under subrule (1) unless—
(a)
the Court is satisfied that substantial loss may result to the Applicant unless the order is made and that the Application has been made without unreasonable delay; and
(b)
such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant
30.
On the ground that the applicant should have made its Application in the lower court first, I am persuaded by the holding of the court case of Patrick Kalaya Kulamba & Another vs Philip Kamosu and Roda Ndanu Philip (Deceased) [2016] eKLR and Equity Bank Limited vs. West Link Mbo Limited [2013] eKLR that as long as an appeal from the substantive decision of the lower court has been lodged, an application under Order 42 Rule 6(1) of the Civil Procedure Rules can be entertained afresh in the High Court which in that capacity exercises what can be termed “original jurisdiction” and that the said jurisdiction is not dependent on whether or not a similar application had been made in the lower court, or the fate thereof.
31.
The factors to consider in stay pending appeal is set out in the Court of Appeal decision in Butt v Rent Restriction Tribunal [1982] KLR 417. The Court gave guidance on how a Court should exercise discretion in such an Application and held as follows: -
1.
The power of the Court to grant or refuse an Application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2.
The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the judge’s discretion.
3.
A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the Applicant at the end of the proceedings.
4.
The Court in exercising its discretion whether to grant [or] refuse an Application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the Appellant had an undoubted right of appeal.
5.
The Court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon Application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.
32.
In the instant case, all considered, I am satisfied that the applicant has an arguable case, has come to court timeously and that upon a prima facie consideration of his main ground of appeal I am also satisfied that he stands to suffer substantial loss if the stay sought is not granted. I have considered his submission that because it is the third party and not him that caused the accident, the court should not condemn him to provide security. On this ground, it is enough for the court to state that this assertion is precisely his main ground of appeal and so he cannot be a judge in his own cause for the simple reasons that his appeal is yet to be heard and determined. Further, as was held in the case Arun C Sharma Vs. Ashana Raikundalia T/A Raikundalia & Co. Advocates & 2 Others (2014) eKLR which decision I agree with entirely, the purpose of the security to be provided under Order 42 Rule 6(2) of the Civil Procedure Rules is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor.
33.
On the prayer seeking that the judgement of the Hon Magistrate be varied and or set aside, I agree with the submission by Counsel for the respondent that that is a determination that the court can only make after the hearing of the appeal filed by the applicant and cannot be granted at this stage of the stay proceedings. The above said, the appellant/applicant Application is now hereby allowed as follows:
a.
That the proceedings of the Small Claims Court in Case No. E1150 of 2023 and the judgment delivered on 20/09/2024 together with all consequential orders thereto be and is now hereby stayed pending the hearing and determination of this Appeal.
b.
That the Applicant/Appellant is to file the record of Appeal within 60 days from the date of this Ruling.
c.
That the Applicant/Appellant is to deposit the entire decretal sum in a joint interest earning account in the names of both Advocates for the parties within the next 45 days from the date of this Ruling failure to which the stay orders herein issued shall be deemed to have lapsed.
d.
The Applicant/Appellant is to bear the cost of the Application.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4437/eng@2025-04-08
Criminal Case E008 of 2025,Republic v Adanje (Criminal Case E008 of 2025) [2025] KEHC 4393 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Kakamega,High Court,AC Bett,8 April 2025,2025.0,Kakamega,Criminal,Republic v Dancan Adanje,[2025] KEHC 4393 (KLR) ,,"1.
The Accused Dancan Andaje was initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code with the particulars being that on 16th day of June 2024 at Shibeye Sub-location in Kakamega County, he murdered Lillian Andayi.
2.
The charge against the Accused was later reduced to manslaughter following a plea bargain agreement dated 10th February 2024. Upon the court being satisfied on the factual basis of the plea agreement and that the Accused was competent, of sound mind and acted voluntarily as in Section 137H and 137G of the Criminal Procedure Code, the court adopted the plea agreement and the new charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code was read over and explained to the Accused who unequivocally admitted both the charge and the facts.
3.
The facts of the offence were set out in paragraph 4 of the Plea Agreement. The deceased is Lilian Andayi aged 13 years old. She was found deceased in a maize plantation on 28th June 2024 by which time the body was decomposed. Prior to that, the mother had called Tom Mulama to report that the deceased was missing. The mother was reported to the chief and a search ensued resulting the discovery of the body. The police were called and collected the body then commenced investigations. On 4th July 2024, the deceased was buried and after her burial, the Accused presented himself at Butere Police Station where he confessed that he was the one who had strangled the deceased. The report was booked and the Accused arrested and charged. A post-mortem was done on the body of the deceased where the Doctor concluded that the cause of death was asphyxia due to manual strangulation. The post mortem report was produced as an exhibit.
4.
The court called for a pre-sentence report to assist it in the sentence.
5.
At the sentence hearing, Mr. Mondia for the Accused submitted that the Accused is remorseful as clearly demonstrated by his actions.
6.
Ms. Chala for the prosecution submitted that Accused was not a first offender as he had a previous conviction for which he spent two years in jail for stealing a motor cycle. Regardless of the conviction, she pointed out that the Accused had saved the court’s time by entering into a plea agreement at the earliest opportunity thereby saving judicial time. She however stated that the Accused had taken away one’s life and deserved punishment and that the parties had agreed to a fifteen (15) year sentence.
7.
In the pre-sentence report dated 18th February 2025, it is stated that the Accused demonstrates a degree of remorse for his actions as evidenced by his voluntary surrender to the police. He is said to accept full responsibility for his actions although he said that he was not aware that the victim had died.
8.
An interview with the victim’s family established that her guardian, who is an Uncle was in profound pain and bitterness. According to the Uncle, the victim underwent severe physical and emotional trauma as she was brutally defiled then murdered and the thought of this experience has caused immense psychological and emotional distress to the family of the victim whose father is deceased. The severity of the offence has left a lasting impact on the deceased’s family who are not ready to forgive and reconcile with the Accused. The pre-sentence report recommends a custodial sentence for the Accused since even the community is hostile towards him.
9.
The Accused accosted a defenceless thirteen (13) years old girl and defiled then strangled her to death in a maize plantation. Thereafter, he appears to have suffered so much guilt that he voluntarily came back from Eldoret where he had fled and voluntarily surrendered himself.
10.
From the outset the Accused pleaded guilty to killing the deceased. He however, claimed that the killing was not intentional.
11.
In the case of Charo Ngumbao Gugudu v. Republic [2011] eKLR, the Court of Appeal held as follows:-
“
Further, the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that it is thus not proper exercise for the court to fail to look at the facts and circumstances of the case in their entirety before settling for any given sentence. See Ambani Vs R [1990] eKLR.”
12.
From the post mortem report, the deceased died from asphyxia secondary to manual strangulation. The deceased was killed while the Accused was in the course of defiling her, which is in itself an offence. The acts of the Accused are morally reprehensible and call for a custodial sentence as a deterrence and as a punishment.","13.
I have considered the fact that there appears to have been no eye witness to the offence and the fact that the body of the deceased was discovered about four (4) days after she disappeared when it was decomposed. There is a strong possibility that had the Accused not confessed to the offence, no one would ever have known how the deceased met her death. I have also considered the fact that by voluntarily choosing to enter into a plea bargain agreement, he has saved the state some resources, and saved judicial time.
14.
Considering all the aggravating and mitigating circumstances, I hereby sentence the Accused person to fifteen (15) years imprisonment to run from the date of his arrest which is 27th January 2025.",Convicted,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4393/eng@2025-04-08
Criminal Revision E103 of 2024,Republic v Amoth (Criminal Revision E103 of 2024) [2025] KEHC 4507 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Siaya,High Court,DK Kemei,8 April 2025,2025.0,Siaya,Criminal,Republic v John Jura Amoth,[2025] KEHC 4507 (KLR),,"1.
Learned counsel for the Applicant has sought for revision of the lower court’s orders dated 25/11/2024. The request has been made through a letter dated 17/12/2024 wherein the learned counsel has raised complaints inter alia; that the trial court made an error when it discharged the Respondent under Section 35 of the Penal Code; that the trial court misused the discretion granted to it under Section 35 aforesaid when it ought to have made a different order in view of the fact that the Respondent had pleaded guilty to an offence of assault causing actual harm contrary to Section 251 of the Penal Code; that there was a miscarriage of justice since the offences of assault are rampant in the area warranting the court to sent out severe warning as a form of deterrence but not to condone it; that the sentence passed was illegal as the same did not reflect the gravity of the offence committed by the Respondent; that this court should invoke its revisionary powers under Section 364 of the Criminal Procedure Code and reverse the order and impose a more appropriate sentence.
2.
Revisionary power of the High Court is granted is donated to the High Court under Article 165 (6) and (7) of the Constitution which provides as follows:
(6)
The High Court has supervisory jurisdiction over the subordinate courts and over every person, body or authority exercising a judicial or quasi -judicial function but not a superior court.
(7)
For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person or authority referred to in clause (6) and may make orders or give any direction it considers appropriate to ensure the fair administration of justice.
Revisionary power is also donated to the High Court under Section 362 and 364 of the Criminal Procedure Code which are as follows:
362 (1) – The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
364 – (1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders or which otherwise comes to its knowledge, the High Court may –
a.
In the case of a conviction, exercise a case of any of the powers conferred on it as a court of a court of Appeal by Section 354, 357 and 358, and may enhance the sentence;
b.
In the case of any other order other than an order of acquittal, altar or reverse the order.
c.
In proceedings under Section 203 or 296 (2) of the Penal Code the Prevention of Terrorism Act, the Narcotic Drug and Psychotropic Substances (Control) Act, the prevention of Organized Crimes Act, the Proceeds of Crime and Anti Money Laundering Act, the Sexual Offences Act and the Counter -Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.
(2)
No order under this Section shall be made to the prejudice of an accused person unless he had had an opportunity to being heard either personally or by an advocate in his own defence; provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3)
Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
(4)
Nothing in the Section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
(5)
When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
3.
Being guided by the above provisions, it is necessary to reproduce the proceedings of the lower court which are now called into question. Indeed, the Respondent pleaded guilty to a charge of assault contrary to Section 251 of the Penal Code with the particulars being that on 18/7/2024 at around 2300 hrs at Chore village, East Asembo Location, North Ramba Sub Location in Rarieda Sub County within Siaya County assaulted Elias Ouma Opiyo causing him actual bodily harm. The facts were that on 18/7/2024 at 11.00 pm Chore village East Asembo Location complainant Elias Ouma Opiyo was heading home from his shamba when he was accosted by accused and his two sons who started assaulting him and that he got injured on the head, neck and lower limb. He reported at Ndori police station. He went to Akala Health Centre where he was treated. The treatment note that was issued by Akala Health Centre was produced as Exhibit 1 while the P3 form issued by police at Ndori was produced as Exhibit 2.
4.
Upon the Respondent pleading guilty to both the charge and the facts, the learned trial magistrate entered a plea of guilty upon the accused’s unequivocal plea of guilty. The Respondent was duly convicted. The learned trial magistrate called for a presentence report which was duly availed by the Probation department. After receiving the mitigation and the presentence report, the learned trial magistrate ruled as follows: “I have considered the circumstances of the offence in the presentence report dated 25/11/2024; I have considered the character of the accused and the fact that the complainant was the aggressor; I hereby discharge absolutely accused person pursuant to Section 35 of the Penal Code; file closed.”
5.
It is from the foregoing order of the learned trial magistrate that the Applicant was aggrieved and lodged the present revision.","I have considered the revision aforesaid together with record and the provisions of the Constitution and Criminal Procedure Code. the issue for determination is whether the revision application has merit.
7.
it is noted that the Respondent had been charged with an offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code which provides that any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years. The trial court called for a pre-sentence report which was duly availed and which recommended the Respondent to be placed under probation for a period of six months. The report further indicated that the Respondent acted in self defence after the complainant attacked him in his home at night. The report also indicated that the parties had an unresolved boundary dispute. The Respondent upon pleading guilty to the charge sought for leniency. The learned trial magistrate appears to have been persuaded by the sentiments of the probation officer but it seems she was carried away by the fact that the probation officer indicated that the Respondent had acted in self-defence. I find that it was erroneous on the part of the learned trial magistrate to have discharged the Respondent under Section 35 of the Penal Code. It is clear that the trial magistrate went into error when she made the following observation “having considered the character of the accused and the fact that the complainant was the aggressor..” yet the Respondent had pleaded to the charge. Indeed, the Respondent had the opportunity to qualify the charge by raising the issue that he had acted in self defence so as to call for a full trial in the matter. It is also clear that the Respondent having failed to raise such a defence, then the eventual conviction upon a plea of guilty should have attracted a sentence commensurate with his blameworthiness. Hence, the order made by the learned trial magistrate led to a miscarriage of justice in that the least that she could do was to place the Respondent under probation as proposed by the probation officer. It is obvious that the learned trial magistrate failed to capture the sentiments of the complainant who sustained injuries and that no evidence whatsoever was presented to the court to the effect that the Respondent sustained any injuries while acting in self defence. The trial court in discharging the Respondent was akin to a slap on the wrist as it were. The unconditional discharge aforesaid did not reflect the gravity of the offence committed by the Respondent.
8.
In view of the foregoing observations, it is my finding that the Applicant’s revision dated 17/12/2024 has merit. The same is allowed. The order made by the learned trial magistrate dated 25/11/2024 discharging the Respondent under Section 35 of the Penal Code is hereby set aside and substituted with an order that the Respondent be and hereby ordered to serve a probationary sentence of six (6) months from the date hereof.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4507/eng@2025-04-08
Criminal Appeal 99 of 2023,Republic v Gitau & 2 others (Criminal Appeal 99 of 2023) [2025] KEHC 4420 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Kibera,High Court,DR Kavedza,8 April 2025,2025.0,Nairobi ,Criminal,Republic v Jesse Mburu Gitau & Jared Oduor Osodo & Crispus Munene,[2025] KEHC 4420 (KLR),,"1.
The respondents were acquitted by the Subordinate Court after the close of the prosecution’s case on eight counts, including forgery of a document of title to land (Counts I, VI, VII, and VIII) contrary to Section 350(1) of the Penal Code; procuring execution of a document by false pretences (Counts III, IV, and V) contrary Section 355 as read with Section 349; and uttering a false document (Count II) contrary to Section 353. Dissatisfied with the acquittal, the appellant filed an appeal, arguing that the prosecution had established a prima facie case on all counts and that the trial court erred in failing to put the respondents on their defence.
2.
This is the first appellate court and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify.
3.
The prosecution availed twelve (12) witnesses in support of their case.PW1, Habib Omar Kongo, the CEO of Aviton Enterprises Limited, testified that the company owned a 24-acre plot in Umoja Estate (Title No. Umoja/Block 83/530), allotted by the Nairobi City Council on 4th September 1992. He adduced various ownership documents including the allotment letter, title deed, lease documents, land fee receipts, and a registrar’s memorandum dated 30th November 1995 confirming the title’s authenticity. Aviton later applied for subdivision, supported by a demand notice dated 23rd April 1995 and a plan dated 6th April 2001, culminating in approval on 15th May 2001 and issuance of a subdivision certificate and reference number 144024/36. A total of 324 titles were subsequently issued.
4.
The subdivision process involved surveyors PW2, Livingstone Gitau, and PW7, Jacob Oyato, and was confirmed by PW5, Isaac Nyaga, a City Council officer. However, in March 2006, PW1 was informed that the Wazee Makadara self-help group presented documents at the chief's office claiming to have purchased the same land. Mr Omar denied selling it and reported the matter to Buru Buru Police Station and later CID HQ. PW12, Sgt Joseph Kiragu, confirmed investigations showed Aviton's legitimate ownership.
5.
The respondents had filed a civil suit against Aviton, despite the company having surrendered the former land title (83/580) for a new one (83/530). In 2010, plot number 83/580 suspiciously re-emerged with a new survey map indicating mosque ownership. The self-help group allegedly sold plots (including 83/899) to a church, but Aviton had already transacted with the church through an agreement dated 25th May 2000.
6.
PW3, Peter Njoroge, testified that in 2015 he was asked to provide a survey plan and found duplication of plot numbers. PW4, Reverend Simon Muhuku, confirmed that his church, KAG Umoja, purchased the land from Aviton in 2000 and held proper documentation. PW6, George Mugenyo, testified that a 1992 survey plan prepared by Jacob Oyato was genuine and had been approved, but another forged version existed.
7.
PW8 (Polly Gitimu), PW9 (Baptista Kihungo), and PW10 (Adv. Gildine Karani) all supported the authenticity of Aviton’s ownership through official land records and lease documents.
8.
A prima facie case has been defined in the case of Bhat vs Republic [1957] EA 532 as follows:
‘’It may not be easy to define what is meant by a prima facie case but at least it must mean one which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.’","9.
Upon reviewing the record, it is clear that the prosecution’s case predominantly relied on circumstantial evidence. Notably, the testimony of PW1, Habib Omar Kongo, confirmed the legitimate ownership of land by Aviton Enterprises. The prosecution further presented evidence regarding the subsequent discovery of fraudulent land transactions allegedly involving the respondents. However, despite the allegations, no direct evidence was tendered to establish that the respondents were responsible for the forgery of documents or that they knowingly used fraudulent documents to obtain property.
10.
Concerning the charge of forgery of documents (Counts I, VI, VII, and VIII), although the respondents were implicated in the suspicious re-emergence of plot number 83/580, with a new survey map suggesting mosque ownership, there was an absence of conclusive evidence directly linking the respondents to the forgery of these documents. Furthermore, the documents themselves were not produced in court to substantiate the forgery allegations.
11.
Regarding procuring the execution of a document by false pretences (Counts III, IV, and V), the prosecution suggested that the respondents sold land to third parties, including a church. However, the prosecution failed to present direct evidence proving that these transactions were procured by fraudulent means. Although the respondents filed a civil suit concerning the land, the prosecution did not adduce sufficient evidence to prove their fraudulent intent.
12.
In relation to uttering a false document (Count II), there is no direct evidence to demonstrate that the respondents knowingly passed off forged documents as genuine.
13.
While the evidence tendered by the prosecution supports the authenticity of Aviton’s land ownership, it fails to establish a direct link between the respondents and the offences with which they were charged. The trial court’s decision to acquit the respondents was grounded on the absence of direct evidence linking them to the alleged crimes.
14.
Courts are bound by the principle of deciding cases based solely on the evidence presented, free from fear or favour. In this case, I find that the trial court properly considered the evidence, and its hands were tied in reaching a verdict based on the available facts. The appellant has failed to prove the grounds of appeal and has not demonstrated that it established a prima facie case against the respondents.
15.
Consequently, it is my considered finding that the appellant’s appeal lacks merit and is hereby dismissed. The ruling of the trial court, dated 6th October 2022, is upheld.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4420/eng@2025-04-08
Judicial Review Miscellaneous Application E030 of 2024,Republic v Insurance Regulatory Authority; Old Mutual General Insurance Kenya Limited (Exparte Applicant); Tropic Air Limited (Interested Party) (Judicial Review Miscellaneous Application E030 of 2024) [2025] KEHC 4570 (KLR) (Judicial Review) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Law Courts),High Court,JM Chigiti,8 April 2025,2025.0,Nairobi,Judicial Review,Republic v Insurance Regulatory Authority; Old Mutual General Insurance Kenya Limited; Tropic Air Limited,[2025] KEHC 4570 (KLR),,"1.
The application before this Court is the Notice of Motion dated 3rd April, 2024. The application is brought Under Order 53 Rule3(1) of Civil Procedure Rules 2010.It seeks the following orders:
1.
That an order of Certiorari, to remove and bring to this High Court for the purposes of quashing, the decision by the Respondent dated 3rd November, 2023 directing the Applicant to pay a claim within thirty (30) days of the decision.
2.
That an order of prohibition directed against the Respondent and the interested party, prohibiting them through their servants and/or agents or directly from in any way enforcing the decision dated 3rd November, 2023.
3.
That costs be provided for.
2.
The application is supported by a statutory statement dated 18th March, 2024 and a Verifying Affidavit by Franklin Nyaga sworn on 18th March, 2024.
3.
It is the Applicant’s case that the interested party approached Infiniti Aviation of South Africa through the interested party's brokers (LFV) in2014 and purchased Aviation Hull and Liability Insurance and the contracting and policy documentations were handled between the interested party and Infiniti.
4.
Infiniti then approached Old Mutual General Insurance (then UAP) through the interested party's brokers (LFV) to participate in the risk which we accepted a share of 12.5% for Aviation Hull and 1% for Liability resulting to a facultative reinsurance business.
5.
This resulted in a facultative obligatory reinsurance facility which was then filed with the Respondent in 2015 for its review and approval. The same was later reviewed and approved.
6.
According to them the risk assessment, underwriting and claims control was retained by Infiniti Insurance as evidenced by the wordings of the Claims Control and the Cut through clauses in the acceptance documents received and signed off by the interested party on 25th October 2021.
7.
On 4th August 2022, the Helicopter 2012 Eurocopter AS350 B3E 5Y-CCP (hereafter the Helicopter) was involved in an accident in Turkana.
8.
The accident was reported to the lead insurer in South Africa, Infiniti and the Interested Party's agent's (Stefan Potgienter) proceeded to notify the Applicant of the accident on 4th August 2022.
9.
It is contended that the lead re insurer advised the Applicant that the claim was not admissible and that the Applicant should decline the same which the Applicant proceeded to decline the claim on inter-alia two grounds: -
a.
Material non-disclosure in breach of the insurance principle of uberimmae fidei to wit; that it regularly and as a matter of business practice flew scenic flights below 500 ft AGL and fairly regularly, at less than 100ft AOL;
b.
The interested party flew its aircraft below 500 feet contrary to Section I0(l)(e) of the Civil Aviation (Rules of Air) Regulations,2018 (Rules of Air).
10.
The interested party approached the Respondent who via a letter dated 14th March, 2023 informed the Applicant that it had received a request to investigate and determine a complaint from. Tropic Air Limited pursuant to Section 204A of the Insurance Act. On 20th March, 2023 vide a letter, the Applicant responded explaining the reasons for declining to pay the Claim.
11.
The Respondent responded to the letter via an email dated 22nd March, 2023 indicating that the Applicant should avail evidence of the primary insurer/insurers including insurers including how Infiniti, Nature, MUA, and UAP participated in the risk.
12.
It is averred that the Applicant responded to this email on 4th April, 2023 explaining and the Respondent responded on the same date requesting requested the Applicant to avail the approvals which the Applicant did on the same day.
13.
It is its case that on 12th April, 2023 the Respondent invited the Applicant for a meeting during which meeting various issues were raised by the Respondent around the on boarding process, regulatory aspects and whether the claim was properly declined or not.
14.
It is contended that it addressed the onboarding process vide email of 18th April, 2023.
15.
It is averred that subsequent follow up meetings were held between the Respondent and Applicant on 2nd May, 2023 and 5th June, 2023.
16.
It is the Applicant’s case that they were never invited to a hearing on the issue of whether it was right in declining to pay the Claim thus violating their legitimate expectation.","69.
Upon perusing the pleadings, the supporting documents, the rival submissions and authorities cited by counsel the following are the issues for determination;
i.
Whether this court has jurisdiction.
ii.
Whether or not the applicant has made out the case for the grant of the order sought.
iii.
Who shall bear the costs.
Whether this court has jurisdiction;
70.
In the case of Owners of the Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd [1989] eKLR, where the Court held that jurisdiction is a fundamental prerequisite, and any proceedings conducted without it are null and void.
71.
In order to determine whether or not this court has jurisdiction, the Applicant submitted that it is entitled to question the impugned decision dated 3rdNovember, 2023 notwithstanding existence of execution proceedings in Insolvency Cause No. E004 of 2024 and Civil Appeal No. E058 of 2024 which is an Appeal filed by the Interested Party questioning jurisdiction of the Insurance Appeal's tribunal to (i) extent time within which to file an Appeal (ii) Holding the Interested Party in Contempt is misplaced.
72.
The Applicant admits that Section 204A(iii) of the Insurance Act states that any party dissatisfied with the decision of the Respondent may within thirty (30) days appeal to the tribunal, the tribunal is not the appropriate forum to resolve the question of whether the decision dated 3rdNovember, 2023 is marred with procedural impropriety having been made in complete breach and/ or disregard of inter-alia Articles 47 & 50 of the Constitution as read together with Section 4 of the Fair Administrative Actions Act as the tribunal is not empowered to determine violation of constitutional rights.
73.
This court is in agreement with the holding in the case of Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) where the court held thus:
“
Having considered the above complaints, we reiterate our earlier finding in this judgment that the mandate and jurisdiction to determine these questions lie with the ELC under Articles 22, 23(3) and 162(2)(b) of the Constitution as read with Section 4(1) of the Environment and Land Act. We say so because neither the NET, EPRA nor EPT have the jurisdiction to determine alleged violations of the Constitution. That right to access the court for redress of alleged constitutional violations, should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms. We say this persuaded by the elegant reasoning in William Odhiambo Ramogi & 3 others v Attorney General & 6others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR where the High Court (Achode (as she then was), Nyamweya (as she then was), & Ogola, J) stated: “In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere ""bootstraps"" or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.""
We agree with the above reasoning and find that the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief. This is because the act of seeking constitutional relief is contingent upon the adequacy of an existing alternative means of redress. If the alternative remedy is deemed inadequate in addressing the issue at hand, then the court is not restrained from providing constitutional relief. But there is also a need to emphasize the need- for the court to scrutinize the purpose for which a party is seeking relief, in determining whether the granting of such constitutional reliefs is appropriate in the given circumstances. This means that a nuanced approach to the relationship between constitutional reliefs for violation of rights and alternative means of redress, while also considering the specific circumstances of each case to determine the appropriateness of seeking such constitutional reliefs, is a necessary prerequisite on the part of any superior court”.
74.
This court is persuaded that there are peculiar circumstances in this suit that call for consideration in the existence of Appeal No. 10 of 2023 - Old Mutual Insurance Kenya Limited vs Insurance Regulatory Authority and Tropic Air Limited before the Insurance Appeals Tribunal. The Applicant herein obtained exparte orders and subsequently procured contempt of court orders against the Interested Party. There is High Court Civil Appeal No. E047 and High Court Civil Appeal No. E058 of 2024 - Tropic Air Limited vs Insurance Regulatory Authority & Old Mutual Insurance Kenya Limited.
75.
Further to this, the court notes that The High Court stayed further proceedings before the Insurance Appeals Tribunal pending the determination of High Court Civil Appeal No. E47 of 2024. The decision of the Insurance Appeals Tribunal precipitated proceedings under the Insolvency Act being Insolvency Cause No. E004 of 2024 - Tropic Air Limited vs Old Mutual General Insurance Kenya Limited in which the Applicant herein obtained stay orders.
76.
The court in the instant suit is satisfied that the foregoing clearly fits into what would invite a nuanced approach to the relationship between constitutional reliefs for violation of rights and alternative means of redress and it is clear that the above cases present special and specific circumstances that have an impact and sway on the court in determining the approach that the Applicant should have adopted.
77.
This invites the court to determine whether or not the Applicant is bound by the doctrine of exhaustion. In the case of Council of County Governors v Attorney General & 12 others [2018] eKLR where it was held that applying and exhausting alternative dispute resolution mechanisms, is a condition precedent to filing of court action by either of the units of government. Only after applying and exhausting the available dispute resolution mechanisms should parties resort to judicial intervention.
78.
The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved.
79.
In the case Communication Commission of Kenya & 5 others v Royal Media Services Ltd & 5 Others [2014] eKLR it was held that: the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition.
80.
The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:
“
The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”.
81.
In S v Mhlungu, [1995] (3) SA 867 (CC) a South African case, Kentridge AJ, stated in the dissenting opinion respecting the principle of avoidance (at paragraph 59), that he would lay down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.
82.
In the case of Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others [2015] eKLR the Court of Appeal stated that: -
“
It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be of last resort and not the first port of call the moment a storm brew… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts...These accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.""
83.
In Mohamed Ali Baadi & Others v The Attorney General & 11 others it was held that while our jurisprudential policy is to encourage parties to exhaust and honor alternative forums of dispute resolution where they are provided for by statute the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. Thus, in the case of Dawda K. Jawara vs Gambia, it was held that:
“
A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality]...the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is considered available only if the applicant can make use of it in the circumstances of his case.""
84.
The principle running through the above cases is that where there is an alternative remedy or where Parliament has provided a statutory appeal process, it is only in exceptional circumstances that an order for Judicial Review would be granted, and that in determining whether an exception should be made and Judicial Review granted, it is necessary for the Court to look carefully at the suitability of the appeal mechanism in the context of the particular case and ask itself what, in the context of the internal appeal mechanism is the real issue to be determined and whether the appeal mechanism is suitable to determine it.
85.
In the case Mark Ndumia Ndungu -Versus- Nairobi Bottlers Limited & Another (2018) eKLR (supra) the High court cited with approval the case of Dawda K Jawara v Gambia 147/95-149/96 on availability of effective alternative remedies, where it was held that:
“
A remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint... The government’s assertion of non-exhaustion of local remedies will therefore be looked at in this light... a remedy is considered available only if the applicant can make use of it in the circumstance of his case.” (emphasis added)
86.
Hon. Justice Mativo in Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR stated as follows:
“
The uncompromising manner in which courts have consistently enforced the sub judice rule was best explained in Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga,[13] which held that it is not the form in which the suit is framed that determines whether it is sub judice, rather it is the substance of the suit (emphasis ours). The court went further and stated that in determining whether or not sub judice applies, it is the substance of the claim that ought to be looked at rather than the prayers sought.”
87.
It is my finding that Appeal No. 10 of 2023 - Old Mutual Insurance Kenya Limited vs Insurance Regulatory Authority and Tropic Air Limited, High Court Civil Appeal No. E047 and High Court Civil Appeal No. E058 of 2024 - Tropic Air Limited vs Insurance Regulatory Authority & Old Mutual Insurance Kenya Limited and Insolvency Cause No. E004 of 2024 - Tropic Air Limited vs Old Mutual General Insurance Kenya Limited are substantially related to the suit before this court.
88.
Issuing the orders, sought will no doubt have an impact these suits or have an impact on the subsisting or pending activities in the said files thereby occasioning an embarrassment to the court. In any event the Applicant has not demonstrated why it did not seek redress within these suits.
89.
The applicant has not exhausted the redress avenues available within the above legal avenues that are at its disposal. In any event, the applicant has not made an application to be exempted from the doctrine of exhaustion.
90.
Having found as I have above, this court has to down its tool in line with the principles as settled in the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019/ eKLR, /36) wherein it was observed that,
“
Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a millity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel
""Lillian S"" Caltex Oil, (Kenya) Ltd [1989) KLR 1, ""jurisdiction is everything. Without it, a court has no power to make one more step""
Disposition;
91.
The applicant has not made out a case fit for the grant of the orders within the principles of judicial review.
Order;
The suit is hereby dismissed with costs.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4570/eng@2025-04-08
Judicial Review Miscellaneous Application E002 of 2025,Republic v Kenya Wildlife Service & 2 others; Lesimbasele & another (Exparte Applicants) (Suing as the Legal Representative of the Estate of Iltelesian Ortowa - Deceased) (Judicial Review Miscellaneous Application E002 of 2025) [2025] KEHC 4450 (KLR) (8 April 2025) (Judgment),Judgment,High Court at Marsabit,High Court,FR Olel,8 April 2025,2025.0,Marsabit,Judicial Review,Republic v Kenya Wildlife Service & 2 others; Lesimbasele & another,[2025] KEHC 4450 (KLR) ,,"1.
The Judicial review-notice of motion application under consideration is the one dated 17th January 2025, filed under provisions of Order 53 Rule 3(1) of the Civil Procedure Rules, Section 8 & 9 of the Law Reform Act, Cap 26, and seeks for orders that;
a.
That the Honourable court be pleased to grant an order of judicial Review by way of Mandamus compelling the Respondents and specifically the 1st Respondent through the 2nd Respondent (CMCC) to deliberate upon the Ex parte Applicant’s claim lodged on 30th March 2023 within the next 30 days pursuant to Regulation 27(1) of the wildlife conservation and Management compensation Regulations 2017.
b.
That the 1st Respondent do report to this Honourable court its decision and/or deliberations under prayer (1) above on or before the Expiry of 30 days from the date of issuance of this order.
c.
An order of Mandamus be issued to compel the respondents and specifically the 1st Respondent to pay the Exparte Applicant the sum of Kshs 5,000,000/= recommended, verified by the 2nd Respondent and approved by the 3rd Respondent as compensation to the estate of the deceased in compliance with Regulation 27(1),(2) & 30(1).
d.
That the 1st Respondent be and is hereby ordered to comply by paying the Ex parte Applicant the said approved sum within 14 days from the date of issuance of the order of Mandamus.
e.
That costs and incidentals to the Application be provided for.
f.
Such further and other reliefs that this Honourable court may deem just and expedient to grant.
2.
This application is supported by the grounds advanced on the face of the said Application, the statutory statement, verifying and further Affidavit of the Applicant. The respondent did oppose this Application through the Replying Affidavit sworn by their legal office, Leon Kalisto","21.
I have considered all the pleadings filed and respective submissions filed by both parties. The issues which arise for determination are whether the 1st respondent is wrongly sued, and secondly, if the mandamus order sought should issue and to what extent.
(i) Liability of the 1st Respondent and whether they are a Necessary party to these proceedings.
22.
The 1st respondent’s role and duties are well defined under Section 7(c), 7(m), 18, 19 and 25 of the wildlife conservation and Management Act, 2013 and since the import of judicial review application is to scrutinize the decision-making process or dispute resolution process, statutorily undertaken by the 1st respondent, they then become a necessary party to these proceedings.
23.
Secondly, the 1st respondent’s contention that the statutory obligation to settle the Ex parte Applicant's claim lay with the Cabinet Secretary for Tourism and Wildlife also holds no water, and is an issue which has been settled by the Court of Appeal in Kenya wildlife service Vrs Joseph Musyoka Kalonzo (2017) Eklr where they held that;
“
The appellant admits the duty to manage and conserve wildlife. That duty comes with the attendant responsibility to shoulder any claims of loss or damage caused by the breach of that duty. The law on this point was succinctly pronounced in Joseph Boru Ngera & Another v Kenya Wildlife Service & Rift Valley Agricultural Contractors Limited (2014)eklr amongst others, is still good law on this point. The cabinet secretary referred to in the Act pays money on behalf of the appellant. Neither the court nor the parties should concern themselves with the internal arrangement of the appellant as to whether it is the CEO of the appellant or the cabinet secretary who should disburse the money.
iii. Whether Orders of Madamus should issue as sought herein
24.
In Republic vs Kenya National Examinations Council ex parte Gathenji and 9 Others, [1997] e KLR. The said Court held as follows in this regard:
“
The next issue we must deal with is this: What is the scope and efficacy of an Order of Mandamus? Once again we turn to Halsbury’s Law of England, 4th Edition Volume 1 at page 111 from paragraph 89. That learned treatise says:-
“
The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”
At paragraph 90 headed “the mandate” it is stated:
“
The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”
What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed….”
25.
The requirements for an order of mandamus to issue were further explained by Mativo J. in Republic vs Principal Secretary, Ministry of Internal Security & another ex parte Schon Noorani & Another [2018] eKLR as follows:
“
Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General), and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration).The eight factors that must be present for the writ to issue are:-
(i)
There must be a public legal duty to act;
(ii)
The duty must be owed to the Applicants;
(iii)
There must be a clear right to the performance of that duty, meaning that:
a.
The Applicants have satisfied all conditions precedent; and
b.
There must have been:
i.
A prior demand for performance;
ii.
A reasonable time to comply with the demand, unless there was outright refusal; and
iii.
An express refusal, or an implied refusal through unreasonable delay;
iv.
No other adequate remedy is available to the Applicants;
v.
The Order sought must be of some practical value or effect;
vi.
There is no equitable bar to the relief sought;
vii.
Ona balance of convenience, mandamus should lie
26.
The 1st and 2nd respondents have a statutory duty imposed by sections 18 and 25 of the Wildlife Conservation & Management Act, 2013, to receive, verify, and recommend appropriate payment for persons who have suffered bodily injury or are killed by wildlife. The deceased was killed by a rogue elephant on 05.03.2023, and subsequently, the Ex parte Applicants officially lodged their claim with the respondents through the Marsabit county wildlife office on 30.03.2023.
27.
At the time of filing this claim, about 22 months later, the said claim had not been acted upon, yet regulation 27(1) of the Wildlife Conservation and Management Compensation Regulations 2017 provides that the same must be determined within a period of 30 days from the date the incident was reported to the respondents.
28.
The Ex parte Applicants have a right under Articles 47 and 50 of the Constitution of Kenya to have their claim expeditiously dealt with, and also to have their dispute resolved in a fair manner. The respondents have failed to do so and further have not offered any explanation as to why there has been a delay in undertaking their statutory duty. To the extent that the Ex parte Applicants have proved that there has been a dereliction of duty on the part of the 1st and 2nd respondents and are entitled to be granted the prayers sought under prayers (1) and (2) of their application under consideration.
29.
The Ex parte Applicants also sought for an order of mandamus be issue compelling the 1st respondent to pay them the sum of Kshs 5,000,000/= as verified and recommended by the 3rd respondent based on the provisions of Regulations 27(1)(2) & 30(1) of the Wildlife Conservation and Management Compensation Regulations 2017. This prayer is premature as it involves the implementation of a decision not yet arrived at, and may be subject to an Appeal by a party not satisfied with the recommendation.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4450/eng@2025-04-08
Criminal Case 1 of 2017,Republic v Kimindu (Criminal Case 1 of 2017) [2025] KEHC 4411 (KLR) (8 April 2025) (Sentence),Sentence,High Court at Murang'a,High Court,TW Ouya,8 April 2025,2025.0,Murang'a,Criminal,Republic v Dominic Mutuku Kimindu,[2025] KEHC 4411 (KLR) ,,"1.
The convict was found and convicted of the offence of Manslaughter contrary to section as read with 202 as read with section 205 of the Penal Code after he pleaded guilty to two counts of the offence of Manslaughter having entered into a plea bargain agreement with the prosecution dated 17th October 2017.
2.
The particulars of the offence of Count 1 were that on the 20th day of December 2016 at Kaguku Centre, within Gatanga sub-county, Murang’a County Unlawfully caused the death of Ann Ndume. The particulars of count II were that on the 20th day of December 2016 at Kaguku Centre, within Gatanga sub-county, Murang’a County Unlawfully caused the death of Martha Mukonyo Mutuku. The former was his estranged wife while the latter was his three-year old daughter.
3.
In mitigation the convict stated that he is 60 years old and has been in remand for eight years and two months since 9th January 2017. That he has a family of five children ranging from 30 to 25 years of age. That he was previously a casual laborer due to which he developed back complications. He is remorseful and would like to go back to the society. He prayed to the court to give him a non-custodial sentence so that he can support his children who are also unemployed.
4.
In compliance with the Bond and Bail Policy Guidelines and the Supreme Court Directions on the Muruatetu I, the Court called for pre-sentencing report, where it was stated that the offender had a troubled marriage with his wife, the first victim and had separated severally. At the time of the incident the first victim had separated from the offender and was cohabiting at the shopping Centre, within the community with another man.
5.
The first victim was the offender’s 4th Wife (the offender) having separated from others for what he termed as extra marital affairs. He had six children with the deceased, the last born of which is the second victim in this case.
6.
The report indicates that the lifestyle of the first victim was a source of pain and embarrassment to the offender. He felt provoked and his judgement was impaired considering that the first victim did not even hide her new boyfriend from the community which provoked him into committing the offence.
7.
The report states further that the Offender’s attitude towards the offence is that of remorse and he pleads with the court for a non-custodial sentence. He regrets his actions and has realized that there were other ways of resolving the issues between him and the first victim. He seeks forgiveness of court, family and the society.
8.
The offender’s family have forgiven him and they look forward to receiving him back in their midst. The offender owns up to the offence and is receptive towards a non-custodial sentence. It is noted however that he still requires guidance and counseling to help him accept and live with the consequences of his actions. A non- custodial sentence will make the above possible.
9.
The report concludes that the offender is suitable for a non-custodial sentence for a period of three years on an individualized treatment plan to address his current psycho-social challenges.","10.
The objectives of sentence are:
i.
Retribution – to punish the offender in a just manner for his criminal conduct
ii.
Deterrence – to deter the offender from committing a similar offence
iii.
Rehabilitation – to enable the offender to reform
iv.
Restorative –to address the needs arising from the criminal conduct such as loss and damages
v.
Community protection – to protect the community by incapacitating the offender
vi.
Denunciation – to communicate the community condemnation.
11.
In this matter the offender has owned up to the offence by pleading guilty albeit to a lessor charge of manslaughter on the basis upon which he was convicted.
12.
I have also taken into account the seriousness of the offence in that the offender caused the death of not one but two victims the second of which was an innocent 3-year-old child who was not party to the alleged disputes between the offender and the first victim. This court also notes that two of the convict’s other children suffered severe burn wounds but luckily survived.
13.
Based on the social inquiry report on the offender, his remorseful attitude and the fact that his family has forgiven him, the most appropriate sentence for the convict is a probation sentence of three (3) years. This court takes into account that the offender has been in custody for 8 years and 2 months since 9th January 2017.
14.
The convict has a right of appeal on both conviction and sentence.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4411/eng@2025-04-08
Criminal Case 26 of 2010,Republic v M’mbo (Criminal Case 26 of 2010) [2025] KEHC 4427 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Kakamega,High Court,AC Bett,8 April 2025,2025.0,Kakamega,Criminal,Republic v Silas M'mbo,[2025] KEHC 4427 (KLR) ,,"1.
On the 21st February 2015, the Accused was convicted of the offence of murder and sentenced to death.
2.
The Accused was aggrieved by the death sentence and lodged an appeal which was heard and determined in his favour.
3.
On 16th October 2023, the Court of Appeal allowed the Accused’s appeal against the death sentence, set aside the sentence and remitted the matter to this court for re-sentencing.
4.
When the matter came up or re-sentencing, the State urged the court to call for a sentence review report from the Probation Office. The Probation report was filed after which the Accused, who had filed written submissions asked the court for a date for ruling.
5.
In his submissions, the Accused states that he has undergone rehabilitation programmes while in prison and was now a reformed person. Notably, he says that he has undergone counselling and has repented and sought forgiveness from God. According to him, he has served a significant portion of the sentence and in the process, acquired skills in tailoring and agriculture that would not only make him self-reliant but also help him contribute to nation building.
6.
As an auxiliary to his submissions, the Accused filed a letter of recommendation from the Officer-in-Charge, Kibos Maximum Security Prison detailing the courses and skills that the Accused has acquired while in prison. From the letter, it is evident that the Accused has undergone spiritual trainings severally. He has also attained a Grade III certificate in Tailoring and is stated to be a reliable tailor in the prison industry.
7.
The Officer-In-Charge of the prison commends the Accused for good behavior and leadership skills. He is said to be disciplined, passionate about his tailoring work, and an active member of the Prison’s church who spends his free time ministering the gospel to his fellow inmates.
8.
The Accused prays for a rehabilitative approach in the re-sentencing.
9.
The State did not file any submissions.
10.
The sentence review report confirms that the Accused has done extensive training while in prison. It notes that the Accused is remorseful for his actions and acknowledges the gravity of the offence that he committed.
11.
The social inquiry done for purposes of the sentence review report established that the Accused’s home is fraught with tension due to deep-seated inheritance disputes after the Accused father’s demise. The inheritance was exacerbated by the move by three of the Accused’s step-brothers to take possession of the family land.
12.
The report further points out that the prolonged incarceration of the Accused has resulted in a strained relationship between the Accused and his wife and son who are reluctant to have him back home, perhaps as a result of the latent tension that is fueled by the inheritance dispute.
13.
According to the report, re-integration of the Accused into the society may prove difficult given the current division in the family. Since the Accused’s victim was his father, the ambivalent community stand, and the cultural norms that render him at risk of homelessness. The report suggests a cautious approach to the Accused person’s release.
14.
Turning to the circumstances under which the offence was committed, the deceased killed his father. He was seen assaulting the deceased with a stick because he was not happy that his deceased father had allowed the Accused’s sister’s son whom he perceived to be a stranger, to be circumcised in their homestead.
15.
In killing his father over a minor disagreement, the Accused acted in a most heinous manner that deserves to be denounced. A custodial sentence is most appropriate in this case.","16.
I have taken into account the guiding principles of sentencing as laid down in the Judiciary Sentencing Policy Guidelines (2023). I have also taken into account the Muruatetu re-sentencing Guidelines.
17.
In the case of Francis Karioko Muruatetu & Another v. Republic & Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR, the Supreme Court issued the following guidelines:-
“
9.
To obviate further delay and to avoid confusion, the court issued the following guidelines: -
1.
The decision of Muruatetu and the guidelines herein were applicable to sentences of murder under sections 203 and 204 of the Penal Code only.
2.
The Judiciary Sentencing Policy Guidelines were to be revised in tandem with the new jurisprudence enunciated in Muruatetu.
3.
All offenders who had been subject to the mandatory death penalty and desired to be heard on sentence were entitled to a re-sentencing hearing.
4.
Where an appeal was pending before the Court of Appeal, the High Court would entertain an application for re-sentencing upon being satisfied that the appeal had been withdrawn.
5.
In the re-sentencing hearing, the court had to record the prosecution’s and the appellant’s submissions under section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on a suitable sentence.
6.
An application for re-sentencing arising from a trial before the High Court could only be entertained by the High Court, which had jurisdiction to do so and not the subordinate court.
7.
In a sentence re-hearing for the charge of murder, both aggravating and mitigating factors such as the following, would guide the court: -
i.
Age of the offender;
ii.
Being a first offender;
iii.
Whether the offender pleaded guilty;
iv.
Character and record of the offender;
v.
Commission of the offence in response to gender-based violence;
vi.
The manner in which the offence was committed on the victim;
vii.
The physical and psychological effect of the offence on the victim’s family;
viii.
Remorsefulness of the offender;
ix.
The possibility of reform and social re-adaptation of the offender; and,
x.
Any other factor that the court considered relevant.
8.
Where the appellant had lodged an appeal against the sentence alone, the appellate court would proceed to receive submissions on re-sentencing.
9.
The guidelines would be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They would also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu.”
18.
This court is obliged to take into account both the aggravating and the mitigating factors as it considers the suitable sentence to be imposed.
19.
I have perused the records of the trial court. When the Accused person was called upon to present his mitigation, his advocate said that they had nothing to say in mitigation. The only conclusion I can draw from the record is that the Accused was not remorseful even after having caused his father’s death. However, it appears that after imprisonment, the Accused further reflected on the consequences of his actions and therefore took responsibility for the same and has expressed remorse.
20.
I have taken into account the submissions by the Accused and the pre-sentence report, as well as the principles of re-sentencing set out in the Muruatetu case. I have also considered the circumstances of the case and the fact that the deceased succumbed to a raptured spleen that appears to have been caused by one blow as the post mortem revealed no other injuries. It is my considered view that the Accused deserves a deterrent sentence geared towards rehabilitation.
21.
I therefore sentence the Accused to seventeen (17) years imprisonment. The said sentence shall run from the date the trial began which is 13th August 2010.
22.
Those are the orders of the court.",Convicted,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4427/eng@2025-04-08
Criminal Case 57 of 2015,Republic v Mulupi & 2 others (Criminal Case 57 of 2015) [2025] KEHC 4408 (KLR) (8 April 2025) (Judgment),Judgment,High Court of Kakamega,High Court,AC Bett,8 April 2025,2025.0,Kakamega,Criminal,Republic v Boniface Mulupi & 2 others,[2025] KEHC 4408 (KLR),,"1.
The Accused persons, Boniface Mulupi, Alex Mulupi and Lewis Mulupi were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars being that on the 25th and 26th August 2015 at Lunyu village in Manda Sub-location they jointly willingly and unlawfully murdered one Charles Shitemu Juma.
2.
The Accused persons pleaded not guilty to the offence and the case proceeded to hearing in which the Prosecution called six witnesses.
3.
PW1, Alfred Juma Shitemi recalled that on 25th August 2015 at 8.00 a.m., he was taking tea at home while his wife was working near the deceased’s house. A child was sent to call the deceased to take tea but the deceased was found with a rope on his neck. PW1’s daughter Grace, who had gone to call the deceased, and his wife informed him of the discovery. He went into the house and confirmed that his son had died. He observed that the deceased had a rope on his neck which rope was from a net and ran upto the beam of the roof. He further observed that the deceased was kneeling down and had a cut on the side of the cheek and on his head. PW1 stated that he called the Chief and the Chief advised him not to disturb the scene.
4.
PW1 further recollected that the Assistant Chief came and told him that the deceased had reported to him the previous night that the three Accused persons and their mother Grace had assaulted him when he had gone to ask for his phone from Alex Mulupi, the 2nd Accused. The report was that the deceased had given his phone to the 2nd Accused to charge but the 2nd Accused had removed its battery and put another one therefore leading to the dispute. According to PW1, the Assistant Chief told him that he advised the deceased to report to him in the morning, and that Grace and her children had also gone to his home at night and he told them to report in the morning. The witness said that he knew the Accused persons as they are family members and live about 1Km away from him.
5.
PW1 further recounted that the police came and collected the body of the deceased after taking photographs of the scene. The body was taken to Webuye District Hospital and the suspects were arrested as the body was being taken to the mortuary.
6.
On cross-examination, the witness said that what he mentioned concerning the Assistant Chief were not in the statement neither were Alex Mulupi and Boniface.
7.
PW2 was Anjela Kambua Shisutia who stated that on 25th August 2015 at about 8.00 p.m., she was asleep in her home when she heard shouts. She and her husband Fedha who is the Assistant Chief got up and went out. They found the three Accused persons and Grace beating Charles. Charles was saying that he wanted his phone that he had given to Alex. The witness said that they told them to go and come back in the morning.
8.
PW2 further narrated that Charles complained that the people had injured him. He was bleeding from the back of the head. He requested for a letter to go for medical treatment. Her husband advised him to go and come back in the morning. They all went away and the next morning at about 10.00 a.m., her husband received a phone call that Charles had passed away. She then went to Charles home where she found the body as narrated by PW1. PW2 said that she had known the Accused persons for more than fourteen (14) years as they were her in-laws. She stated that she had no differences with them.
9.
PW3, Omoyo Masafu testified that on 25th August 2015 at 8.00 p.m. he was at his home alone when he heard shouts at his gate. He went there and found two children quarrelling. He knew them, it was Bonny and Charles. Charles was demanding his phone from Bonny. They were holding each other and punching. He separated them and advised them to go to the Assistant Chief and they went away. The next day at midday, he heard that Charles had died.
10.
PW4 was Fedha Chisutia who was the Assistant Chief Monda Sub-location and husband to PW2. He recalled that on 25th August 2015, he was at home when he heard noises outside. On going out, he found Alex Mulupi, Lewis Mulupi, Charles Shitemu and Grace Barasa. They had different complaints. Charles claimed that sometimes back he had given Alex Mulupi his phone battery for charging and it got lost. Alex complained that Charles had threatened to cut him with a slasher. Charles complained that Boniface Mulupi had assaulted him. According to the witness, Charles had blood stains on the front of his top clothes. He told the persons to meet him at the office the following day and they went away.
11.
PW4 said that the following day he received a call from the village elder that Charles had died. He went to the scene and found Charles’ body kneeling on the ground with a mosquito net rope around his neck. The body was next to the bed. He phoned the OCS Malava and the police came, took the body to Webuye district hospital.
12.
PW4 said that the Accused persons are brothers and that his father and their father are brothers.
13.
On cross-examination, PW4 said that the group was shouting when they came but left peacefully and he saw blood stains on the deceased clothes and small injuries on the left hand. He further stated that the deceased was a son to this Uncle.
14.
PW5 was Dr. Simon Kisaka who was based at Webuye District Hospital. He recalled that he performed an autopsy upon the body of Shitemi Juma. On examination, he found that the deceased had a small superficial wound on the occipital region which was about 1cm in length. There was a circular mark on the neck and internally, the lungs were reduced in size. The other systems were essentially normal and he formed the opinion that the cause of death was asphyxia due to strangulation.
15.
PW5 was the Investigating Officer who took over form the initial Investigating Officer who is since deceased. He recounted the statement of the deceased investigating officer and produced the signal confirming the death of the said Investigating Officer. He also produced as P.Exh.3, a panga which was suspected to have been used in committing the offence as well as a photo of the scene.
16.
On cross-examination, PW5 said that there was no evidence from the autopsy that the deceased was assaulted nor was there any evidence as to who placed the rope/mosquito net on the neck of the deceased.
17.
At the close of the prosecution’s case, the court found that the Accused persons had a prima facie case and therefore placed them on their defence.
18.
At this point, the prosecution successfully sought to withdraw the charges against the 3rd Accused who had escaped from Juvenile Remand and had never been re-arrested. The case had proceeded in his absence and the court allowed the prosecution to withdraw its case against him and an amended Information was admitted and substituted with the earlier information. The remaining two Accused persons took a fresh plea and once more, pleaded not guilty.
19.
The Accused persons gave unsworn statements and did not call any evidence.
20.
The 1st Accused stated that on 25th August 2015, he was at home when he heard screams at around 8 p.m. He woke up and went to check and found the deceased screaming on the road near his house. Fedha Chisutia (PW4) who is the Assistant Chief also woke up and so did Omoyo Masafu (PW3). PW4 asked the deceased what was going on and the deceased complained that he had been provoked. PW4 advised the deceased to go home until the next morning wherefore he left for his home which was about 500 metres away. Everyone dispersed and the 1st Accused went to his house to sleep. The next day, he woke up to his normal duties only to be fetched from his house by the brothers to the deceased who informed him that the Chief was calling him. At the Assistant Chief’s office, he was arrested and taken to Malava Station where he was arrested and later charged.
21.
The 2nd Accused denies killing the deceased. His defence was similar to the 1st Accused’s and he basically reiterated what the 1st Accused said safe to add that after his arrest, he was kept in custody for 14 days during which he was tortured and forced to sign a document whose contents he did not know.","22.
For the offence of murder to be established beyond reasonable doubt, the key elements to be proven are as follows:-
a.
That the person alleged to be murdered is indeed dead.
b.
That the death was caused by an unlawful act or omission.
c.
That the Accused was responsible for the unlawful act or omission.
d.
That the Accused had the intent to cause the death or grievous harm of the deceased, or acted with reckless disregard for his life which is, malice aforethought – See Anthony Ndegwa Ngari v. Republic [2014] eKLR.
23.
There was sufficient evidence from the prosecution witnesses that the person named Charles Shitemu Juma had died. The death was confirmed by the Doctor who performed the autopsy and issued burial permit No. 784952. He confirmed that the person identified to him as Charles Shitemu Juma had died. It is therefore evident that the death of the deceased was not in doubt.
24.
On the second element that the cause of death was unlawful act or omission of the Accused persons, the prosecution sought to rely on the “last seen with” doctrine as enunciated in the case of Musimbi v. Republic [2023] KECA 287 (KLR) where the court stated:-
“
Regarding the “last seen with” doctrine, its applicability has been explained by various courts. For instance, in the Nigerian case of Moses Jua vs The State (2007) LPELR-CA/IL/42/2006 it was held as follows:
“
Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased.””
25.
The prosecution submitted that the Accused persons were last seen with the deceased at around 8.00 p.m. and they therefore bore the responsibility of explaining to the satisfaction of the court what happened to the deceased since the Accused persons had been seen assaulting the deceased and the deceased had complained that the Accused persons had assaulted him.
26.
On their part, the Accused persons submitted that the medical evidence was wanting as it said that there was no evidence that the deceased had suffered any bodily injuries inflicted by the Accused. The post mortem report stated that the deceased died of asphyxia and according to the Accused, no evidence was adduced to connect them to the rope that strangled the deceased to death.
27.
It cannot be gainsaid that the standard of proof in a criminal offence is “beyond reasonable doubt”, a phrase that signifies a high standard of proof that requires the prosecution to adduce compelling evidence that leaves no doubt in the mind of the court that the person accused of committing the offence did so.
28.
In the celebrated case of Woolmingthon v. DPP [1935] AC 462 pp 481, Viscount Lankey S.C. held as follows:
“
Throughout the web of the English Criminal law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether (the offence was committed by him), the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
29.
The evidence was that the deceased was found in his house dead on 26th August 2015. There was no evidence to suggest that the Accused persons had followed the deceased to his house the night before. Furthermore, the Doctor who performed the autopsy on the deceased testified and stated that on examination of the body of the deceased, he found a circular mark with indentation around the neck. This mark was definitely formed by the rope that was found tied around the deceased’s neck. The cause of death was confirmed by the Doctor to be respiratory failure secondary to asphyxiation. The only other injury on the deceased was noted to be superficial occipital wound that was not significant.
30.
By the end of their case, the prosecution had not produced any evidence that the death by asphyxiation or simply put, strangulation as suffered by the deceased, was caused by a third party. It may as well be that the deceased was the author of his own death. It is common knowledge that suicidal people hang themselves to death using all manner of ropes, including improvised ones.
31.
For the doctrine of “last seen with” to apply in respect to the Accused persons herein, it was imperative that evidence was led connecting the cause of death to the unlawful actions of the Accused persons against the deceased. It may be true that the Accused persons assaulted the deceased. However, the injury sustained by the deceased from the assault was said to be a superficial wound on the head. The said wound did not lead to the death of the deceased.
32.
No matter how much the prosecution wish the Accused persons to explain how the deceased met his death, it is my view that such an explanation would only be called for if the prosecution had demonstrated that the deceased’s death was caused by injuries to his body which would lead to the inevitable conjecture that since the deceased had been caught up in an altercation with the Accused persons and went away together on the material date at the request of the Assistant chief who asked them to report to him the next morning, then the Accused persons may have subsequently inflicted the fatal injuries on the deceased. However, the cause of death was something that is open to several possibilities, one of them being that the deceased could have committed suicide.
33.
The prosecution submitted that the Accused persons defence, which was through unsworn evidence, was the weakest form of defence. However, it must be noted that the prosecution’s case was weak at its best. Being based on circumstantial evidence, the prosecution’s case against the Accused persons should have been such that it unerringly pointed to the guilt of the Accused. The chain of circumstantial evidence was broken once the deceased and the Accused persons left the Assistant Chief’s place. No evidence was led to show that the Accused persons followed the deceased to his house which incidentally was a few meters from his parent’s house, and killed him then stage managed a suicide scene.
34.
In the end, I find that there was no evidence that the deceased’s death was caused by an unlawful act or omission. I also find that there was no evidence to conclusively connect the Accused persons to the death, lawful or unlawful.
35.
The upshot is that the prosecution failed to prove its case against the Accused persons beyond reasonable doubt and the Accused persons are therefore acquitted.
36.
The Accused persons shall forthwith be set free unless otherwise lawfully held.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4408/eng@2025-04-08
Criminal Case 2 of 2020,Republic v Ndwiki (Criminal Case 2 of 2020) [2025] KEHC 4632 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Kitui,High Court,LW Gitari,8 April 2025,2025.0,Kitui,Criminal,Republic v Musyoki Ndwiki,[2025] KEHC 4632 (KLR) ,,"1.
The accused is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. He denied the charge and the matter proceeded before Justice Limo who heard the evidence of Seven (7) witnesses. The prosecution closed its case and the accused was put on his defence. Unfortunately, Justice Limo was transferred from this court station and could not hear the defence case.
2.
The matter is to proceed in this court under the provisions of Section 200 of the Criminal Procedure Code Cap 75 of the Laws of Kenya. The accused thro’ his learned counsel has applied to recall PW1 and the Investigating Officer. The provisions of Section 200 Civil Procedure Code applies ‘Mutatis Mutandis’ to the proceedings in the High Court. Section 20(2) of the Criminal Procedure Code provides:
“","6.
The court is supposed to ensure that the right of the accused person to a fair trial is not violated. The court of Appeal in the case of Abdi Adan Mohamed -vs- Republic 2017 eKLR it was held:
“
Where in the language of Section 200(3) the accused demands that any witness be resummoned and re-heard, the demand must be subject to availability of witnesses sought to be resummoned and re-heard, the demand must be subject to availability of witnesses sought to be re-summoned. It of course will be impractical where it is demonstrated the witness sought be re-summoned is deceased, to insist on calling such a witness.
Similarly, if a witness cannot be traced and it is demonstrated to the satisfaction of the court that efforts to trace him have failed, the Magistrate or Judge may adopt and rely on evidence on record previously recorded by the out-going Magistrate or Judge. That is why in demanding the re-summoning of any witness must be done in good faith.”
7.
The court further went on to state that some of the considerations under Section 200 of the Criminal Procedure Code include whether it is convenient to commence the trial de novo how far has the trial reached, availability of witnesses, the time that had lapsed since the commencement of the trial and prejudice likely to be suffered by either the prosecution or the accused. See Joseph Kamau Gichuki -vs- R. C. Appeal No. 523 Polo cited in Nyabutu -vs- R (2009) KLR 409 where the court stressed that:
“
By dint of Section 200(1)(b) of the Criminal Procedure Code a succeeding Judge may act on the evidence recorded wholly by his predecessor. However, Section 200 aforesaid is a provision of the Law which is to be used sparingly and only in cases where the exigencies of the circumstances, not only are likely but will defeat the ends of justice if a succeeding Judge does not, or is not allowed to adopt and continue a criminal trial started by predecessor owing to the latter becoming unavailable to complete trial. See Ndegwa -vs- R 1985 KLR 535. In this case the trial Judge passed on after having fully recorded evidence form seven (7) witnesses and from the two appellants and hand in fact summed up to the assors. The trial moreover, was not short one which had taken over fie years to conclude. The passage of time militated against the trial being started de novo. Though the prosecution witnesses might have been available locally, re-hearing might have prejudiced the prosecution and possibly also, the appellant because of accountable loss of memory on the part of either the prosecution witnesses or the appellants. Musinga J in our view acted in an attempt to dispatch justice speedily and cannot be faulted because the law permitted him to do so. It cannot be lost in mind that public policy demands that justice be swiftly concluded.”
8.
It follows that the right of the accused to fair trial should be promoted and where the trial is to proceed before another Magistrate or Judge, the consideration is whether the attendance of the witness may be secured without an amount of delay or expense which would in all fairness be un reasonable. The court has to consider whether it will be possible to recall the witness by reason of unavailability, due to death or simply that he cannot be found or is incapable of giving evidence. The burden is on the prosecution to proof that it will not be possible to procure the attendance of the witness.
9.
In this case, there are seven witnesses who testified before Justice Limo. Though the accused had applied to have the case start de novo so that the judge can see them and assess their demeanor, he softened that stance when the prosecution stated that there is no guarantee that the witnesses will be traced. He now wants two witnesses to be recalled, that is PW1 and the investigating officer. The record shows that PW1 testified on 26/06/2023. The Investigating Officer PW7 testified on 23/7/2024. I find that the lapse of time since they testified is not too long. The Investigating Officer is a Police Officer who can be easily traced while Pw1 can be traced as her particulars are well known.
10.
The prosecution has not proved that the witnesses cannot be traced. In line with Court of Appeal decisions which I have cited, I should give the accused the right to have the two witnesses recalled for the purpose of further cross-examination by the defence. I allow the application to recall PW1 & PW7. Summons shall issue to the two witnesses and the matter shall be given a date for hearing.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4632/eng@2025-04-08
Criminal Case E030 of 2024,Republic v Odaha & another (Criminal Case E030 of 2024) [2025] KEHC 4454 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Siaya,High Court,DK Kemei,8 April 2025,2025.0,Siaya,Criminal,Republic v Peter Muhua Odaha & Leonard Ouma Obala,[2025] KEHC 4454 (KLR),,"1.
Both accused herein Peter Muhua Odaha and Leonard Ouma Ogola have been charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the 31st day of May, 2024 at Honge Beach Village in Usenge Sub-Location, Bondo Sub-County within Siaya County, jointly with others not before court murdered George Onyango Marango.
2.
The prosecution called nine (9) witnesses in support of its case. The prosecution’s case is that the deceased who had been a fisherman at Usenge Beach is reported to have disappeared. Apparently, the deceased had visited one of his customers whom he frequently supplied fish and whom he had a love affair with. PW1 who is a brother to the deceased went in search of him. He teamed up with other relatives (PW2, PW3) and went to Usenge Beach and met the deceased’s friend (PW4) and together they went to Usenge police station but were turned away. They went to the home of a certain lady PW6 who was claimed to have been the deceased’s friend and managed to recover the deceased’s pair of sandals and a black belt produced as exhibits by PW9. That they managed to get the area Clan Elder (2nd Accused herein) who informed them that the deceased had been killed because of having a love affair with PW6. That they later learnt that the deceased had been assaulted as soon as he left the home of PW6 by certain villagers who were relatives of the husband of PW6. That later, the body of the deceased which had decomposed was discovered by the 1st Accused who went to report at Usenge Police Station but who was locked in the cells. The scene was visited by PW9 and had the remains taken to the mortuary and later established that the deceased had had a love affair with PW6 and that the in-laws of PW6 were angry about it and attacked him. After the autopsy had been conducted, the two accused were thereafter charged with the offence.
3.
At this stage of the proceedings, the prosecution is under a duty to establish a prima facie case against the accused persons so as to be called upon to make a defence. A prima facie case is one in which a reasonable tribunal directing its mind to the law and evidence placed before it could convict an accused if no evidence to the contrary is offered by the defence. Se BHATT VS. R [1957] EA 334.","4.
After an analysis of the entire evidence at his stage of the proceedings, I find that the two accused persons were placed at the scene of crime and thus they must now offer an explanation as to how the deceased met his death.
5.
In view of the foregoing, I find that a prima facie case has been made out by the prosecution against both accused herein to require them to be placed on their defence. Consequently, I find each accused has case to answer and are now called upon to elect to make their defence in accordance with the provisions of Section 306 (2) of the Criminal Procedure Code.",Case to answer,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4454/eng@2025-04-08
Criminal Case 61 of 2019,Republic v Ogutu (Criminal Case 61 of 2019) [2025] KEHC 4447 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Kakamega,High Court,AC Bett,8 April 2025,2025.0,Kakamega,Criminal,Republic v Brasia Otieno Ogutu,[2025] KEHC 4447 (KLR),,"1.
The Accused Brasia Otieno Ogutu was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It was stated that on the 20th day of September 2019 at Lusheya Village, Lusheya Sub-location, Musanda Location in Mumias West Sub-County within Kakamega County, the Accused murdered Felix Omondi.
2.
The Accused, who was arrested on 20th September 2019 was arraigned in court on 8th October 2019 where the Deputy Registrar of the court noted that the medical report indicated that the Accused was unfit to take plea.
3.
After several appearances in court for Mention, the Accused was committed to Mathari Mental Hospital for treatment vide an order dated 22nd December 2019.
4.
Despite the order committing the Accused to Mathari Mental Hospital, the Accused was not committed as directed and on 18th October 2021, the Principal Secretary, State Department for Correctional Services invoked the powers vested upon him by Section 162 (5) of the Criminal Procedure Code and directed the Officer-in-Charge, Kakamega Prison to remove the Accused from Kakamega G.K. Prison and deliver him into the custody of the Chief Consultant Psychiatrist in-Charge Mathari Hospital, Nairobi for treatment.
5.
Further to the said directive, the court delivered a ruling on 15th March 2023 in which it made the following orders:-
“
(1)
The Officer in Charge Kakamega Main G.K. Prison shall personally ensure that the Accused, Brasia Otieno Oguti is transported from Kakamega Main G.K. Prison to Mathare Teaching and Referral Hospital in Nairobi.
(2)
As soon as the Accused arrives at Mathare Teaching and Referral Hospital, he shall be placed in the custody and care of the Chief Consultant Psychiatrist in Charge, Mathare Teaching and Referral Hospital (“hereinafter referred to as “the Hospital”).
3.
During his stay at the Hospital, the Accused shall be detained as a Criminal Mental Patient for treatment until further order. Such further orders may be made on the Application of the Accused, his family and/or next of kin, the Office of the Director of Public Prosecution and the Consultant Psychiatrist.”
6.
After the orders of the court, the Accused was committed to Mathari Mental Hospital under Section 162 of the Criminal Procedure Code where he underwent treatment and on 29th June 2022, the Medical Superintendent, Mathari National Teaching and Referral Hospital forwarded a certificate of capability to make defence under Section 163 (1) of the Criminal Procedure Code to the ODPP asking that the ODPP seeks directions on the matter.
7.
On 25th October 2022, the Accused was presented before the court which made an order that the Accused be taken to Kakamega County Referral Hospital for mental assessment to ascertain whether the Accused was mentally fit to take plea.
8.
Mental assessment was not undertaken until 18th July 2023 when the Psychiatrist Consultant, Kakamega County General Hospital did perform a mental assessment and filed a report in which she stated that in her opinion, the Accused was not fit to stand trial. She noted that the Accused had been re-initiated on medication. My conclusion is that the cause of the relapse in the Accused person’s mental condition was the failure to adhere to the prescribed ymedication.
9.
Faced with the dilemma of an Accused person who is mentally unstable, the prosecution on 31st October 2024 urged the court to invoke Section 162 of the Criminal Procedure Code in dealing with the Accused.
10.
In order to assist me make an appropriate determination, I called for a social inquiry report, which was prepared and filed on 14th January 2025.
11.
Although Mr. Munyendo for the Accused said that he would file written submissions to the prosecution’s application, he did not do so.
12.
Section 162 of the Criminal Procedure Code provides that:-
“
(1)
When in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness.
(2)
If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case.Powers delegated to the Cabinet Secretary and to the Principal Secretary of the Ministry for the time being responsible for prisons, by L.N. 579/1963.
(3)
If the case is one in which bail may be taken, the court may release the accused person on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person, and for his appearance before the court or such officer as the court may appoint in that behalf.
(4)
If the case is one in which bail may not be taken, or if sufficient security is not given, the court shall order that the accused be detained in safe custody in such place and manner as it may think fit, and shall transmit the court record or a certified copy thereof to the Cabinet Secretary for consideration by the President.
(5)
Upon consideration of the record the President may by order under his hand addressed to the court direct that the accused be detained in a mental hospital or other suitable place of custody, and the court shall issue a warrant in accordance with that order; and the warrant shall be sufficient authority for the detention of the accused until the President makes a further order in the matter or until the court which found him incapable of making his defence orders him to be brought before it again in the manner provided by sections 163 and 164.”
13.
The social inquiry established that the Accused’s family is prepared to embrace him and reintegrate him to the society. To that end, they have renovated his parent’s house. The family members expressed their commitment to ensure that the Accused adheres to his prescribed medication and attends regular clinic appointments. The Probation Officer who conducted the social inquiry opines that there appears to be a conducive environment to facilitate his rehabilitation and minimize the risk of re-offending.
14.
The victim’s family, though still grieving the loss of their loved one, are said to acknowledge the need for the Accused’s rehabilitation. The community is also willing to support the rehabilitation efforts and are not opposed to the Accused’s reintegration to the society albeit with some cautious reservations.
15.
Article 27 of the Constitution provides that:-
“
(1)
Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and fundamental freedoms.”
16.
Looking at the proceedings, the Accused has been in custody since 2019 yet he has never taken plea due to the finding that he is not mentally fit to plead. His right to a speedy trial as provided in Article 50 (1) (e) and his right to be released on bond as provided by Article 49 (1) (h) of the Constitution, have been breached by reason of the delay. To that extent, the right of the Accused to equal treatment has also not been observed. Be that as it may, it is evident that the procedure set out in Section 162 of the Criminal Procedure Code is aimed at protecting both the Accused and the public.","17.
I have considered the prosecution’s application while paying careful attention to the social inquiry report. I have also considered the fact that the Accused had undergone treatment at the Mathari Hospital and was considered to have recovered but on being transferred back to Kakamega, was found to have relapsed. It is common knowledge that persons with mental disabilities require constant clinical review and medication.
18.
Sadly, the County Assembly of Kakamega enacted a statute in the year 2024 that had the effect of denying all remandees and prisoners access to free medical treatment. The continued retention of the Accused in custody will therefore deny the Accused access to treatment for his condition which he would otherwise access for free if he was out on bond.
19.
While the court has the option of committing the Accused to Mathari Hospital for further treatment, I have perused the report by the National Council on Administration of Justice on the status of persons with mental illness which paints a sad picture of the state of the hospital which is suffering from inadequate and dilapidated infrastructure, serious congestion and inadequate modern medicine. In my view, the said hospital should be the last call for a person liked the Accused herein.
20.
Moreover, referring the Accused to Mathari Hospital may be a precursor to an endless cycle of referrals due to the high possibility of relapse as a result of inability to access medication. Such a move is likely to result in the Accused being held in custody for an extended indeterminate period and that would amount to subjecting the Accused to cruel, inhumane and degrading treatment contrary to Articles 25 and 29 of the Constitution.
21.
As observed earlier, the Accused should not be treated differently from the other persons who do not have mental disability.
22.
Having painstakingly considered the Accused persons’ condition and having determined that in his current mental state, he is of unsound mind and consequently incapable of taking plea or making any decision, I therefore postpone further proceedings herein as provided by Section 162 (2) of the Criminal Procedure Code.
23.
Pursuant to Section 162 (3) of the Criminal Procedure Code, I hereby admit the Accused to bail on the following terms and conditions:-
a.
That the Accused shall be released on a personal bond of Ksh. 300,000/= with one surety of similar amount.
b.
That the surety shall execute an undertaking to ensure that the Accused attends a Psychiatric Clinic monthly and that he strictly adheres with medical prescriptions until further orders of the court.
c.
That the surety shall produce the Accused, alongside evidence of monthly clinical attendance and review to this court every three (3) months until further orders of the court.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4447/eng@2025-04-08
Criminal Case E003 of 2025,Republic v Okoth alias Sisco alias Govins & 2 others (Criminal Case E003 of 2025) [2025] KEHC 4400 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Siaya,High Court,DK Kemei,8 April 2025,2025.0,Siaya,Criminal,Republic v Victor Ouma Okoth Alias Sisco Alias Govins & 2 others,[2025] KEHC 4400 (KLR),,"1.
Learned counsel for the 3rd accused herein Samuel Onyango Ongweso alias Ja Boda has sought for the release of the accused on bail pending trial on the ground that the offence is bailable under the Constitution and that the pre-bail report is favourable. Learned counsel added that the 3rd accused should be allowed to enjoy the presumption of innocence until proved guilty and that this court should reject the contents of the affidavit by the investigating officer and grant bail to the said 3rd accused.
2.
Learned counsels for the prosecution and family of the deceased have urged this court not to grant bond until all the witnesses have testified. They further urged the court to consider the averments in the affidavit of the investigating officer which reveals that the family of the deceased is apprehensive of their security and are still traumatized by the death of their kin. It was also urged that all accused should be treated equally on matters regarding bail.","2.
Learned counsels for the prosecution and family of the deceased have urged this court not to grant bond until all the witnesses have testified. They further urged the court to consider the averments in the affidavit of the investigating officer which reveals that the family of the deceased is apprehensive of their security and are still traumatized by the death of their kin. It was also urged that all accused should be treated equally on matters regarding bail.
3.
I have considered the submissions of learned counsels regarding the issue of whether the 3rd accused herein should be granted bail pending trial. There is an affidavit by the investigating officer filed on 24/3/2025 as well as a pre-bail report dated 21/3/2025.
4.
The pre-bail report dated 21/3/2025 indicates inter alia; that the widow of the deceased is apprehensive for the safety of her family as the accused is likely to intimidate the witnesses; that the local administration is of the view that his close association with criminal elements in the locality remains a great issue by many; that his abusive use of alcohol is a risk to his chances to compliance with bond terms; that the court can consider granting bond with surety.
5.
The investigating officer Joseph Owenga has filed an affidavit on 24/3/2025 wherein he has averred inter alia; that the 3rd accused is a flight risk going by the fact that he went into hiding until his arrest; that he is likely to interfere with witnesses some of whom are his relatives; that the release will disturb public peace and order and thus will affect the security of the area; that the release is likely to interfere with the integrity of the judicial process.
6.
Under Article 49(1) (h) of the Constitution, an accused person has a right to be released on bond pending a charge or trial unless there are compelling reasons by the prosecution not to be released. Once an accused person denies the charge, he is ipso facto deemed innocent until proved guilty and shall continue to enjoy the presumption of innocence until the contrary is proved. At this stage therefore, the 3rd accused is entitled to be released on bond pending trial unless there are compelling reasons to be furnished by the prosecution. Already, the pre- bail report and the affidavit by one of the investigating officers have been filed for consideration. Again, the pre-bail reports in respect of 1st and 2nd accused persons have proposed that bond terms be deferred until the witnesses have testified on the ground that witnesses who are from their neighbourhoods are likely to be interfered with and or intimidated.
7.
It is noted that the 3rd accused herein also hails from the same area just like the 1st and 2nd accused and that the witnesses talked of also come from the same locality. I find that the circumstances obtaining merit a denial of bond to the 3rd accused herein until the witnesses who hail from his locality have testified. Indeed, the pre-bail reports were made by the same probation officer and that the contents are similar regarding the circumstances obtaining on the ground regarding the three accused persons.
8.
Looking at the circumstances holistically, I am satisfied that sufficient reasons have been furnished by the prosecution which are compelling enough to justify denial of bond to the 3rd accused herein at this stage of the proceedings. The request for bond by the said 3rd accused is hereby declined and that the issue of bond be revisited once the key prosecution witnesses have testified.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4400/eng@2025-04-08
Criminal Case E042 of 2023,Republic v Owuor (Criminal Case E042 of 2023) [2025] KEHC 4399 (KLR) (8 April 2025) (Sentence),Sentence,High Court at Siaya,High Court,DK Kemei,8 April 2025,2025.0,Siaya,Criminal,Republic v Richard Otieno Owuor,[2025] KEHC 4399 (KLR),,"1.
The accused herein Richard Otieno Owuor has been charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Vide the judgment of this court dated 24/3/2025, the accused was found guilty of a lesser charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and convicted accordingly.
2.
Sentencing hearing took place on 7/4/2025. Mr. Mshindi, learned counsel for the defence submitted inter alia; that the accused is a first offender who prays for leniency; that the accused seeks for a non-custodial sentence so that he can join the community even though the said community is mad with him at the moment; that if the court considers a custodial sentence then the period spent in custody be factored.
3.
Mr. Mwangi learned counsel for the prosecution urged the court to consider the contents of the pre-sentence report.
4.
This court called for a pre-sentence report. The same is dated 4/4/2025. The report indicates inter alia; that the deceased who served as a bar attendant had disagreed with the accused herein and that the accused in anger left the bar went to his house, came back while armed and attacked the deceased; that the accused is not remorseful and still insists that he did not commit the offence; the family of the deceased is still bitter to the lose of their kin who was the bread winner; that community members are also still bitter with the actions of the accused and that they have vowed to deal with him accordingly if he is spotted around; the probation officer was of the view that the accused needs time to reflect on his life all over again and therefore a custodial rehabilitation is suitable.","5.
I have considered the mitigating submissions by both learned counsels for the parties herein. I have also considered the pre-sentence report filed by the probation department. Under Section 205 of the Penal Code, the maximum sentence for manslaughter is life imprisonment. However, following the decision of the Supreme Court in Francis Karioko Muruatetu & 2 Others (2017) eKLR, the mandatory nature of sentence was declared as unconstitutional and that the courts should receive mitigating circumstances from the offender before imposing an appropriate sentence thereafter. However, the court could as well impose the maximum sentence if circumstances warrant it.
6.
As regards the sentence to be imposed, the Court of Appeal in the case of Charo Ngumbao Gugudu Vs. R (2011) eKLR, held as follows:
“
Further, the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that it is thus not proper exercise for the court to fail to look at the facts and circumstances of the case in their entirety before settling for any given sentence. See Ambani Vs. R (1990) eKLR.”
It is noted from the autopsy report prepared by PW5 that the cause of death was obstructive/cardiogenic shock due to penetrating wound on the heart. The said pathologist went on to add that the deceased suffered a severe penetrating stub wound. From the injuries indicated on the autopsy report it is clear that the deceased died a painful death. The accused herein did not give the deceased a chance to survive due to the severe injuries inflicted. The accused should have resorted to other channels of redress. It has also transpired from the pre-sentence report that the accused is violent individual who has had a tumultuous marriage with his two wives one of whom deserted him prior to the incident while the second one left him after the incident. The report has also indicated that community members are still bitter over the incident and have vowed to deal with him if he ever sets foot there. This then calls for a custodial rehabilitation for the accused as the members of the community might lynch him if he shows around. The custodial rehabilitation will help to mould him into a better individual before being released back to the society.
7.
It is noted that the accused herein remained in custody throughout the trial. Any period spent in custody will be considered during the sentencing in line with the provisions of Section 333(2) of the Criminal Procedure Code.
8.
In the result, I order the accused herein Richard Otieno Owuor to serve a sentence of fifteen (15) years’ imprisonment which shall commence from the date of arrest namely 29/11/2023.",Sentenced,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4399/eng@2025-04-08
Miscellaneous Application E165 of 2024,Rotich v Obiri (Suing as the Legal Representatives of the Estate of Ambrose Magoma Nyachweya (Deceased)) (Miscellaneous Application E165 of 2024) [2025] KEHC 4618 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Nakuru,High Court,HI Ong'udi,8 April 2025,2025.0,Nakuru,Civil,Philip Kipkorir Rotich v Magdaline Moraa Obiri,[2025] KEHC 4618 (KLR),,"1.
This ruling is in respect of two applications. The first one is dated 18th May, 2024 while the second one is dated 16th September, 2024.
2.
In the application dated 18th May, 2024 the applicant prays for the following orders;
i. & ii
Spent.
iii.
That this honourable court pleased to enlarge time for lodging an appeal arising out of the ruling in Molo Chief Magistrate Civil Suit No. 78 of 2020 delivered on 9th May, 2024.
iv
That the draft Memorandum of Appeal dated 18th June, 2024 be deemed as duly and properly filed subject to payment of requisite fees.
v.
That this honourable court be pleased to grant an order of stay of execution and/or further execution of the Judgment dated 12th May, 2022 and the consequential decree and/or orders in Molo Chief Magistrate’s Court Civil Suit No 78 of 2020 pending the hearing and determination of the intended appeal.
vi.
That cost of this application be provided for.
3.
The application is based on the grounds on its face and the applicant’s affidavit sworn on even date. He deponed that being dissatisfied with the ruling delivered on 9th May, 2024 his advocates wrote a letter dated 13th May, 2024 requesting for a copy of the ruling and proceedings. The said letter did not elicit any response from the court until the 14th of June, 2024 when his advocates got a copy of the ruling. Further, that despite his advocates receiving a copy of the ruling after the required time lines of filing an appeal, they have drafted a draft memorandum of appeal. He urged the court to extend time within which the same could be filed to enable him prosecute an appeal against the aforementioned ruling.
4.
He further deponed that his advocates on record had learnt that the respondent was in the process of commencing full execution of the judgment and had sought for warrants of attachment to issue against him vide the letter dated 17th May, 2024.Thus, unless the court intervened and issued an order of stay of execution pending the intended appeal, the respondent would proceed with execution and the appeal would be rendered nugatory as the decretal amount would have been settled.
5.
In response to the said application the respondent filed a replying affidavit dated 20th September 2024. She averred that the applicant’s application was bad in law, made in bad faith, inept, lacked merit, an afterthought and otherwise amounts to an abuse of the court process. Further, that the applicant had not given any sufficient reason for failure to file the appeal within the required time to warrant granting of the orders sought. Furthermore, that the applicant had not provided any security. Thus, his application was aimed at delaying and frustrating her from enjoying the fruits of her judgment. She added that there was no sufficient reason given to warrant granting of the orders sought and she would be greatly prejudiced if the application herein is allowed as she was yet to enjoy the fruits of her judgment.
6.
The application dated 16th September 2024 and filed by the applicant and seeks the following orders;
i.
Spent.
ii.
That time within which to comply with the orders made by Justice Nyaga on 13th July 2024 be extended.
iii.
That this court be pleased to vary order Number 4 on the directions issued by Hon. Justice Nyaga Heston Mbogo on 13th July, 2024 and in its place direct that:
“There shall be a stay of further execution of the decree of the lower court on condition that the applicant deposits a security whose value is equivalent to the entire decretal sum in the lower court within 21 days from the date hereof. Evidence of such deposit to be provided.”
iv.
That directions numbers 1-3 to be preserved as they are.
v.
That the cost of this application be in the cause.
7.
The application is based on the grounds on its face and the applicant’s affidavit sworn on even date. He deponed that his application for stay of execution vide the notice of motion dated 18th May 2024 was allowed on condition that deposit the entire decretal sum to the lower court within 21 days from the date of the issue of the directions. That he was willing to comply with the conditional order for stay and had tried all that was humanly possible to raise the entire decretal sum but his efforts have not borne any fruits. He urged the court to vary the orders in place and to allow him deposit security in place of the decretal sum.
8.
In response to the said application the respondent filed a replying affidavit dated 10th October 2025. She averred that the application was bad in law, made in bad faith, inept, lacked merit, an after-thought, and otherwise amounted to an abuse of the court process. That the applicant had failed to satisfy the judgment delivered 12th May 2022 and instead filed an application dated 11th August 2023 seeking stay of execution and setting aside of the said judgment among other orders, which application was dismissed by the trial court vide its ruling on 9th May, 2024.
9.
She further averred that applicant filed an application dated 18th May, 2024 to this honourable court seeking stay of execution and leave to file an appeal on the court's ruling out of time. That the court issued stay of execution orders on condition that the applicant deposits the entire decretal sum in the lower court within 21 days from 13th July, 2024. Further, that the applicant had more than sufficient time to comply with the court’s directions but has deliberately failed to do so. In addition, that the applicant had not taken any steps towards complying with the court’s directions or presented any cogent reason for granting the orders sought.
10.
Both applications were canvassed by way of written submissions.","19.
I have considered the two applications together with the affidavits sworn in support, the replying affidavits and the submissions by the respective parties. The issue I find falling for determination is whether both applications or either of them is merited.
20.
I will first deal with the one dated 18th May 2024 which seeks for stay of execution orders and enlargement of time for lodging an appeal.
21.
Regarding stay of execution pending appeal, the guiding principles are well settled. The same are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:
No order for stay of execution shall be made under sub rule (1) unless—
(a)
the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)
such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
22.
In RWW vs. EKW [2019] eKLR, the court addressed the purpose of a stay of execution order pending appeal as follows;
The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay, however, must balance the interests of the appellant with those of the respondent.”
23.
From the law and the above decision, it is clear that the purpose of stay of execution is to preserve the substratum of a case pending the hearing and determination of an appeal. Further, a successful litigant has a right and expectation to enjoy the fruits of the decision rendered in his or her favour by the court, and a respondent who has lost a case also has a right of appeal to ventilate his or her displeasure with the said decision of the court. The court has a duty to weigh and balance both situations.
24.
This position was affirmed in the case of Regional Institute of Business Management v Lucas Ondong' Otieno [2020] eKLR where the court observed as follows;
“
20.
Weighing the Applicants' right to have his dispute determined fairly in a court of law or competent tribunal as provided in Article 50(1) of the Constitution of Kenya and the equally important Respondent's fundamental right that justice delayed is justice denied as stipulated in Article 159(2) (b) of the Constitution of Kenya, this court determined that there would be more injustice and prejudice to be suffered by the Applicants if they were denied an opportunity to ventilate their Appeal on merit in the event an order for stay of execution was not granted”.
25.
The application herein was filed on 27th June 2024 after delivery of the impugned ruling on 9th May 2024. There was a delay of approximately one and a half months in the filing of the application. The applicant did not explain the delay and/or proffer a reason why he failed to file the said application timeously. Notably, delay must not only be inordinate, it must also cause prejudice to the opposing party. In my humble view, the delay herein appeared not to be inordinate and it also did not cause the respondent to suffer prejudice or injustice.
26.
On substantial loss, the appellant/applicant argued that if the stay orders are not granted, the said appeal would be rendered nugatory. The respondent on her part argued that no sufficient reason had been given by the applicant to warrant granting of the orders sought. Further, that she would be greatly prejudiced if the application is allowed as she was yet to enjoy the fruits of her judgment.
27.
In the case of Silverstein vs. Chesoni [2002]1 KLR 867, the court observed that substantial loss was the cornerstone of both jurisdictions and the same had to be prevented by preserving the status quo because such loss would render the appeal nugatory.
28.
On security the applicant averred that he was willing to deposit security which whose value is equivalent to the decretal amount. In the directions issued by Justice Nyaga on 13th July 2023 the applicant was required to deposit the entire decretal amount in the lower court within twenty-one (21) days. However, out of the decretal sum which amounts to kshs. 1,000,000/= the applicant has deposited kshs. 300,000/=. He claims to be in a serious financial crisis and that he is undergoing dialysis. He did not produce any financial statements to prove the same but only a letter from the facility where he allegedly goes for dialysis.
29.
As earlier noted, the grant of stay of execution is discretionary and the court will exercise this discretion on a case by case basis depending on the circumstances of the case. This court has the duty to balance rights to ensure that justice is served
30.
The above being the position, I allow the prayer for stay of execution of the Ruling delivered on 9th May, 2024 on condition that the applicant prosecutes his appeal within twelve (12) months from the date of this ruling.
31.
Regarding extension of time to lodge the appeal, In County Executive of Kisumu vs. County Government of Kisumu & 8 Others [2017] eKLR, the Supreme Court expressed itself therein as follows:
“
It is trite law that in an application for extension, the whole period of delay should be declared and explained satisfactory to the court. Further, this Court has settled the principles that are to guide it in the exercise of its discretion to extend time. The court delineated the following as:
1.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
2.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3.
Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
4.
Whether there is reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
5.
Whether there will be any prejudice suffered by the respondent of the extension is granted;
6.
Whether the application has been brought without undue delay…”
32.
In view of the above exposition, it is clear that the factors to be taken into consideration when determining an application of this nature are namely; the length of the delay, reasons for the delay, possibility of the arguability of the intended appeal, prejudice to be suffered by the opposite party if the relief sought were granted, any public policy issues that may be involved and the right of access to appellate justice which the current jurisprudential trend crystalizing this position state explicitly that being constitutionally entrenched, it can only be denied in exceptional circumstances
33.
Looking at the first principle as stated above; the length of the delay, the application under consideration was presented one and half (1 ½) months from the date of the delivery of the impugned ruling. The applicant stated that the main reason for failure to timeously comply with the timelines set in the Rules is the delay in receiving a copy of the ruling and proceedings.
34.
I take judicial notice that at times there can be such delays occasioned to a party especially the proceedings due to the workload. I therefore decline to place that fault on the applicant especially when the period forming the length of delay is only one and a half (1½) months and therefore, not inordinate.
35.
Looking at the principle of the arguability of the intended appeal, the applicant has annexed a memorandum of appeal with a number of grounds of appeal. In Sammy Mwangi Kiriethe & 2 Others vs. Kenya Commercial Bank [2020] eKLR the court was of the view that an arguable appeal need not be one that must succeed, but one that not only warrants the court’s interrogation but also demonstrates sufficient basis for the court to invite the opposite party to make a response thereto. My opinion on the grounds of appeal the applicant intends to bring on appeal is that they are all arguable irrespective of their ultimate success or otherwise.
36.
On whether the respondent would suffer prejudice should the relief sought be granted, she argued saying that she would be greatly prejudiced if the application herein is allowed as she was yet to enjoy the fruits of her judgment. The applicant on the other hand contends that his intended appeal is arguable and would therefore be prejudiced if the same is not allowed.
37.
In my humble view, fairness and justice in the circumstances prevailing herein would demand that this court balances the interests of both parties. This principle was enunciated in the decision of the Court of Appeal in Absalom Dova vs. Tarbo Transporters [2013] eKLR, where it stated:
“
The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation…” (emphasis mine).
38.
The upshot is that the application dated 18th May 2024 is merited and the same is allowed in terms of prayers 3, 4 and 5 on the following terms:
i.
The Appeal to be prosecuted within 12 months from today’s date.
ii.
The deposit of Ksh 300,000/= to remain in place. However, the Applicant shall deposit before the trial court security for the balance of the decretal sum within 21 days.
39.
In consideration of the orders sought in the application dated 16th September, 2024, I find that the same have been subsumed in the findings in the application dated 18th May, 2024. The application is thus overtaken by events.
40.
Each party shall bear its own costs.
41.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4618/eng@2025-04-08
Civil Appeal E448 of 2024,Rurwan v Kinyua (Civil Appeal E448 of 2024) [2025] KEHC 4412 (KLR) (Civ) (8 April 2025) (Judgment),Judgment,High Court at Nairobi (Milimani Law Courts),High Court,LP Kassan,8 April 2025,2025.0,Nairobi,Civil,Jackson Lotik Rurwan v Wilson Kariuki Kinyua,[2025] KEHC 4412 (KLR),,"1.
This appeal emanates from the judgment delivered on 22/03/2024 by the lower Court in Nairobi Milimani CMCC No. E4276 of 2022 (hereafter the lower Court suit). The lower Court suit was instituted via a plaint by Jackson Lotik Rurwan, the plaintiff in the lower court (hereafter the Appellant) as against Wilson Kariuki Kinyua, the defendant in the lower court (hereinafter the Respondent). The Appellant’s claim was for damages founded on negligence as a result of a road traffic accident that occurred on 01/03/2022.
2.
It was averred that at all material times to the suit, the Respondent was the registered, beneficial, insured owner and or owner in possession of motor vehicle registration number KCG 020F (hereinafter suit motor vehicle) which was being driven by him, his authorized driver, servant and or agent. That on the date in question the Appellant was lawfully walking along Dr. Griffins Road when the Respondent’s driver managed, controlled and or drove the suit motor vehicle so carelessly and or negligently at a very high speed that he lost control causing the suit motor vehicle to veer off the road and collide onto the Appellant thereby causing him injuries, loss and damages. The doctrine of Res Ipsa Loquitor was equally relied on.
3.
The Respondent filed a statement of defence that was later amended denying the key averments in the plaint and liability. He went on to aver that in the alternative and without prejudice to the averments in the defence, that the any such occurrence of the accident as the Appellant may prove was caused and or substantially contributed to by the Appellant’s own negligence. The doctrine of Volenti Non-Fit Injuria was pleaded.
4.
The suit proceeded to full hearing, during which both parties called evidence in support of the averments in their respective pleadings. In its judgment, the trial Court failed to see how the Respondent was negligent or could be blamed for the accident and thus proceeded to dismiss the Appellant suit with costs.
5.
Aggrieved with the outcome, the Appellant preferred the instant appeal challenging the finding by the lower Court premised on the following grounds in his memorandum of appeal as itemized hereunder: -
1.
That the learned trial magistrate erred in law and fact in dismissing the suit even when liability has been proved as against the Respondent.
2.
That the learned trial magistrate misdirected herself in totality disregarding the plausible evidence by the Appellant in support of his case on the issue of negligence against the Respondent.
3.
That the learned trial magistrate erred in law and fact by considering only the evidence of the Respondent and his witness and disregarding the Appellant’s evidence and his witness.
4.
That the learned trial magistrate erred in fact and in law in failing to consider the Appellant’s submissions on liability by completely disregarding submissions and authorities of the Appellant and as a result rendered an unjustified decision on liability.
5.
That the trial Court erred in law and fact in finding that the Appellant’s case had not been proved on a balance of probabilities.
6.
That the learned magistrate grossly erred in her evaluation of the evidence before her.
7.
That the learned trial magistrate grossly erred in failing to find that the Respondent wholly or substantially contributed to the occurrence of the accident herein.
8.
That the trial Court manifested clear bias against the Appellant which was unfair and unjust.
9.
That the learned magistrate’s final orders have occasioned a miscarriage of justice. (sic)
6.
Both parties filed submissions.","To contextualize the latter, it would be apposite to quote in extenso the relevant facets of the impugned judgment. The trial Court after restating the evidence tendered before it addressed itself on liability as follows-;
“
5.
I have carefully considered the evidence tendered by the parties. I have read the submissions filed and the authorities cited and it is not in dispute that an accident occurred on the 1st of March 2022…involving the Plaintiff and Defendant who at the time was the registered owner of motor vehicle KCG 020F.
6
….
7
….
8
….
9.
In this case, the Plaintiff claims that he was hit off the road by Defendant. His witness, a police officer testified that as at the time the police abstract was being issued, the case was pending investigations. The Defendant on the other hand produced an investigation report which clearly indicates how the accident occurred and which corroborated the Defendant’s evidence.
10.
The accident occurred along Dr. Griffin Road which has three lanes. It is a dual carriage. The accident occurred on the inner lane as per the photographs produced by the Defendant. There is a foot bridge which is almost 10 meters from where the accident occurred.
11.
From the evidence given, I do not see how the Defendant was negligent or how he can be blamed for the accident. When Plaintiff knowingly faulted the traffic rules. This being the case, I do not find merit in the Plaintiff’s suit and is hereby dismissed with costs.
12
…...” (sic)
10.
The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. Equally, it is well trodden that the same is on a balance of probabilities meaning that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. See Court of Appeal decision in Mumbi M'Nabea v David M. Wachira [2016] eKLR. Hence, the duty of proving the averments contained in the plaint lay squarely on the Appellant vice versa with respect to the averments contained in the Respondent’s statement of defence. See Court of Appeal decision in Karugi & Another v Kabiya & 3 Others (1987) KLR 347.
11.
Further, this Court has continually observed that the mere occurrence of an accident, without more, cannot be proof of negligence. As the Court of Appeal stated in Eastern Produce (K) Ltd v Christopher Atiado Osiro [2006] eKLR, the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant [Emphasis mine]. The Court in that case cited the famous decision of Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2KAR 258 where the Court of Appeal, reiterating the foregoing by stated that:
“
There is, as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”
12.
In Gideon Ndungu Nguribu & Another v Michael Njagi Karimi [2017] eKLR the Court of Appeal stated that determination of liability in a road traffic case is not a scientific affair and proceeded to quote Lord Reid in Stapley vs Gypsum Mines Ltd (2) [1953] A.C. 663 at Pg. 681 as captured in Paragraph 8 of the impugned decision of the trial Court, therefore this Court will not restate verbatim the rendition of Lord Reid as captured therein.
13.
With the above wisdom in reserve, before the trial Court, PC Jesee Mwololo - No. 88537, testified as PW1. It was his evidence that he was attached to Pangani Police Station and that before the trial Court he had a police abstract dated 15/03/2023, which he adduced into evidence, relating to an accident that occurred on 01/03/2022 along Dr. Griffin Road between the Appellant and the suit motor vehicle. On cross examination he stated that the Police Abstract did not blame any party; that he did not have sketch plan of the scene of the accident; that he did not have the Occurrence Book (O.B) before Court; that he was familiar with road in question; that he did not know the exact point where the accident occurred; and that there was a foot bridge along the said road.
14.
The Appellant testified as PW2. He began by adopting his witness statement and adducing into evidence his list of documents as PExh.1-6. The gist of his witness statement captured that on the date in question he was lawfully walking along the road in question when the driver of the suit motor vehicle negligently drove the same at high speed occasioning it to lose control thus colliding with him. He emphasized at trial that the suit motor vehicle hit him while he was off the road. During cross-examination, he reiterated that he was off the road and that he was not hit while in the middle of the road. He further confirmed that the road had three lanes and had barriers on the road divider. On re-examination, he maintained that he was hit off the road.
15.
The Respondent testified as DW1. He too began by adopting his witness statement and adduced into evidence the documents appearing in the defendant list of documents as DExh.1 -6. It was his evidence that on that date in question he was driving on the inner lane along the said road towards the Karioko Intersection. He confirmed that the road had a barrier on the road divider and there being a foot bridge about 10 meters from where the Appellant was knocked. That he did not expect the Appellant to cross the road at that particular section given the forestated meanwhile despite applying emergency brakes or hooting it was too late. During cross-examination, he stated that the accident occurred at around 10pm and reiterated there being a foot bridge. That the Appellant was crossing from left to right and after the accident a report was done by investigators whom captured pictures of the scene of the accident. He asserted being attentive while driving and that he was not speeding. On re-examination, he iterated that he was driving on the inner most lane.
16.
Evidently, from the totality of the aforecaptioned, it can be concluded by PW1’s evidence, he did not witness the accident. Further, the Police Abstract which was adduced as PExh.6, he was neither the investigating officer nor did he adduce the sketch plan and Occurrence Book (O.B) before Court. Thus, he appears to have merely read into evidence the contents of PExh.6 confirming the occurrence of the accident. He did inveterate that the he was familiar with the road and that the same had a footbridge. It can thus be obstinately stated that his evidence aside from confirming occurrence of the accident and general lay out of the road was not instructive on liability.
17.
Both PW2’s and DW1’s evidence was at variance. With former insisting that he was hit off the road and the latter asserting that the former was hit on the road a few meters from a foot bridge. PW1’s evidence did not aid the PW2’s case on negligence meanwhile he confirmed the existence of a foot bridge along the said road. Aside from PW2 (the Appellant) and PW1, the Appellant did not call any other eye witness to shore up the particulars of negligence pleaded at paragraph 4 of his plaint, in order to infer culpability upon the Respondent. That said, DW1 aside from his oral evidence, relied on an investigation report adduced as DExh.6, which though was prepared after the fact was an attempt to shore up the particular of contributory negligence pleaded as against the Appellant at paragraph 6 of the amended statement of defence. The gist of DExh.6 contradicted the Appellant’s version of events, particularly relating to being hit off the road as in its analysis and deduction was that the Appellant was hit while crossing the road.
18.
The Appellant vide the grounds of appeal has made heavy weather of the fact that the trial Court only considered the Respondent’s evidence with exception to his evidence. The contestation cannot hold in light of the earlier excerpt capturing the trial Court’s analysis on the issue of liability. This Court concurs with the learned Magistrates observation that the accident occurred along the road in question which was a dual carriage highway possessed of a foot bridge. And it appears that Appellant rather than utilize the said footbridge opted to cross the road. However, it must be recollected that corollary to the above reasoning, at all material times onus was on the Appellant to prove his case on a balance of probabilities as against the Respondent in respect of the particulars of negligence pleaded in his plaint.
19.
At the risk of repetition, the Respondent had pleaded contributory negligence at paragraph 6 of his amended defence citing inter alia the Appellant’s failure to use the footbridge to cross the road and walking and or running across a busy super-highway. PW1’s corroborated DW1’s evidence that there was a footbridge along the road. Further, DExh.6. was adduced to shore up the Respondent’s assertions of contributory negligence. Palpably, as rightly observed by the trial Court, the Appellant evidence did not meet the muster as to how the Respondent could be blamed for the accident and given the Appellant’s deliberate negligence by failing to use a designated foot bridge on the said road. By willfully crossing the road in disregard of the latter, the Appellant voluntarily invited risk upon himself of which the Respondent would not have reasonably foreseen in the circumstance, given that the accident occurred at around 10pm whereas the road was a dual carriage highway.
20.
The Appellant questioned the reliance by the trial magistrate on the investigation report in his submission. First, it is clear that this report was produced as an exhibit. The report points out to three key issues as to wit- presence of a foot bridge near the scene of the accident and that the road was a dual carriage with three lanes separated by a barrier. This was corroborated by DW1 and the Plaintiff witness. From the Report, the Respondents Motor Vehicle was bordering the barrier such that to reach its side, a pedestrian had to cross two lanes from left to right. This therefore means that there was no chance of the Respondent (driver) to see a pedestrian who luckily eschews being knocked by vehicles cruising along the first and Second lane (on his left side). Were it that the Respondent was on the first lane, the Court could have taken notice of the fact that the driver could have spotted pedestrians breaching traffic rules by crossing three lanes highway since before crossing, the pedestrian is off the road but in this case the pedestrian was already on the road and perhaps on the run to escape being knocked by vehicles (if any) on the first and second lane. The Report specifies the exact location and if it was doubted, nothing prevented the Appellant from insisting on site visit or preparing another report.
21.
As regards the application of the doctrine of res ipsa loquitur, the Court of Appeal in Keziah & another (Personal Representatives of the late Isaac Macharia Mutunga) v Lochab Transport Limited [2022] KECA 477 (KLR), discussed in brief, its application. It observed in part that; -
“
The question that remains unanswered is who was then on the wrong, or caused and or contributed to the accident? The mere fact that an accident involving the two vehicles occurred does not per se translate into the respondent's driver being culpable. It was the duty of the appellants to call evidence to prove the particulars of negligence or any one of them that they attributed to the respondent's driver. We do not think just like the High Court that they discharged this burden.
22.
The Court proceeded to conclude that: -
“
………….. The police abstract on record showed that the accident was under investigation. The accident involved two motor vehicles and from the evidence adduced, there is nothing to show that the respondent was culpable. There cannot be an assumption of liability as the appellant failed to prove facts which give rise to what may be called the res ipsa loquitur situation or moment. In our view, the doctrine was inapplicable in the circumstances of the case and the High Court was right in so holding.”
23.
Similarly, in this case, beyond proof of the occurrence of the accident, the Appellant failed to prove facts which could give rise to or justify the invocation of the doctrine and or its application in order to attribute negligence as against the driver of the suit motor vehicle. The Court of Appeal decision in David Onchangu Orioki (Suing as personal representative of Anthony Nyabondo Onchangu (Deceased) v Ismael Nyasimi & Charles Michieka Nyoungo [2019] eKLR while discussing the applicability of the foregoing principles stated that;
“
Ordinarily, in a road traffic accident, a claimant must lead evidence to prove not only the occurrence of the accident but how it happened.”
24.
The same court equally stated that;-
“
……in a cause of action founded on negligence, there are two elements in the assessment of liability, namely causation and blameworthiness. See (Baker v Willoughby [1970] AC 467). “…….
25.
The trial Court while making a finding on liability correctly acknowledged that there is no evidence to suggest that the driver of the suit motor vehicle was to blame for the accident. In conclusion, this Court agrees that the Appellant failed to establish on a balance of probabilities that the Respondent was blameworthy and liable for the accident and this Court cannot fault the trial Court for arriving at the decision it did on liability. Under Section 107 of the Evidence Act, the burden of proof lay with the Appellant and if his evidence did not support the facts pleaded, he failed as the party with the burden of proof. See the case of Wareham t/a A.F. Wareham (supra). It would therefore be inconsequential to consider the question of awardable damages in light to the forestated finding on liability. Consequently, the appeal herein lacks merit and is dismissed with costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4412/eng@2025-04-08
Miscellaneous Application E273 of 2024,Rutto & another v Sego (Miscellaneous Application E273 of 2024) [2025] KEHC 4434 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Eldoret,High Court,E Ominde,8 April 2025,2025.0,Uasin Gishu,,Abraham Kiptum Rutto & Eldoret Shuttle Sacoo v Alias Frank Kiptoo Sego,[2025] KEHC 4434 (KLR) ,,"1.
By a Notice of Motion dated 18/10/2024, the Applicant seek the following orders:
1.
Spent.
2.
That he Honourable Court be pleased to extend time for lodging of a Memorandum of Appeal against the Judgment of the Hon. Peter Areri delivered on 25th June, 2024 in Eldoret CMCC E594 OF 2022 Francis Koima Sego Alias Frank Kiptoo Sego v Abraham Kiptum Rutto & Eldoret Shuttle Sacco.
3.
That the draft Memorandum of Appeal dated 18/07/2024 be deemed as properly filed.
4.
Spent.
5.
That pending the hearing and determination of the appeal herein, there be a stay of execution of the judgment made on 25/06/2024 in Eldoret CMCC E594 OF 2022 and of all subsequent orders entered against the appellant/applicant emanating therefrom.
6.
That pending the hearing and determination of the intended appeal the Applicant herein do avail security by way of Bank Guarantee from Family Bank for the whole judgment sum of Kshs.1,178,764/=.
7.
That the costs of the present Application be borne by both parties.
2.
The application is anchored on several grounds that are on the face of the application and the Supporting Affidavit of Erick Anyamba Mwale sworn on 18/10/2024.
3.
He deposed that Judgment was delivered in Eldoret CMCC E594 of 2022 on 25/06/2024 whereby the Respondent was awarded a net award of Kshs. 1,178,764/-, that being dissatisfied with the Judgment, he instructed his Advocates to institute an Appeal against the said judgment which they did by lodging a Memorandum of Appeal dated 18/07/2024 and that it was assessed and assigned assessment reference number E3H23A9L. He further deposed that his insurer, Ms Directline Assurance Co. Ltd was undergoing internal strife at management level which strife prompted the intervention and/or an audit by the Insurance Regulatory Authority hence there was difficulty in handling the approval, release and/or payments of any monies and/or smooth running of the company.
4.
He contended that after the Insurance Company sorted its management issues and monies were releases for purposes of filing the Appeal and the Application for stay and extension of time the Applicants’ Counsel's Law firm lost access, to their servers on 10/09/2024 thereby paralysing the running of the firm and that because the law firm is essentially paperless all its files and documents are in a virtual system. That as a result they were not in a position to prepare this instant Application in time. That the Applicants' law firm regained access to their servers on 14/10/2024 whereupon they prepared the instant Application seeking for extension of time to lodge the Appeal and stay of execution pending the hearing and determination of the Appeal and that the time period in which the Judgment dated 25/06/2024 can be appealed according to statute lapsed on 24/07/2024 hence the need to seek an extension of time within which to lodge the instant Appeal.
5.
He further deposed that since stay of execution has lapsed, the Applicants are apprehensive that the Respondent will move to execute the Judgment to the detriment of the Applicant. He maintained that the delay in filing this appeal was not deliberate as has been explained and that the 30 days stay of execution granted by the trial court has since lapsed and unless the stay of Execution herein sought is granted the Appellant/Applicant's Application and consequently the intended Appeal will be rendered nugatory and the Applicants will suffer irreparable loss and damage. He deposed that the Applicants are ready and willing, to either avail a bank Guarantee or Deposit the monies in a joint interest earning account as a condition for stay pending determination of the intended Appeal. That this Application is made in good faith and will not occasion any prejudice to the Respondent.
6.
The Application is opposed. The Respondent filed a Replying Affidavit dated 8/11/2024 wherein he deposed that the Application is an afterthought, lacks merit and thus ought to be dismissed with costs at first instance. That whereas it is true that judgment was delivered in Eldoret CMCC E594 of 2022 on 25/06/2024 in favour of the respondent and the court awarded him general damages of Kshs.1,178,764/=, the trial court granted the Applicants 30 days stay of execution on the same date of 25/06/2024, during the pendency of this Stay, the Applicants did not lodge their Memorandum of Appeal, contrary to provisions of the Civil Procedure Rules and that they have not attached any evidence to show that their accounts were closed and thus unable to pay filing fees for the appeal.
7.
Further, that as far as this case is concerned, Directline Assurance has been operating and there has been no moratorium and/or notice of receivership in place to indicate that it is no longer in business. That he instructed his advocate to apply for execution of decree in Eldoret CMCC E594 OF 2022 on 21st August 2024, close to four weeks after the stay of execution lapsed on 25/07/2024 and that if indeed the Applicants were serious about filing their appeal, they would have already lodged the same during the intervening period and before they applied to court for execution.
8.
The Respondent maintained that as the successful party in the case herein he is entitled to enjoy the fruits of his judgment and that with the above series of events, it is unfair to allow the Applicants to lodge their appeal out of time as they have not given plausible reasons. Further, that the deponent has not attached any evidence to prove that the proclaimed vehicle is his and/or registered in his name. That the delay in filing this application for extension of time is in any case inordinate and the Applicants have not given any reasonable explanations on delaying to file their appeal by 3 (three) months.","23.
I have considered the application, grounds in support thereof, the respondent’s replying affidavit, submissions by counsel and the applicable law. I have also considered the provisions of the law under which the Application is stated to have been brought. In my considered opinion, the issue for determination is
whether the Applicants have laid any basis upon which time to lodge an appeal can be extended and whether the Applicants have met the prerequisite for grant of stay of execution pending appeal;
24.
Section 79G of the Civil Procedure Act states:-
Every appeal from a subordinate Court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower Court may certify as having been requisite for the preparation and delivery of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the Court that he had good and sufficient cause for not filing the appeal in time.
25.
It is clear from the wording of section 79G of the Civil Procedure Act, that before the Court considers extension of time, the Applicant must satisfy the Court that she has good and sufficient cause for seeking extension of time. This principle was enunciated in the case of Diplack Kenya Limited v William Muthama Kitonyi [2018]eKLR. An Applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
26.
The threshold for the granting of leave to appeal out of time was set out in the case of Nicholas Kiptoo Salat v Independent Electoral and Boundaries Commission and 7 others (2014) eKLR where the Supreme Court held that:
“
… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.”
27.
The Supreme Court then went ahead to establish the following principles to guide the Courts when entertaining applications for extension of time:
a.
Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
b.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;
c.
Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d.
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
e.
Whether there will be any prejudice suffered by the respondent if the extension is granted;
f.
Whether the application has been brought without undue delay.
28.
It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules which stipulates that: -
“
No order for stay of execution shall be made under sub rule (1) unless—
(a)
the Court is satisfied that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)
such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.”
29.
From the foregoing, it is clear that an Applicant for stay of execution pending appeal must satisfy the above conditions namely, (a) that he will suffer substantial loss unless the order is granted, (b) the Application has been made without unreasonable delay, and (c) such security as the Court orders for the due performance of such decree or order as may ultimately be binding on the Applicant has been given.
30.
As to what encompasses “substantial loss”, I find the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR to be relevant and with regard to security for costs, the court relies on the decision in the case of Absalom Dova vs. Tarbo Transporters [2013] eKLR
31.
On arguability of the intended appeal, the Court herein is guided by the decision in the case of Athuman Nusura Juma Vs. Afwa Mohamed Ramadhan [2016] eKLR wherein the Court held as follows:
“
whether the intended appeal has merits or not is not an issue to be determined by a Court when dealing with an Application of this nature but by the Court dealing with the merits of the appeal, that is why the requirement that the intended appeal be arguable is preferred with the word “possibly”.
32.
All the above considered, I am satisfied that the explanation given by the applicant on the reasons for the delay in filing the Appeal after the same was assessed as herein above summarised has sufficiently explained the delay and which delay in light of these reasons I find was not inordinate for reasons that these circumstances were beyond the control of the applicants. I am also satisfied that the said application has been made without unreasonable delay and that if not granted, the Applicant stands to suffer substantial loss for reasons that the respondent has not in any way demonstrated that he will be able to pay back the decretal sum in the event the applicant is successful on appeal. I am therefore satisfied that the application has merit and the same is allowed as follows;
a.
That the time for the lodging of a Memorandum of Appeal against the Judgment of the Hon. Peter Areri delivered on 25th June, 2024 in Eldoret CMCC E594 OF 2022 Francis Koima Sego Alias Frank Kiptoo Sego v Abraham Kiptum Rutto & Eldoret Shuttle Sacco be and is now hereby granted.
b.
That the draft Memorandum of Appeal dated 18/07/2024 be and is now hereby deemed as properly filed.
c.
That pending the hearing and determination of the appeal herein, an order of stay of execution of the judgment made on 25/06/2024 in Eldoret CMCC E594 OF 2022 and of all subsequent orders entered against the appellant/applicant emanating therefrom be and is now hereby issued.
d.
That the applicant is to deposit the entire decretal amount in a joint interest earning account in the names of both Advocates for the parties within 45 days from the date of this judgement failure to which the orders of stay herein granted shall be deemed to have lapsed.
e.
That the Application is to bear the costs of the Application.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4434/eng@2025-04-08
Civil Appeal 75 of 2023,Sakwa v Aminga & another (Civil Appeal 75 of 2023) [2025] KEHC 4432 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Kitale,High Court,RK Limo,8 April 2025,2025.0,Trans-Nzoia,Civil,Justus Simiyu Sakwa v Malachi Oirigia Aminga & Tobias Muwanga Wafubwa,[2025] KEHC 4432 (KLR),,"1.
This is an appeal against the Ruling of Hon S.K. Mutai Senior Principal Magistrate delivered on 30/10/23 vide Kitale CMCC No.205 of 2017.
2.
The said Ruling was a subject of a preliminary objection dated 1/8/2023 raised by the appellant. The basis of the said preliminary objection was that the respondent’s suit was time barred by operation of Section 4(2) of the Limitations of Actions Act.
3.
The trial court entertained the preliminary objection which was canvassed by way of written submissions and found that the suit filed on 15/7/2021 was indeed filed out of time but found at the same time that the respondent had given plausible reason for filing the suit out of time. It also found that allowing the preliminary objection would shut the door of justice to the respondent leading to being condemned unheard, contrary to the rules of natural justice.
4.
The appellant felt aggrieved and filed this appeal raising the following grounds namely;
i.
The learned trial magistrate erred in law and facts in finding that the appellant will be condemned unheard contrary to the rules of natural justice if the preliminary objection dated 1/8/23 was allowed.
ii.
The learned magistrate erred in law in not finding that the suit was time barred.
iii.
That the learned magistrate erred by not finding that the suit was filed in abuse of due court process.
iv.
That the learned magistrate erred in law and fact in finding that the explanation given by the 1st respondent’s counsel was plausible.
v.
That the ruling delivered did not conform with the law and the same is not based on any provision of the law.
vi.
That the learned magistrate misconstrued the facts and law and arrived at a wrong conclusion.
5.
In his written submissions dated 19/3/2024 done through learned counsel M/s R.E Nyamu and Co Advocates the appellant insists that the 1st respondent”s suit by dint of Section 4(2) of Limitation of Actions Act was time barred. He submits the law stipulates that an action founded on tort may not be brought after the end of 3 years from the date on which the cause of action occurred.
6.
He points out that going by the plaint filed the accident occurred on 20/3/2024 and the suit was filed on 15/7/2017 which was more than 3 years after the accident occurred. He relies on the case of Bosire Ogero –vs- Royal Media Services (2015)eKLR where the court held that where an action is statute barred the court has no jurisdiction to entertain it.
7.
He faults the respondents for abuse of court process stating that apart from filing suit out of time, they took out summons which they never served.
8.
He faults the trial court for finding that the respondents had given plausible reason for filing suit out of time when the 1st respondent ought to have sought leave of court first to file suit out of time.
9.
The 1st respondent has opposed this appeal laying blame on counsel. He contends that his counsel sat on his case due to an oversight and led to the case being filed out of time.
10.
He submits that the provisions of Section 4(2) of Limitation of Actions Act are rules of procedure which in his view should not be elevated to defeat substantive justice. According to him Section 4(2) of the Limitation of Actions Act is a technicality.
11.
He pleads with this court not to allow this appeal arguing that he will suffer injustice yet he agreed by consent to set aside an exparte judgment in the lower court adding that the appellant would not suffer prejudice if the appeal is disallowed.","12.
This court has considered this appeal and the reasons advanced. I have considered the response made by the 1st respondent.
13.
The parties in this appeal are both in agreement that the suit filed in the lower court was filed out of time. The finding of the trial court in that regard was also of a similar view.
14.
The 1st respondent contends that the provisions of Section 4(2) of Limitations of Actions Act is a technicality which should not be elevated to defeat substantial justice but is it? Section 4(2) of Limitation of Actions Act provides as follows;
“
An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued”.
15.
When a statute stipulates a timeline upon which an action should be taken or filed, it is mandatory to comply with that timeline because compliance in that regard is crucial as it gives the court jurisdiction to entertain the matter. Where the statute gives a window of opportunity for a non-compliant party to seek for extension or enlargement of time as it is in this case, then that opportunity can be utilized. The provisions of Section 27 of Limitation of Actions Act gives a party liberty to apply for extension of limitation period and give good reasons why the court should exercise its discretion in his favour. Without enlargement of time, a suit filed out of time is incompetent and the court lacks jurisdiction to entertain it.
16.
In this instance the trial court appears to have fallen into error by finding that the 1st respondent had given plausible reason for filing suit out of time when the issue before it was whether or not the suit had been filed out of time. The trial erred by proceeding as though he was handling a matter for enlargement of time which issue was not relevant to the issue at hand.
17.
This court notes from the proceedings that the 1st respondent appears to have realized rather belatedly that he had made a big mistake because after the trial court had issued directions on how the preliminary objection was to be canvassed on 28/8/23 and fixed the case to be mentioned on 18/9/23 to find out if parties would have complied, the 1st respondent filed an application dated 8/9/23 for extension or enlargement of time to enable him file his suit out of time.
18.
When the matter came up for mention on 18/9/23, both parties confirmed filing of submissions on the preliminary objection and asked for a ruling date on the preliminary objection and the court gave a ruling date for 2/10/23.
19.
The 1st respondent tried later that afternoon to be heard first on his application for enlargement of time but the trial court overruled him and set a date for the ruling on the preliminary objection for 30/10/23. By declining the attempt by the 1st respondent to have his application for leave heard first, the trial court in effect sealed the fate of the first respondent because of the clear provisions of Section 4(2) of Limitation of Actions Act. The hands of the trial court were tied because what was before it was a suit filed out of time without leave. The suit was incompetent to that extent and it mattered not whether the 1st respondent had good explanation or what he termed “plausible” reasons for filing it out of time. The trial court would have been in order and well directed to make such a finding if it was entertaining an application for enlargement of time but he was not and that is where the misdirection lies. There was no competent suit to be entertained thereafter because the court did not enlarge time.
In the premises this court finds merit in this appeal. The ruling of the trial court delivered on 30/10/2023 flew in the face of the cited clear provisions of the law and must, which I hereby do set aside.
In its place the preliminary objection dated 1/8/23 is sustained. The result of this is that the 1st respondent’s suit filed vide Kitale CMCC NO.205 of 2017 is hereby struck out with costs for being incompetent. The 1st respondent ought to have sought leave of court for enlargement of time first before filing the suit out of time.",Struck Out,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4432/eng@2025-04-08
Judicial Review Application E034 of 2022,Sbi International Holdings (Kenya) v Director General Kenya National Highway Authority (Judicial Review Application E034 of 2022) [2025] KEHC 4514 (KLR) (Judicial Review) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,RE Aburili,8 April 2025,2025.0,Nairobi,Judicial Review,SBI International Holdings (Kenya) v The Director General Kenya National Highway Authority,[2025] KEHC 4514 (KLR) ,,"1.
This will be one of the shortest Ruling I have ever written on very long pleadings, affidavits and submissions both written and oral. The ruling determines the application dated 9/10/2023, supported by the affidavit of Gilad Mishni sworn on 9/10/2023, the supporting affidavit of Gilad Mishni sworn in support of the application dated 5/12/2024 and the further affidavit. The application is also supported by oral submissions.
2.
The applicant seeks to prosecute the application for contempt of court orders for mandamus issued against the respondents on account that the consent entered into on 19th December, 2023 that halted the hearing of the contempt application was violated. That the respondent had defaulted in settling the balance of the monthly instalments as ordered by the court in the consent.
3.
The respondents oppose the application vide their replying affidavit dated 18th December, 2023 deposing in contention that the application in the series matters was compromised by the consent of 19th December, 2023 which was filed immediately after the filing of the contempt application and the balance was to be settled in six monthly instalments.
4.
It was contended that s at that time, two billion was subject of the Kenya Revenue Agency Notice and a conservatory order in HC Misc Application No. E457 of 2022 between Kenya Revenue Authority and the Applicant herein. That therefore the 2 billion demanded by the applicant to be settled immediately was not part of the consent as it was not available at that time for disbursement.
5.
It was deposed that the six-monthly instalment was paid as per the consent hence there is no contempt and further, that there is no brazen disobedience of the consent order even on the 2 billion as the respondents had asked for additional funding of the said money from the exchequer through the State Department of Roads.
6.
In a rejoinder, the applicant’s counsel submitted that the respondents can still pay from the road levies or dispose of some of its property to settle the decree. That there was no commitment to settle the decree which denies the applicant justice","7.
I have considered the application and the opposition thereto as submitted orally. The issue is whether there is brazen violation of the order of mandamus and the consent dated 19th December, 2023.
8.
From my reading of the consent, which I did not have the privilege to record or adopt, as at the time of the consent of 19th December, 2023, part of the claim was subject of an agency notice by Kenya Revenue Authority who had filed proceedings in court to attach the said money being 2 billion as outstanding tax payable by the applicant. That money was not available but was nonetheless was subject of litigation. The consent does not disclose how much was the balance and or how much had been settled as at that time of recording the consent.
9.
It follows that although the decretal sum was known, with the agency notice by KRA still in force, the respondent could not have released to the applicant the amount which were not available and which were subject of the agency Notice. Even if the respondent was selling its assets, sale of assets takes time. additionally, there is no contrary evidence that the respondent was depending on the exchequer release. The burden of proof lies on he who alleges. There is no evidence that the respondents had sufficient funds in the Roads levy fund but had refused to utilize those funds to settle the decree.
10.
I therefore find that there was no violation of the terms of the consent which, in any event, did not state what the balance of the amount due was at that time, in view of the Agency notice by Kenya Revenue Authority.
11.
Accordingly, the resuscitation of the application for contempt against the respondent was premature.
12.
The prosecution of the application for contempt of court dated 9th October, 2023 is found to be premature and is hereby dismissed.
13.
Each party to bear their own costs of the application as the respondents have not settled the decree which they are legally bound to settle the remainder of the decretal sum which is colossal and which as at the time of the consent, was held in an agency notice and proceedings initiated by Kenya Revenue Authority vide HC Misc Application No. E457 of 2022.
14.
This ruling to apply to JR E035, E036, E037 and E038 of 2022 as agreed by the parties.
15.
Mention on 10th June, 2025 to confirm payment.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4514/eng@2025-04-08
Matrimonial Cause E070 of 2024,SEM v III (Matrimonial Cause E070 of 2024) [2025] KEHC 4503 (KLR) (Family) (8 April 2025) (Ruling),Ruling,High Court at Nairobi (Milimani Law Courts),High Court,H Namisi,8 April 2025,2025.0,Nairobi ,Family,SEM v III,[2025] KEHC 4503 (KLR),,"1.
Before the Court is Notice of Motion dated 10 October 2024 filed under sections 4 and 17 of the Matrimonial Property Act, 2013 and Article 159(2)(d) of The Constitution. The same seeks the following orders:
i.
(spent).
ii.
That this Honourable court be pleased to compel the Respondent to remit the monthly mortgage for the mortgage facility at the rate of Kshs. 93,664/= per month to Kenya Commercial Bank for Title No. Nairobi/Block 32/XXX, Ngumo pending hearing and determination of the application;
iii.
That this Honourable court be pleased to compel the Respondent to remit the monthly mortgage for the mortgage facility at the rate of Kshs. 93,664/= per month to Kenya Commercial Bank for Title No. Nairobi/Block 32/XXX, Ngumo pending hearing and determination of the suit;
iv.
That this Honourable court be pleased to compel the Respondent to remit the monthly mortgage for the mortgage facility at the rate of Kshs. 93,664/= per month to the Defendant or a joint account that can be remitting the payments to Kenya Commercial Bank pending hearing and determination of the application;
v.
That this Honourable court be pleased to compel the Respondent to remit the monthly mortgage for the mortgage facility at the rate of Kshs. 93,664/= per month to the Defendant or a joint account that can be remitting the payments to Kenya Commercial Bank pending hearing and determination of the suit;
vi.
That this Honourable court be pleased to compel the Respondent to remit the monthly mortgage for the mortgage facility at the rate of Kshs. 46,832/= per month to the Defendant for remittance of payments to Kenya Commercial Bank pending hearing and determination of the application;
vii.
That the cost of the application be in the cause.
2.
The Application is premised on the grounds on the face thereof and supported by the Affidavit sworn by the Applicant. The Applicant averred that he and the Respondent contracted a Christian marriage on 28 November 2014 and were blessed with 2 children. Due to the irreversible breakdown of their marriage, the same was dissolved and a Decree Absolute issued on 16 August 2021.
3.
During their marriage, the Applicant, secured a mortgage facility to purchase Title Number Nairobi Block 32/XXX, Ngumo under the Civil Servants Housing Scheme by Kenya Commercial Bank. The property was registered in joint names of the Applicant and Respondent. The Respondent issued a Personal Deed of Guarantee and Indemnity of Kshs 13,050,000/=.
4.
The Applicant pleaded that both he and the Respondent were in formal employment during their marriage and were capable of providing for and contributing to the wellbeing and welfare of their family. The Applicant undertook the monthly repayments of the mortgage, at the rate of Kshs 93,664/= from 23 January 2017.
5.
The Applicant averred that he had since left the property, which is occupied by the Respondent and their two children. That notwithstanding, the Applicant continues to make the mortgage repayments to date. Additionally, the Applicant shoulders some of the responsibility of providing for the children, including but not limited to, paying school fees and school-related expenses. The children visit the Applicant every weekend at his current residence, where the Applicant pays rent of Kshs 70,000/- monthly.
6.
The Applicant averred that on various occasions he has requested the Respondent to take part in the payment of the mortgage but the same has become a bone of contention for both parties without any resolution in sight. Due to the default in payment, the Applicant now has a bad credit report. The Applicant averred that he has even gone to an extent of requesting the Respondent to consider selling the house by way of private treaty in order settle the mortgage and the Respondent to find alternative accommodation, but the Respondent has declined. The Applicant averred that his payslip is over burdened and it has become apparent that he cannot service the mortgage, pay his own rent and cater for his daily needs while the Respondent continues to enjoy the property without any form of contribution.
7.
It is the Applicant’s contention that the liability of the mortgage repayments ought to be shared by both parties. He pleaded that he is not interested in the division of the said property and wished to transfer the same to the Respondent. Therefore, it follows that the liability must be transferred to the Respondent as he will not have any legal interest over the property.
8.
In response to the Application, the Respondent filed a Replying Affidavit as well as the following Grounds of Opposition:
i.
That the Application as drawn and taken out is misconceived, bad in law and is devoid of merit as it is based on speculations bereft of any supporting evidence to warrant the grant of the Orders sought as against the Respondent;
ii.
That the Orders sought in the Application are misconceived, vexatious and not anchored in any law as Sections 1, 2 and 3 of the Civil Procedure Act relied on by the Applicant as read together with Order 40 Rules 1, 2, and 3 of the Civil Procedure Rules and Sections 4, 6, 10 and 17 of the Matrimonial Property Act do not in any way envisage a scenario where this Honourable Court can compel the Respondent to undertake the fulfilment of any liability incurred by the Applicant prior to, during the subsistence of or even after marriage. Any liability incurred in this regard remains the sole responsibility of the spouse who incurred it and has to be treated as such;
iii.
That in any event, a mortgage is a contract between a mortgagee and a mortgagor. The Respondent, being a third party, is not privy to such a contract and cannot therefore be compelled to meet the liability incurred by the Applicant;
iv.
That be that as it may, the doctrine of legitimate expectation clearly stipulates that the Respondent legitimately expects the Applicant to meet his liabilities without necessarily and unjustifiably shifting the burden to the Respondent.
v.
That in the upshot, the Respondent prays that the instant Application be dismissed with costs to her for being incurably bad in law, ill-conceived, vexatious, scandalous, and for abusing this Honourable Court's processes
9.
In her Replying Affidavit, the Respondent termed the Application as an illegal, irregular and unjustifiable attempt by the Applicant to compel her to take responsibility for the liability incurred by the Applicant. The Respondent averred that the mortgage facility was secured by the Applicant solely and her only involvement was in consenting to the creation of the charge since the property is registered in joint names. The Applicant argued that although she was in formal employment at the time when the Applicant secured the mortgage facility, does not mean that she should be compelled to incur the liability of repayment. Furthermore, the Applicant has parental responsibility obligations to meet and the present applicant is a guise for the Applicant to abdicate his parental responsibilities.
10.
It was the Respondent’s contention that the law does not in any way envisage a scenario where the Court can compel the Respondent to undertake the fulfilment of any liability incurred by the Applicant prior to, during the subsistence of or even after marriage. The Respondent pleaded that any liability incurred in this regard remains the sole responsibility of the spouse who incurred it and shall be treated as such and that the Court cannot be used as a venue to enable abdication of liability and responsibility.
11.
The Applicant filed a Further Affidavit refuting the Respondent’s averments.
12.
Parties were directed to file written submissions. The Applicant filed his submissions while the Respondent indicated that they would rely on their Replying Affidavit and Grounds of Opposition.","13.
I have keenly read the Application, Affidavits and submissions filed herein.
14.
First and foremost, it is not in dispute that the property was acquired during the subsistence of the marriage between the parties and is registered in their joint names. It is also not disputed that the Respondent resides on the said property with the children, while the Applicant resides elsewhere. It is not disputed that the Applicant continues to pay Kshs. 93,664/= per month towards the mortgage repayment.
15.
That being said, the only issue for determination by this Court at this juncture is whether the Applicant is deserving of the orders sought and the Respondent ought to be compelled to participate in the mortgage repayments.
16.
It is common ground that the Applicant approached the Bank and secured a mortgage facility for purchase of the suit property, which property was subsequently registered in the names of the Applicant and Respondent. Both parties resided on the suit property, with their children, until the point when the Applicant left. A charge was registered over the property, with the consent of the Respondent. The Applicant has been making the mortgage repayments to date.
17.
The Applicant pleaded that he is unable to continue servicing the monthly repayments for the loan due to financial constraints. In addition to the mortgage repayments, the Applicant has to pay school fees and other expenses relating to the children, as well his own rent. It is his prayer that the Respondent, who now occupies the property, should be the one compelled to service the loan repayments. The Respondent has neither denied the monthly mortgage repayments made by the Applicant nor the expenses towards the upkeep of their children.
18.
The fact of the matter is that the Applicant is currently repaying a loan on a property from which he no longer derives any real benefit. Instead, it is the Respondent who is in occupation and who derives benefit from the same.
19.
Article 45(3) of the Constitution of Kenya, 2010 provides that:
“
Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage""
20.
In interpreting Article 45(3) the Court of Appeal in the case in Agnes Nanjala v Jacob Petrus Nicolas Vander Goes [2011]eKLR, held as follows:-
“
This Article clearly gives both parties to a marriage equal rights before, during and after the marriage ends. It arguably extends to matrimonial property and is a Constitutional statement of the principle that matrimonial property is shared 50%, 50% in the event that the marriage ends.”
21.
On the issue of spousal liability, section 10(3) of the Matrimonial Property Act provides thus:
Parties to a marriage shall share equally any—
(a)
liability incurred during the subsistence of the marriage for the benefit of the marriage; or
(b)
reasonable and justifiable expense incurred for the benefit of the marriage.
22.
Faced with similar facts, in the case of MWG v DGW [2021] eKLR, the Court held as follows:
“
The suit property had been utilized on the matrimonial home before the parties herein divorced. The Applicant has now left the home. It cannot be fair that she continue to shoulder the burden of meeting the entire loan repayment. The property is registered in the joint names of the Applicant and the Respondent. In the circumstances it is only fair and just that pending the final determination of this Originating Summons, the parties should equally bear the burden of meeting the loan repayments.”
23.
I hold a similar view to that expressed in the case cited hereinabove. There is no reason why the Applicant should be saddled with the mortgage repayments, yet both parties enjoy equal rights before, during and after the marriage. Further, the Applicant has clearly indicated that he has no interest in the property.
24.
Accordingly, I allow the Application dated 10 October 2024 and make the following orders:
i. That the Applicant and Respondent be equally liable on 50:50 basis for any outstanding arrears on the mortgage facility from Kenya Commercial Bank in respect of the property known as Title No. Nairobi/Block 32/873, Ngumo;
ii. Pending the hearing and determination of the Originating Summons herein, the Respondent, who is the current occupant of Title No. Nairobi/Block 32/873, Ngumo is directed to meet half (50%) of the loan repayments as demanded by Kenya Commercial Bank in respect of the said property;
iii. There will be no orders as to costs.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4503/eng@2025-04-08
Miscellaneous Civil Application E003 of 2025,Shwashwaa v Kibumba (Miscellaneous Civil Application E003 of 2025) [2025] KEHC 4588 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Voi,High Court,AN Ongeri,8 April 2025,2025.0,Taita Taveta,Civil,Hilton Mwakio Shwashwaa v Atanus Kilenge Kibumba,[2025] KEHC 4588 (KLR) ,,"
1.
The application coming up for consideration in this Ruling is dated 30th January 2025 brought under Section 1A, 1B and 3A and 18(1)(b) of the Civil Procedure Act Cap 21 Laws of Kenya and Order 51 of the Civil Procedure Rules, 2010 Articles 159 of the Constitution of Kenya and all enabling provisions of the Law seeking the following orders:-
i.
That this application be certified urgent and service thereof be dispensed within the first instance.
ii.
That this Honourable Court be pleased to transfer Voi SCCC No. E010 of 2024 (Hilton Mwakio Shwashwaa =versus= Atanus Kilenge) from the Small Claims Court at Voi to Voi Magistrate’s Court.
iii.
That the Applicant be granted leave to restate the claim upon transfer of the suit before the Voi Magistrate’s Court.
iv.
That the costs of this application be provided for.
2.
The application is based on the following grounds:-
i.
That on 23rd January 2025 the Applicant was granted leave by the Small Claims Court to file a medical report.
ii.
That the medical report provided that the Applicant had incurred compound multiple fractures.
iii.
That when the matter came up before Hon. Stephen Musili on 30th January 2025 the court noted that due to the injuries stated on the report it will be prudent for parties to apply in the High Court to have the matter transferred to a court equipped with the proper jurisdiction to hear the matter.
iv.
That this Honourable Court has powers to have the matter transferred to a court equipped with the proper jurisdiction to hear and determine the matter.
v.
That no prejudice will be occasioned to the Respondent by the said transfer.
vi.
That it is in the interest of justice that this matter be transferred to Magistrates Court at Voi for it to be heard and determined.
3.
The application is supported by the affidavit of Walegwa Mwasawa in which he deponed as follows:-
i.
That I am and Advocate of the High Court of Kenya, practicing as such in the firm of Rajab & Mbogo Advocates and I have conduct of this matter on behalf of the Applicant;
ii.
That the Applicant herein has filed the suit SCCC E010 of 2024 (Hilton Mwakio Shwashwaa Vs Atanus Kilenge before the Voi Small Claims Court.
iii.
That on 23rd January, 2025 the matter came up before the Small Claims Court and the Applicant herein was granted leave to file a medical report as the Honourable Court's records will show and support.
iv.
That upon receipt and perusal of the medical report from Dr. Hanif the report stated that the Applicant had incurred compound multiple fractures..
v.
That consequently when the matter came up on 30th January 2025 before Hon. Stephen Musili, the court directed that noting the findings on the medical report, parties to apply in the High Court to have the matter transferred to a court equipped with the proper jurisdiction to hear the matter;
vi.
That this H.o. nourable Court has powers to have the matter transferred to a court equipped with the proper jurisdiction to hear and determine the matter;
vii.
That once the matter is transferred there is a need for the Applicant to restate the claim as the pleadings in. the Small Claims Court are different than those of the Magistrates Courts;
viii.
That no prejudice will be occasioned to the Respondent by the said transfer.
ix.
That I pray that this Honourable Court do make an order to transfer the proceedings in Voi SCCC E010 of 2024 (hilton Mwakio Shwashwaa Vs Atanus Kilenge from the Small Claims Court at Voi to Voi Magistrates law Courts.
x.
That it is in the interest of justice that this matter be transferred to Vol Magistrates Law Courts, for it to be heard and determined.
xi.
That the Applicant undertakes to expeditiously prosecute the claim in a timely manner, so as not to prejudice the Respondent;
xii.
That unless the orders sought are granted, the Applicant stands to suffer irreparable damage;
xiii.
That there has been no delay in bringing this application;
xiv.
That no prejudice will be suffered by the Respondent if this application is allowed;
4.
The Respondent filed grounds of opposition as follows:-
i.
That the Applicant expressly admits that the suit was filed in a court without jurisdiction hence in law there exists no suit worthy transfer to another court with jurisdiction.
ii.
That a null and void suit is dead and does not in law exist and as such it cannot be breathed life and/or cured by being taken from one court to another as this Honourable Court is being asked to do.
iii.
That the only available option to the Applicant is to withdraw the suit altogether and file the suit afresh in the competent court of law.
iv.
That the only other available option is for the court to have the suit dismissed for want of the jurisdiction.
v.
That the application is bad in law and fatally defective and is a clear case of the abuse of the process of the court.
vi.
That the application should be dismissed with costs.
5.
The parties filed written submissions which I have duly considered.","6.
The sole issue for determination is whether this suit should be transferred to Voi Magistrate’s Courts for hearing.
7.
I find that the application to transfer the case to the magistrate’s court for reasons that it is beyond the pecuniary jurisdiction of the SCC is a procedural issue and no prejudice will be suffered by the respondent.
8.
In the case of John Mwangi Karanja v Alfred Ndiangui [2011] eKLR, the Court held as follows;
“
With the enactment of sections 1A and 1B of the Civil Procedure Act, the time has perhaps now come for this matter of transfer of suits to be looked at afresh...It appears to me that transfer of suits from one court to another is essentially a procedural issue that has been elevated to the status of jurisdiction. If a suit finds itself in the wrong court, surely it is in the interests of justice and in the interests of all concerned that the suit be forwarded to the appropriate court with jurisdiction so that the issues in dispute can be properly and finally adjudicated. What prejudice would an party suffer in that invent? After all, the overriding objective of the Civil Procedure Act and Rules is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act (section 1A(1).The court itself is enjoined by subsection (2) of that section to seek to give effect to the said overriding objective in exercise of its powers under the Act or the interpretation of any of its provisions.”
9.
The Application dated 30th January 2025 is accordingly allowed. Each party to bear its own costs of the application.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4588/eng@2025-04-08
Civil Appeal E279 of 2023,Sujal Construction Ltd v Medicross Kenya Ltd (Civil Appeal E279 of 2023) [2025] KEHC 4478 (KLR) (Civ) (8 April 2025) (Judgment),Judgement,High Court at Nairobi (Milimani Law Courts),High Court,LP Kassan,8 April 2025,2025.0,Nairobi,Civil,Sujal Construction LTD v Medicross Kenya LTD,[2025] KEHC 4478 (KLR) ,,"1.
This appeal emanates from the ruling delivered on 09/03/2023 by the lower Court in Nairobi Milimani CMCC No. 1065 OF 2018 (hereafter the lower Court suit). The germane history of the matter leading to the instant appeal is that Sujal Construction Ltd, (hereinafter the Appellant), the plaintiff before the lower Court, initiated suit by way of plaint as against Medicross Kenya Ltd, (hereinafter the Respondent), the defendant before the lower Court seeking inter alia special damages in the sum of Kshs.1,636,260/-, costs of the suit and interest on the former at Court’s rate from date of filing suit until judgment.
2.
Pursuant to an order of lower Court, the Respondent filed a defence denying the key averments in the plaint meanwhile contemporaneously filed a counter-claim seeking inter alia that the Appellant was in breach of contract, damages for breach of contract, set-off of Kshs. 650,000/- and costs of the suit and counterclaim.
3.
On 17/08/2020, the suit came up for hearing before the trial Court however given the absence of the Appellant and or its counsel duly on record, the Court proceeded to dismiss the suit for want of prosecution.
4.
The latter thus prompted the Appellant to move the lower Court vide a motion dated 20/12/2021 expressed to the brought among others pursuant to Section 1A, 1B, 3A & 63(e) of the Civil Procedure Act (CPA), Order 9 Rule 9 and Order 12 Rule 7 of the Civil Procedure Rules (CPR) seeking inter alia that the honorable Court be pleased to set aside its orders dated 17/08/2020 dismissing the suit and to reinstate the same for hearing and final determination. The grounds on the face of the motion were amplified in the supporting affidavit sworn by Irene N. Shikuku, whose gist was that the suit was fixed for hearing on 17/11/2020 and service of the notice duly effected on the Respondent advocate. However, on the latter date the suit did not proceed as the matter was not listed in the days causelist. That on 11/08/2021 the Appellant’s advocate drew a notice of change of advocates and concurrently sought a mention date for purposes of fixing a hearing date.
5.
It was further deposed that efforts to procure a mention date for the suit was unsuccessful and a follow up with the lower Court registry on the issue of retrieval, was met with a response that file could not be traced. She goes on to depose that the Appellant’s request to have the matter mapped on the Case Tracking System (CTS) took time however the same was only managed on November, 2021, to wit, it was discovered that the suit had come up for hearing on 17/08/2020 and was dismissed for want of prosecution. She deposes that it was an honest belief that the hearing of the matter was mis-diarized as 17/11/2020 instead of 17/08/2020 hence failure by the Appellant’s advocate to attend Court on the latter date. That failure to attend Court was inadvertent whereas the Appellant has always been willing and ready to prosecute its case to its logical conclusion. She concluded by stating that the motion has been filed without unreasonable delay whereas any prejudice to the Respondent may be compensated by way of costs.
6.
In retort the Respondent filed grounds of opposition whose essence was that the Appellant had failed to demonstrate that it had approached the Court at the earliest opportunity with a request for reinstatement; that the Appellant’s inaction made it guilty of laches; that the Appellant had failed to provide sufficient reasons to have the decision dismissing the suit for want of prosecution set aside; and that it was in the interest of justice that the trial Court dismisses the motion with costs.
7.
The Appellant’s motion was disposed of by way of written submissions. By way of a ruling delivered on 09/03/2023, the trial Court found the Appellant’s motion lacking in merit and proceeded to dismiss the same with costs.
8.
Aggrieved with the outcome, the Appellant preferred the instant appeal challenging the finding by the lower Court premised on the following grounds in its memorandum of appeal as itemized hereunder: -
1.
The Learned Trial Magistrate erred in law and in fact in failing to consider the Appellant’s Advocates’ reason for non-attendance on the date the suit was dismissed and therefore arrived at a wrong decision in law in dismissing the Appellant’s Application dated 21st December 2021.
2.
The Learned Trial Magistrate erred in law and in fact in failing to consider that the Appellant’s advocates have actively sought to prosecute the suit in the subordinate court.
3.
The Learned Trial Magistrate erred in law and in fact in failing to consider the Appellant’s explanation for the delay in filing the Application dated 21st December 2021 hence arriving at a finding that was against the weight of the evidence.
4.
The Learned Trial Magistrate erred in law and in fact in finding that the fact that the Respondent was in court on the hearing date cannot excuse the Appellant’s absence.
5.
The Learned Magistrate erred in law in failing to consider and apply the express provisions of Sections 1A, 1B, and 3A of the Civil Procedure Act and Articles 50(1) and 159(2)(d) of the Constitution of Kenya.
6.
That the Learned Trial Magistrate erred in law in failing to exercise his discretion to avoid occasioning injustice to the Appellant due to an inadvertent or excusable mistake or error on the part of the Appellant’s Advocates.
7.
The Learned Trial Magistrate erred in fact and in law in failing to consider the triable issues raised by the Appellant, which merited a full hearing and determination of the Appellant’s case.
8.
The Learned Trial Magistrate erred in law by awarding costs to the Respondent herein.” (sic)
9.
Before this Court, directions were taken on disposal of the appeal by way of written submissions of which this Court has duly considered alongside the record of appeal, the pleadings before the lower Court as well as the submissions by the respective parties. The duty of this Court as a first appellate Court is to re-evaluate the evidence adduced in the lower Court and to draw its own conclusions, but always bearing in mind that it did not have an opportunity to see or hear the witnesses testify. See Kenya Ports Authority v Kusthon (Kenya) Limited (2000) 2EA 212, Peters v Sunday Post Ltd (1958) EA 424; Selle and Anor. v Associated Motor Boat Co. Ltd and Others (1968) EA 123 and Abok, James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR.
10.
The Appellant’s motion before the lower Court was expressed to be brought inter alia pursuant to Section 3A of the CPA and Order 12 Rule 7 of the CPR. The trial Court in dismissing the Appellant’s motion stated inter alia that-:
“
I have considered the application, the grounds of opposition and the rival submissions. If the hearing date of 17th August 2020 date was fixed by the Applicant and the applicant genuinely failed to diarize the same, I find no basis for having taken over one year to make the current application. The fact that the defendants were in Court on the said date cannot excuse the Applicant’s absence. The application dated 20th December 2021 is too late in the day and the same is disallowed as it is an abuse of the Court process. Costs shall be borne to the Plaintiff.” (sic)
11.
As earlier captured in this judgment, the Appellant’s suit was dismissed for want of prosecution upon the Appellant and or its counsel failure to attend to the matter when it came up for hearing. In seeking to have the latter order set aside, the Appellant relied on Sections 3A of the CPA alongside Order 12 Rule 7 of the CPR, the latter which specifically states that
“where ……… judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”
12.
That said, it is settled that the power to grant or refusal to set aside or vary an order, judgment or any consequential decree or order, is discretionary, wide, and unfettered. However, the discretion must be exercised judicially and justly. The rationale for the discretion to set aside conferred upon the Court was spelt out in the case of Shah –vs- Mbogo and Another [1967] E.A 116:
“
The discretion to set aside an ex-part judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”
13.
The Appellant while calling to aid the decision in Fatuma Hamisi Mwarasi v Orini Limited, Reefview Investments Ltd & 3 others [2020] eKLR, Ibrahim Mohamed Leo & Another v Hussein Mohamed Leo & 4 others [2020] eKLR and Wachira Karani v Bildad Wachira [2016] eKLR submitted that failure to attend Court was due to misdiarization which mistake of counsel ought not be visited on the innocent litigant. It was further posited that from the record the Appellant was not indolent and had taken active steps towards prosecution of the suit whereas timely prosecution of the same was hindered by the Covid-19 pandemic. Counsel went on to argue that there was no inordinate delay in filing the motion meanwhile any delay was satisfactorily explained and that the Appellant or counsel lacked control over delayed mapping. The decisions in Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others (2013) eKLR and Peter Mwaura Kanyoro v Ndungu Mwangi & Another (2018) eKLR were relied on in the forestated regard.
14.
On prejudice, the Appellant restated the exhortation in Philip Keipto Chemwolo v Augustine Kubende (1982-1988)1 KAR 1036 and Cape Suppliers Limited v Sinohydro Corporation Limited (Civil Case 848 of 2010) [2022] KEHC 16878 (KLR) to assert that failure to allow the appeal is more likely to visit prejudice upon the Appellant meanwhile any prejudice meted on the Respondent can reasonably be compensated by an award of costs. In summation, counsel urged this Court ought to uphold the Appellant’s right to a fair hearing by allowing the appeal in the interest of justice. The decisions in Richard Ncharpi Leiyagu (supra) and John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR were relied on.
15.
On the part of the Respondent, counsel called to aid the decision in Wachira Karani (supra), Caroline Mwirigi v African Wildlife Foundation [2021] eKLR and Invesco Assurance Co. Ltd v Onyange Barrack [2018] eKLR to submit that setting aside a dismissal order involves discretion whereas the Appellant had failed before the trial Court to sufficiently explain the delay and or why the Court ought to exercise discretion in its favour. On failure to prosecute the suit, it was summarily submitted that it was not enough for the Appellant to simply blame counsel without showing any tangible steps taken by it towards follow up of the matter. The decision in Netta Gohil v Fidelity Commercial Bank Ltd [2019] eKLR was cited in the latter regard. In conclusion, the Court was urged to dismiss the appeal with costs.","23.
Having analyzed the test in which the Court ought to apply before reinstatement of a suit, I wish to make the following notes that will ultimately determine this matter;
a.
This Suit was dismissed on its first hearing. It is imperative for Courts to take into account the demeanor of a party seeking reinstatement of a suit by looking at the previous records. For example, if the records show that such a party occasioned numerous adjournments before, that would certainly act as a red flag for dismissal. In fact, at the time when the matter was in Court before the hearing date was taken, there was no full compliance or in other words, the matter was not ripe for hearing.
b.
Covid-19, delayed mapping and Misdiarizing the matter. There is no doubt that this case was active at the heart of Covid-19 and during this time ,some Courts were closed and policies hurriedly developed to break the impasse. Creation and effectualization of Virtual hearings was not a mean feat. I happen to have worked as a head of station in this time (Eldoret) and I can confirm that that period was very difficult. In fact, i had to create a separate cause list for many matters ""hanging"" without dates and send notices to respective advocates. At the time, we developed a policy of ""non dismissal of matters"" without ensuring that advocates are properly notified of their respective dates and in case a matter is dismissed for a non-attendance, results were to be relayed immediately to respective advocates for you would not know who was in isolation at the time of hearing (whether client or advocate) as a results of Covid. Today, the issue of ""mapping"" although has improved still faces challenges. I can only imagine how difficult it was at the time when 'virtual hearing was cutting milk teeth' especially the upper incisors. The issue of misdiarizing is a common phenomenon not just in this case. I have seen a hearing notice for 17th of November 2020 with a stamp next to the Respondent's address meaning that it was received by the Respondent unless that stamp does not belong to the respondent as it is ineligible. Since the matter was dismissed on 17th August 2020, it would have been courteous for the respondent's advocate to inform the Appellant instead of letting the Appellant chase a wild goose. The fact that such hearing notice was served, demonstrates that indeed the matter was misdiarized.
c.
Change of advocates:
The former advocate has not been afforded an opportunity to explain why he did not follow up the matter. I know that this cannot be practicably possible but the reality is that the said advocate is supposed to be in a clear position to shed light on developments after 17th August 2020. No one knows the reason as to why the Applicant decided to change advocates.
d.
I have read the pleadings and I am convinced that this is a matter that is supposed to be heard and determined for the interest of justice.
e.
Dismissal of cases for want of prosecution. In many instances, cases filed in Courts are akin to dark hovering clouds above the surface of the Earth which signifies possible rain- an expectation of a Plaintiff. It is only when a defence is filed and full trial done that the truth comes out because a defence can act as a strong wind that blows away the dark clouds and prevent the rain drops. Sometimes, it is rational to allow the wind (defence evidence) to blow through dark water laddened clouds (plaintiff evidence) to see if it will rain or not -and this only comes in inte-rpartes hearing and is oftenly referred to fair hearing/ substantive justice without due regard to procedural technicalities. If the wind is feeble or small, the rain will certainly drop and so is the opposite.
The upshot of the above is that the Application has merit and is allowed. Since fair trial was faulted, each party shall bear own costs.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4478/eng@2025-04-08
Civil Appeal E098 of 2023,Too v Mbaka (Civil Appeal E098 of 2023) [2025] KEHC 4484 (KLR) (8 April 2025) (Judgment),Judgement,High Court at Eldoret,High Court,E Ominde,8 April 2025,2025.0,Uasin Gishu,Civil,Duncan Kipruto Too v Nicholas Mbae Mbaka,[2025] KEHC 4484 (KLR) ,,"1.
This appeal arises from the judgment in Eldoret Small Claims Court Case No. 98 of 2023 The Respondent had instituted a suit against the appellant vide a statement of claim dated 21/02/2023 seeking a refund from the appellant of Kshs. 800,000/- which he claimed to have lent him pursuant to a mutual agreement. The claim was occasioned by the failure of the appellant to refund him despite having agreed that the same would be repaid within 6 months from 20/11/2019.
2.
The trial court considered the claim, documentary evidence and testimonies of the parties and vide the judgement delivered on 22/05/2023, the trial magistrate entered judgement in favour of the respondent herein. Being aggrieved with the whole judgement, the appellant instituted the present appeal vide a memorandum of appeal dated 06/06/2023 premised on the following grounds;
i.
That the learned Magistrate erred in law and in fact by failure to consider that the appellant was not involved in a friendly loan agreement dated 28th November, since the same was a forgery and he does not owe any money to the claimant/respondent.
ii.
That the learned Magistrate considered irrelevant and extraneous factors in reaching his decision and judgment that was erroneous vis-a-vis the facts of the case.
iii.
That the learned Magistrate erred in law and in fact in closing the respondent case hence prejudicial to his right to be heard.
iv.
That the learned Magistrate erred in law and in fact in failing to take into account the history, full facts and circumstances in which the appellant was not involved in the alleged loan agreement.
v.
That the learned Magistrate erred in law and in fact in rendering a judgment that was contrary to the law, since the appellant was not accorded the right to be heard.
vi.
That the learned Magistrate erred in law and in fact in applying the wrong principles applicable in the circumstances in arriving at his decision.","18.
Section 38 of the Small Claims Court provides:
38.
(1)
A person aggrieved by the decision or an order Appeals. of the Court may appeal against that decision or order to the High Court on matters of law.
(2)
An appeal from any decision or order referred to in subsection (1) shall be final.
19.
In considering the grounds of appeal filed, it is my finding that the issue for consideration is
whether this appeal raises points of law
20.
In the case of Peter Gichuki King'ara v IEBC & 2 Others, Nyeri Civil Appeal No. 31 Of 2013, (Court of Appeal) (Visram, Koome & Odek, JJA), the Court of Appeal stated as follows: -
“
It was held that it is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanour – is an issue of law.”
21.
Further, in the case of Mwangi v Kihiu (Civil Appeal 16 of 2023) [2023] KEHC 18643 (KLR) (28 April 2023) (Judgment) when handling an Appeal emanating from the Small Claims Court, Kizito Magare J stated as follows:
“
Even on the normal legal lingua, a point of law must clearly arise out of the pleadings. In case of appeal, it should arise out of the memorandum of appeal vis-à-vis the pleadings in the court below …”
22.
Regarding evidence, the trial court is bound by section 32 of the Small Claims Court Act, which provides: -
32.
Exclusion of strict Rules of evidence
(1)
The Court shall not be bound wholly by the Rules of evidence.
(2)
Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence.
(3)
Evidence tendered to the Court by or on behalf of a party to any proceedings may not be given on oath but that Court may, at any stage of the proceedings, require that such evidence or any part thereof be given on oath whether orally or in writing.
(4)
The Court may, on its own initiative, seek and receive such other evidence and make such other investigations and inquiries as it may require.
(5)
All evidence and information received and ascertained by the Court under subsection (3) shall be disclosed to every party.
(6)
For the purposes of subsection (2), an Adjudicator is empowered to administer an oath.
(7)
An Adjudicator may require any written evidence given in the proceedings before the Court to be verified by statutory declaration.
23.
I have read the impugned judgement. I have also discerned from the Record of Appeal all the pleadings that were filed in the lower court. I note from that record that the appellant did file a Response to the Statement of Claim dated 29th March 2023 on 31st March 2023. The appellant also filed a Written Statement dated the same day. From the record of proceedings, it is indeed correct that the appellant through his Counsel participated in the trial when the respondent put forth his case and an adjournment was granted due to his physical non-attendance to another date so that he may come at another date to present his case. He did not appear on the given date and the trial court proceeded to close his case and render its judgement.
24.
All the above notwithstanding, in its judgement the Hon Magistrate stated that there was no evidence challenging that of the claimant, and proceeded to consider the evidence of the appellant only and entered judgement in favour of the respondent. Even as the appellant had failed to turn up in court on the date of the hearing of his case, there were pleadings filed by him that the court ought to have considered vis-a-vis the evidence adduced by the claimant. It is clear from the judgement that the Hon Magistrate did not at all in the address herself to the appellant’s response to the claim that was on record or even to the issues raised by Counsel for the appellant in the cross examination of the claimant before reaching her determination.
25.
In this regard and in light of the finding of the Court of Appeal in the case of Peter Gichuki King'ara v IEBC & 2 Others, Nyeri Civil Appeal No. 31 Of 2013 (Supra) where the court held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence is an issue of law, then I am satisfied that there was indeed a miscarriage of justice and the appellant was prejudiced. This in my considered opinion amounts to a mistrial and I now hereby so find. In this regard, I am satisfied that the Appeal has merit and I allow the same in its entirety with costs to the applicant. The entire proceedings of the lower court and including the judgement delivered on 22nd May 2023 in now hereby set aside and the file is referred back to the small claims court for a re-trial.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4484/eng@2025-04-08
Civil Appeal E192 of 2024,Transpares Kenya Limited v Kibiego & another (Suing as the Legal Representatives of the Estate of Julius Kipkering) (Civil Appeal E192 of 2024) [2025] KEHC 4436 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Eldoret,High Court,E Ominde,8 April 2025,2025.0,Uasin Gishu,Civil,Transpares Kenya Limited v Hudson Samuel Kibiego & Mirriam Chepngeno,[2025] KEHC 4436 (KLR),,"1.
By a Notice of Motion dated 6/11/2024 brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Orders 42 Rule 6 (1) and 51 Rule (3) of the Civil Procedure Rules, the Applicant seeks the following orders:
1.
Spent.
2.
Spent.
3.
That there be stay of proceedings and/or further proceeding and/or writing and/or delivery of the judgment and/or taking any action in Eldoret CMCC No. E157of 2023 and/or any action pending the hearing and determination of this appeal.
4.
That costs of this application be in the cause.
2.
The application is anchored on the grounds on the face of it and it is further supported by the Affidavit dated 6/11/2024, sworn by Advocate Anne Halwenge Odwa.
3.
She deposed that the subordinate court matter, Eldoret CMC No. E157 of 2023 came up for defence hearing on 13/03/2024 when the Subordinate Court closed the defence case in the absence of the counsel for the Appellant/ Applicant, that the Appellant/Applicant immediately moved the court vide an application dated 18/03/2024 seeking to set aside the orders of the court closing the defence case, that the subordinate court delivered its ruling on 28/08/2024 and dismissed the Appellant/Applicant's application on the ground that no sufficient cause had been shown and/or advanced by the Appellant/Applicant to warrant setting aside the orders closing the defence case.
4.
That the Appellant/Applicant being aggrieved by the said ruling and/or decision of the court sought leave to appeal against the said decision which request the court granted hence the instant appeal, that the Appellant/Applicant similarly filed an application dated 16/9/2024 seeking stay of proceedings pending the hearing and determination the appeal before the subordinate court, that the subordinate court delivered its ruling on 30/10/2024 dismissing the said application, that at the time of dismissing the application dated 16/9/2024 the matter was pending filing of submissions to the main suit and that the subordinate court has directed parties to file submissions within 21 days and fixed the matter for judgment on 29/1/2025.
5.
She further deposed that this Court's decision on the appeal will have a direct impact and/or effect on this matter hence the need for this Court to halt action and/or stay the proceedings in Eldoret CMCC No. E157 of 2023 pending the hearing and determination of the Appeal, that the Appellant/Applicant stands to suffer loss should the subordinate court matter proceed before this Court pronounces itself on the weighty legal issues raised in the appeal hence the need to grant stay of proceedings in subordinate court matter to await this Court's decision and that the Appellant/Applicant stands to be prejudiced should this matter proceed for writing of the judgment yet the Appellant/Applicant's witness has not been heard on the matter and that the orders sought ought to be granted to prevent this appeal from being rendered nugatory. Counsel contended that this this Court has power to grant the orders sought in the interest of justice and in the spirit of Article 50 and 159 of the Constitution of Kenya, 2010. In the end, she deposed that this this Application has been brought timeously and in good faith.","23.
I have considered the Application, the Replying affidavit and the written Submissions filed by both parties as well as the authorities cited. The sole issue for determination is
Whether this Court ought to grant the Applicant herein stay of proceedings pending the hearing and determination of the appeal.
24.
Order 42 Rule 1 that Counsel for the Applicant has submitted is the applicable provision in applications of this nature is titled Form of appeal and it provides as follows;
1.
Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively
25.
Order 42 rule 6(1) of the Civil Procedure Rules which Counsel in her submissions is emphatic is not the relevant applicable provision on the other hand provides that:
“
(1)
No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
26.
Because the applicant is seeking not only for the stay proceedings in which there is a decision of the Court dismissing the applicant’s Application to open the proceedings and allow the applicant to present her defense, it follows then that the applicant then is seeking for stay of proceedings as well as a stay of the court’s determination. Clearly therefore, the provisions of Order 42 Rule 1 are irrelevant in the circumstances and the relevant provision of the Rules is Order 42 Rule 6(1) and the court shall proceed under this provision.
27.
When determining an Application seeking stay of proceedings, the Court is required to exercise its discretion after due consideration of the merits of the case and the likely effect that such an order may have on the need to ensure that the ends of justice are met. The exercise of the court’s discretion must be grounded on judicious principles as the Hon. Justice Ringera held in the case of Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000 (Supra) as hereunder:
“
As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice …… the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is so, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”
28.
Similarly, I also fully associate myself with the guidelines to be met in Applications for stay of proceedings set out in the Halsbury’s Law of England, 4th Edition, Vol. 37 page 330 and 332 which I have herein below reproduced as follows:
“
The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.
This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.
It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”
29.
Further, in the case of Kenya Wildlife Services v Jane Mutembi (2019) eKLR, again, Hon. Justice F. Gikonyo held that:
“
Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall right to fair trial. Therefore, the test for stay of proceedings is high and stringent.”
30.
In the instant case, because it is common ground that the applicant did not put forth her defense in the lower court, what the court ought to consider are the circumstances under which this happened and whether the applicant was prejudiced by the decision of the court in light of these circumstances to lead to the conclusion that her rights under Article 50 of the Constitution were infringed and as a result, if the proceedings are not stayed and the lower court goes ahead to deliver its judgement then the appellant will be prejudiced as submitted.
31.
In considering the issues raised, I note that in their Replying Affidavit and subsequent submissions, the respondent deposed that the applicant was accorded four occasions by the lower count to proceed with its defense but the applicant failed to proceed on the given dates but chose to adjourn and/or failed to appear despite the relevant hearing dates being taken by consent. That subsequently, the court closed the applicant’s case and set a date for judgement.
32.
These averments were not at all rebutted, challenged and or controverted by the applicant by way of a Further Affidavit. I also note that Counsel for the applicant steered cleared of this issue in her submissions and also did not rebut the same as submitted upon by counsel for the respondent. Without going into all the other issues raised, in my considered opinion, being satisfied that contrary to the applicant’s assertion that she was unfairly and unjustly denied the opportunity to put across her case by the lower court, I am of the finding that she was accorded every opportunity to do so and she spurned those opportunities at every turn and can therefore now not claim that the act of the Hon Magistrate in closing the case without her ventilating her defense will cause her prejudice in light of the fact that she is the author of her own misfortune. In this regard, I further find that the applicant does not merit the exercise of the court’s discretion in her favor for reasons that the applicant has come to court with unclean hands.
33.
On this ground therefore, coupled with the fact that the trial court being a court of first instance, her right of appeal is still fully reserved, I fully associate myself with the holding Justice Ringera in the above cited case that in deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases……On the same vein, I also associate myself fully with the finding of Gikonyo J that stay of proceedings impinges on the right of access to justice, right to be heard without delay and overall right to fair trial. Therefore, the test for stay of proceedings is high and stringent.”
34.
Finally, by dint of the fact that in proceedings before the court, Section 1A of the Civil Procedure Act sets out the overriding objectives which the court is enjoined to abide by which are as I have hereunder reproduced is as follows;
1.
The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, [Emphasis mine] proportionate and affordable resolution of the civil disputes governed by the Act.
2.
The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).
3.
A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court [Emphasis mine]
35.
Being satisfied also that the guidelines as set out in in the excerpt from the Halsbury’s Laws of England herein above laid out are in tandem with the authorities that I have herein cited and which I have found to be persuasive and therefore relevant, I am of the finding that the applicant’s application lacks merit and the same is accordingly dismissed in its entirety. The interim orders herein issued are now hereby set aside and the applicant is to bear the costs of the application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4436/eng@2025-04-08
Civil Appeal E1468 of 2023,Trax Kenya Limited & another v Lwango (Civil Appeal E1468 of 2023) [2025] KEHC 4410 (KLR) (Civ) (8 April 2025) (Judgment),Judgment,High Court at Nairobi (Milimani Law Courts),High Court,LP Kassan,8 April 2025,2025.0,Nairobi,Civil,Trax Kenya Limited & Khimji Jethalal v Dan Otieno Lwango,[2025] KEHC 4410 (KLR),,"1.
This appeal emanates from the judgment delivered on 24/11/2023 in Nairobi Milimani SCCC No. E2054 of 2023 (hereafter the lower Court claim). The claim was filed by Dan Otieno Lwango, the claimant before the lower court (hereafter the Respondent) as against Trax Kenya Limited and Khimji Jethalal, the respondents before the lower Court (hereafter the 1st and 2nd Appellant/Appellants) seeking inter alia general and special damages. It was averred that at all material times to the suit the Respondent was a pedal cyclist whilst the 1st Appellant was the registered owner of motor vehicle registration number KCK 596B (hereafter the suit motor vehicle) while the 2nd Appellant was the authorized driver or beneficial owner of the suit motor vehicle.
2.
It was further averred that on or about the 04/02/2023 the Respondent was lawfully riding his bicycle along Parklands Road when 2nd Appellant so negligently drove, managed and or controlled the suit motor vehicle so carelessly that he failed to keep proper look out for other users thereby knocking the Respondent, a consequence of which the latter sustained serious body injuries and thus suffered much pain and loss. The doctrine of Res Ipsa loquitor was equally pleaded.
3.
In response to the claim, the Appellant filed a statement of defence denying the key averments in the statement of claim meanwhile averred on a without prejudice basis to the averments in the defence that the accident was caused and or substantially contributed to by the negligence of the Respondent.
4.
From the record of proceedings before the trial Court, it would appear that parties recorded a consent on liability in ratio of 85:15 in favour of the Respondent as against the Appellants and thereafter proceeded to canvass the issue of damages by way of filed documents and written submissions in accordance with Section 30 of the Small Claims Court Act. In its judgment, the trial Court entered judgment in favour of the Respondent in the total sum of Kshs. 846,843.10/- after apportionment of 15% liability, inclusive of costs and interest in the above sum.
5.
Aggrieved with the outcome, the Appellants preferred this appeal specifically challenging the award on damages, premised on the following grounds -;
(i)
That the learned Adjudicator erred in law in awarding the Respondent general damages amounting to Kshs. 950,000/- which award was inordinately high considering the findings of the doctor during the Respondent’s re-exam that there was no post injury functional deficits and no permanent incapacitation.
(ii)
That the learned Adjudicator erred in law and fact in failing to consider the medical report by Dr. Adegu produced by the Appellants.
(iii)
That the learned Adjudicator misdirected herself by failing to consider the submissions by the Appellants while arriving at the judgment.
(iv)
That the learned Adjudicator’s award was incommensurate with injuries sustained by the Respondent.
(v)
That the award on general damages was unreasonable and excessive. (sic)
6.
The appeal was canvassed by way of written submissions of which this Court has duly considered alongside the memorandum of appeal, the record and supplementary record of appeal. This is a first appeal, specifically from the Small Claims Court. This Court has repletely observed and must iterate that the Small Claims Court is a specialized Court on accord of legislation that establishes the said Court. That said, Section 38 of the Small Claims Court Act prescribes the nature of appeals that lie from the Small Claims Court to the High Court by providing that; -
1.
A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
2.
An appeal from any decision or order referred to in subsection (1) shall be final.”","14.
Upon review of both the Appellants and Respondent submissions before the trial Court, it would seem that both have relied on decisions that the lower Court did not have the benefit of considering while rendering its determination. That later is in clear disregard of the exhortation by Ochieng J (as he then was) in Silas Tiren & Another v Simon Ombati Omiambo [2014] eKLR, of which this Court agrees with, that law on appeal process is intended to correct the errors made by the trial Court however the same is not an invitation upon this Court to assess a decision of the lower Court that was arrived at using a yardstick that was not made available to it.
15.
Confoundingly, the Appellants had urged before the lower Court that the award of Kshs. 200,000/- was sufficient however on appeal have urged an award of Kshs. 500,000/-. Nevertheless, a review of the impugned decision, there was no in-depth analysis and or consideration of the respective parties’ medical reports on record in respect of the Respondent’s injury. The trial Court seems to have only referred to the Respondent’s medical evidence to the exclusion of the 2nd medical report by the Dr. Adegu, as urged in the Appellants memorandum of appeal. Though a factual issue, per the exhortation in Kenya Breweries Ltd (supra) this Court may intervene where it is shown that trial Court failed to consider matters they should have considered. Further to the forestated, the trial Court seemed to have relied on the date decision in Rukia Mugoya v Johnson Juma Ogutu [2007] eKLR wherein the claimant sustained wedge compression, fracture dislocation at C4, C5; facial paralysis both upper and lower limbs, loss of stool control and loss of sensation from the naval region downwards with 100% incapacitation. Ex facie, the injuries in the latter decision were more severe than those sustained by the Respondent in the instant matter. It must also be stated that juxtaposing both Dr. Okere’s medical report (capturing 15 % incapacitation) and that by Dr. Adegu, (capturing no incapacitation) it would seem that although the Respondent must have endured much pain in the period of morbidity, he seems to have sufficiently recovered from his injuries with little attendant sequela.
16.
In this Court’s opinion the authority relied on by the trial Court was hardly on all fours with the instant case. However, this Court equally appreciates that it is nigh impossible to find two cases reflecting injuries that are similar in every respect and a Court’s duty is to do its best to assess appropriate damages, based on the most reasonably comparable authorities. From my own review of the material presented before the trial Court and comparisons with authorities relied on by the trial Magistrate, the Appellants complaint in regard of the awarded damages is slightly merited and the Court does feel justified to interfere given the nature of injuries disclosed in the medical evidence available and attendant sequela. Reviewing the cases cited in the lower Court by the respective parties, the Court considers the case of Jimna Muthusi Kaloki v Rebecca Wanzila Musyoka [2020] eKLR cited by the Appellants as closely relevant however not on all fours with the injuries sustained by Respondent with the most severed thereof being a compressed fracture of the L1 vertebral.
17.
It is useful at this juncture to bear in mind the applicable principles in the assessment of damages, and further the exhortation by the English court in Lim Poh Choo v Health Authority (1978)1 ALL ER 332 as echoed by Potter, J.A in Tayab v Kinany (1983) KLR14, quoting dicta by Lord Morris Borth-y-Gest in West (H) v Sheperd (1964) AC 326, at page 345 as follows:
“
But money cannot renew a physical frame that has been battered and shattered. All the courts can do is to award sums which must be regarded as giving reasonable compensation. In the process, there must be the endeavor to secure some uniformity in the method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said and done, it still must be that amounts which are awarded are to a reasonable extent conventional.” (Emphasis added).
See also Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd. [2013] eKLR.
18.
Thus, with the above in reserve, the Court is persuaded to disturb the award by the trial Court decreasing the same to Kshs. 850,000/- on general damages whereafter upon apportionment of liability of 15% the same would amount to Kshs. 722,500/- as the final award on general damages. The award on special damages was not challenged and the same is sustained as awarded.
19.
In conclusion the Appellants appeal succeeds, to wit, the award of general damages by as awarded by the trial Court at Kshs. 805,000/- is hereby substituted with an award of Kshs. 722,500/- after apportionment of liability. The Appellants are equally awarded the costs of the appeal. Specials shall attract interests from the time the case was filed at the lower court and the general damages from the time the lower court judgment was read. Each party to bear own costs.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4410/eng@2025-04-08
Judicial Review Application E281 of 2024,Vee Vee Enterprises Limited v Managing Director Kenya Railways Corporation & another (Judicial Review Application E281 of 2024) [2025] KEHC 4560 (KLR) (8 April 2025) (Judgment),Judgment,High Court at Nairobi (Milimani Law Courts),High Court,RE Aburili,8 April 2025,2025.0,Nairobi ,Judicial Review,Vee Vee Enterprises Limited v Managing Director Kenya Railways Corporation & Kenya Railways Corporation,[2025] KEHC 4560 (KLR) ,,"1.
The exparte applicant is Vee Vee Enterprises Limited. Vide its Notice of motion dated 17th December, 2024, the applicant seeks judicial review orders of mandamus to compel the 1st respondent to pay from the revenues of the 2nd respondent Kenya Railways Corporation balance of decretal sum being Kshs 392, 336, 211.46 as at 19th October, 2024 together with accrued interest at the rate of 14.5% per annum from October 1st, 2029 until payment in full arising from the final Arbitral Award of Calvin Nyachoti FCIArb and subsequent decree of the Court in HCCCOMSC E601 of 2021 between Vee Vee Enterprises Limited versus Kenya Railways Corporation and the Ministry of Transport. The applicant also prays for another order of mandamus to compel settlement of all costs and expenses that are incidental to the enforcement and execution of the Arbitrator’s award being an order and decree arising from HCCCON E601 of 2021.
2.
The other prayer is for notice to show cause in the event of default of such settlement, once compelled.
3.
It also prays for costs of the application.
4.
The grounds in support of the application are on the face thereof and supported by the statutory statement for leave and verifying affidavit together with annextures thereof.
5.
Opposing the application, the respondents filed a preliminary objection dated 16th January 2025 contending that the application was fatally defective for non-compliance with section 21 of the Government Proceedings Act and Order 29 Rule (3) of the Civil Procedure Rules as no certificate of order and or certificate of costs has been obtained and served upon the respondents which is a mandatory requirement for enforcement of decrees against the government. The respondents also filed a replying affidavit setting out the journey the matter had taken and how it involves the National Treasury and Kenya Revenue Authority and how some of the prayers sought cannot be quantified hence the National Treasury cannot pay.
6.
Responding to the Preliminary objection, the applicant filed grounds of opposition and a further affidavit contending that the preliminary objection is based on misapprehension of the law and lacks merit and that it was res judicata the issues raised before Mabeya J in HCCCOM E601 of 2021 in the Garnishee proceedings; that the 2nd respondent is a state corporation established under an Act of Parliament with a corporate seal and perpetual succession which has power to sue and be sued and therefore does not constitute or comprise Government or department of the government for purpose of the Government proceedings Act hence those provisions cited do not apply; and that in Kenya Revenue Authority v Habimana Sued Hamad [2015] eKLR the Court of Appeal held that state corporations were not government departments hence they cannot take refuge under the government proceedings Act.
7.
This court was urged to dismiss the preliminary objection.","9.
I need not rehash the pleadings, depositions and submissions for three reasons. One, is that the Notice of motion in question as filed on 17/12/2024 pursuant to leave granted as per the ruling uploaded on 19th December, 2024 is not signed. Secondly, is that the leave to apply was granted on 19/12/2024 and no notice of motion was filed pursuant to that leave as granted. The question that I will answer in the succeeding paragraphs of this judgment is what are the consequences of having unsigned pleadings and what about there being, in essence, no notice of motion filed at all, pursuant to the leave granted to the applicant. The unsigned notice of motion was filed together with the application for leave.
10.
There is then the issue of whether the 2nd respondent is a government entity, which issue was settled on appeal when the applicant attempted to garnishee the money belonging to the 2nd respondent and held in Kenya Commercial Bank.
11.
Allowing the appeal, the Court of Appeal held that the assets of the 2nd respondent could not be attached as stipulated in law because ethe 2nd respondent is a government entity hence its linkage to the Government Proceedings Act. As such, the preliminary objection cannot be said to be far-fetched and neither is it based on misapprehension of the law. It is also not res judicata as it appears the applicant’s counsel has not read the Court of Appeal decision on the matter.
12.
Commencing with the first question of unsigned notice of motion originating these proceedings, Order 2 Rule 16 of the Civil Procedure Rules provides that:
“
Every pleading shall be signed by an advocate, or recognized agent (as defined by Order 9, Rule 2) or by the Party if he sues or defends in person”
13.
What is not in dispute is that a pleading is like a bridge. It is an important connection between a litigant and the justice that he or she seeks from court or Tribunal. It is for that reason that Order 2 Rule 16 of the Civil Procedure Rules is framed in mandatory not directory or discretionary terms. Signing of pleadings authenticates the document and determines whether the document is valid or genuinely before a court or tribunal.
14.
In Regina Kavenya Mutuku & 3 Others vs United Insurance Co. Ltd[2002]1KLR 250, Ringera J. (as he then was) held that:
“
An unsigned pleading has no validity in law as it is the signature of the appropriate person on the pleading which authenticates the same and an unauthenticated document is not a pleading of anybody, it is a nullity.”
15.
7.The Court of Appeal in Atulkumar Maganlal Shah vs Investment & Mortgages Bank Limited and 2 Others CA 13/2001 stated as follows concerning unsigned pleadings:
“
Where a pleading is not signed the same would be struck out rather than being dismissed. A pleading must be signed either by the advocate or the party himself where he sues or defends in person or by his recognized agent and this is meant to be a voucher that the case is not a mere fiction…. The failure to sign the service copy of the statement of Claim if the original is signed is not fatal...”
16.
Thus, it matters not that the mistake is that of an advocate. Since the error is not curable by an amendment, the client must bear the consequences of the carelessness of counsel. See John Ongeri Mauria & Others vs Paul Matundura CA No. Nai 301 of 2003[2004]2EA 163.See also the Court of Appeal decision and observations in Nai. CA 228/2018 Kiptoo Arap Korir Salat vs IEBC & Others where the Court of Appeal was confronted with an unsigned pleading. It concluded that where a pleading is not signed, the same should be struck out.
17.
Consequently, having perused the notice of motion dated 17th December, 2024 as filed into court, and in the e-portal which is not signed, I find no notice of motion and the notice of motion is hereby struck out.
18.
The other reason for striking out the Notice of motion date 17th December, 2024 is that leave to apply was granted vide the brief ruling of 19th December, 2024. The Notice of motion dated 17th December 2024 was, according to the court fees receipt, filed together with the chamber summons on 17th December, 2024. No notice of motion was filed pursuant to the leave granted on 19th December, 2024.
19.
Accordingly, there is no notice of motion filed pursuant to the leave granted by the Court on 19th December, 2024.
20.
I would have stopped there. However, as the applicant is not barred from filing fresh proceedings over the same subject matter, I will briefly discuss the question of whether the certificate of order against the government was mandatory in this matter, following the court of appeal decision that the 2nd respondent is a government entity. This is important because of the misinformation about certificate of order against the government.
21.
The applicant maintains the stance that the 2nd respondent is a statutory body independent of the Government hence not governed by Order 29(3) of the Civil Procedure Rules and Section 21 of the Government proceedings Act.
22.
The High Court in the case of Association of Retirement Benefits Scheme vs. Attorney General & 3 Others [2017] eKLR aptly cited with approval the Indian Supreme Court case of International Airport Authority of India & Others (1979) SC. R 1042 in which the test for determining whether an entity was a government body or not, was stated as follows:
“
(a)
Consider whether any share capital of the corporation is held by the Government and if so that would indicate that the corporation is an instrumentality or agency of Government.
(b)
Where the financial assistance of the State is so much as to meet almost the entire expenditure of the Corporation, that fact would afford some indication of the corporation being impregnated with Governmental character;
(c)
It may also be relevant to consider whether the corporation enjoys monopoly status conferred by the State.
(d)
Whether the body has deep and pervasive State control,
(e)
Whether the functions of the corporation are of public importance and closely related to Governmental functions then that would be a relevant factor in classifying the corporation as an instrumentality or agency of Government and
(f)
If a Department of a Government is transferred to a corporation, then it becomes an instrumentality or agency of the Government.”
23.
The above decision was rendered quite recently on 25th October, 2024.
24.
The Court of Appeal in the matter challenging the decision by Justice Mabeya which allowed garnishee proceedings to proceed against the 2nd respondent, was clear that the 2nd respondent is a government entity and that is the reason section 88 of the Act establishing it bars execution by way of attachment of its assets.
25.
Additionally, the applicant cannot insist that the 1st respondent must pay the decretal sum from the revenues collected by the 2nd respondent when it is clear from the correspondence annexed that the 2nd respondent also relies on the exchequer and therefore appropriated funds held by the National Treasury to settle decrees such as the one herein, where the debt is incurred by the 2nd respondent as a government agent in implementing government projects, which fact the applicant is very much aware of the process where the 2nd respondent acts as an agent of the National Government but has chosen a short cut.
26.
Without a certificate of order against the government being issued and served upon the Attorney General and the accounting officer of the 2nd respondent, this court, the respondents and the National treasury would not even know how much is payable in prayer 2 of the void notice of motion. A certificate of order against the government quantifies all the amount due on a decree. No judgment should be directed to pay an amount which is unknown.
27.
Further, the National Treasury would only settle based on certificate of order against the government. This in my view is important otherwise the 2nd respondent would be confronted with questions as to how much is due of the generalized prayer.
28.
This is a very simple matter for the applicant to comply and approach the court, now that the law prohibits attachment of assets of the 2nd respondent, instead of engaging in academic exercise of litigating whether the 2nd respondent is a government entity or not, a matter that has long been settled by the Court of Appeal. I trust that the applicant will now comply and file an appropriate application and seek to recover the monies owed to it as opposed to engaging in procedural arguments.
29.
In the end, the application which has been found to be nonexistent for the reasons given is struck out.
30.
Having struck out what appears to be an application which is not signed or filed pursuant to the leave of court granted, I order that each party bear their own costs as the respondents have not denied that the money claimed is owed and remains unsettled.
31.
This file is closed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4560/eng@2025-04-08
Miscellaneous Criminal Application E014 of 2025,Waraya v Republic (Miscellaneous Criminal Application E014 of 2025) [2025] KEHC 4398 (KLR) (8 April 2025) (Ruling),Ruling,High Court at Siaya,High Court,DK Kemei,8 April 2025,2025.0,Siaya,Criminal,Peter Ochieng Waraya v Republic,[2025] KEHC 4398 (KLR)  ,,"
1.
The Applicant herein has filed a Notice of Motion dated 17/1/2024 and filed on 17/1/2025 seeking for an order that this court reviews the sentence of10 years’ imprisonment imposed by the Lower Court vide Bondo Criminal Case No. 44/2022 to a less severe sentence. The application is supported by the Applicant’s affidavit sworn on even date.
2.
The Applicant’s gravamen is inter alia; that he was arrested at the age of twenty-four (24) years; that he is the first born in a family of eight children without parents who have all died; that he is the sole bread winner for his family; that he is suffering from health complications which cannot be managed in prison; that he is remorseful.
3.
The Respondent did not file a response to the application as the learned counsel indicated that he leaves the matter to the court to make orders as appropriate.","4.
I have considered the Applicant’s application aforesaid and the averments in the affidavit in support. The issue for determination is whether the application has merit.
5.
It is noted that the Applicant had been charged before Bondo Law Courts vide Criminal Case (S.O) No. E044/2022 for the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 22/9/2022 at about 1500hrs in [Particulars Withheld] village, Got Ramogi Sub Location, Bondo Sub-County willfully and unlawfully intentionally attempted to cause your penis to penetrate the vagina of L.A a child a aged 16 years.
6.
The Applicant also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on 22/9/2022 at about 1500hrs in [Particulars Withheld] village, Got Ramogi Sub-Location, Bondo Sub-County within Siaya County willfully and unlawfully intentionally caused your finger to touch the vagina of L.A a child aged 16 years.
7.
After a full trial wherein the Respondent called five(5) witnesses while the Applicant called three(3) witnesses, the Applicant was found guilty of the main count and sentenced to serve ten (10) years’ imprisonment.
8.
It appears that the Applicant has opted not to lodge an appeal against both conviction and sentence but has decided to approach this court for a sentence review.
9.
Under Section 9(2) of the Sexual Offences Act No. 3 of 2006, a person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten (10) years. I find this is the minimum sentence possible in law since an offender could as well be sentenced to periods of more than ten (10) years if circumstances permit. The fact that the Applicant has opted not to challenge his conviction, the impression given is that he is okay with it. The Applicant wants this court to interfere with the sentence. The trial court before imposing the sentence, had called for a pre - sentence report. The same was availed and which indicated that the Applicant was someone who is not remorseful and that his conduct in molesting the minor has not been taken well by the community. The report also indicated that there are rampant cases of sexual offences in the area. The report found him not suitable for non-custodial sentence. It is apparent that the action of the Applicant caused psychological trauma on the victim. The Applicant being an adult was expected to protect the complainant who was a minor but not to prey on her. The Applicant who was a neighbour of the victim, turned into a predator. This calls for deterrence sentence so as to curb the kind of offences which are rampant in the area. I am not persuaded to interfere with the sentence. The Supreme Court in Petition No. 18/2023 Republic versus Stephen Gichuki and Others [2023] eKLR held that the minimum sentences imposed under the Sexual Offences Act No. 3 0f 2006 remain lawful until the Act is amended or declared unconstitutional. Hence, the sentence imposed by the trial court is quite proper in all respects.
10.
It is also noted that the Applicant had been released on bond and therefore no issue arises regarding the application of Section 333 (2) of the Criminal Procedure Code. Hence, the sentence imposed shall proceed from the date of conviction.
11.
In the result, it is my finding that the Applicant’s application aforesaid lacks merit. Same is dismissed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4398/eng@2025-04-08
Criminal Appeal E160 of 2024,Waweru v Republic (Criminal Appeal E160 of 2024) [2025] KEHC 4465 (KLR) (8 April 2025) (Judgment),Judgment,High Court at Kibera,High Court,DR Kavedza,8 April 2025,2025.0,Nairobi,Criminal,Moses Mugo Waweru v Republic,[2025] KEHC 4465 (KLR) ,,"
1.
The appellant charged and after a full trial convicted for the offence of rape contrary to Section 3 (1) (a) (b) as read with Section 3 (3) of the Sexual Offences Act No. 1 of 2006. now Cap 63 Laws of Kenya. He was sentenced to serve ten (10) years imprisonment.
2.
Aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, he challenged the totality of the prosecution’s evidence against which he was convicted. He complained that his defence was not considered. He urged the court to quash his conviction and set aside the sentence imposed.
3.
This being the first appellate court, we are guided by the ruling in Okeno v. R [1972] EA 32. In this case, the court opined that a court of first appeal ought to re-examine all the evidence afresh and in an exhaustive manner, so as to come up with its own conclusions without overlooking the conclusions of the trial court, bearing in mind that it never saw the witnesses testify.
4.
The prosecution called nine witnesses to support their case. It was the prosecution’s case that on 14 November 2020 the complainant (PW3) lived with Bedan Maison (PW2) in a two-bedroom flat. On Bedan’s birthday, they celebrated with cake and alcohol, joined by others. The complainant, who first met the appellant in primary school and reconnected through PW2 seven years later, returned home exhausted after the party. Bedan and Newton Simiyu (PW4) followed. Larry fell asleep but awoke in agony, witnessing Moses fleeing his room. Emotional in court, he identified Moses as his assailant. Too shocked to speak initially, he later told his mother, MKA (PW1), who arranged medical attention.
5.
Bedan (PW2), confirmed the celebration. The complainant left early, and later the appellant called to visit. Bedan allowed him to use his room and stepped out to play video games elsewhere. Returning home, he found Moses gone. Soon after, the complainant texted, revealing the sexual assault. Bedan noted the complainant, typically a light drinker, had overindulged.
6.
Newton (PW4) recalled the complainant arriving home drunk, followed by Bedan. The appellant arrived, entering Bedan’s room. After Bedan left, Newton saw the appellant go into Larry’s room past midnight. At 5:30 a.m., he observed the appellant exit via the kitchen door. Newton confirmed the appellant, the complainant, Bedan, and Patrick Wachira were present; Wachira slept through the incident.
7.
Mariam (PW1) the complainant’s mother called her from the party during the Covid curfew. Later, he confided about the rape. She took him for medical examinations, a DNA test, and to the police.
8.
John Njuguna (PW6), a clinician at Nairobi Women’s Hospital, examined Larry on 21st November 2020 noting anal trauma and agitation, with no other injuries or DNA evidence. He produced medical forms as evidence.
9.
Chief Inspector Wanjohi (PW5) from the DCI forensic unit reviewed CCTV footage from 19th March 2021, producing 12 photographs. The fifth showed a person of interest, though unclearly. His report and certificate were produced as evidence. PC Lilian Mwende (PW7), the initial investigator, met the complainant and his parents on 21st November 2020. Alone and distressed, the complainant reported the appellant raped him, recounting waking in pain as the appellant fled. The appellant later messaged an apology on Instagram before blocking him. PW7 collected CCTV, statements, and samples, producing as evidence, with medical findings confirming the sexual assault.
10.
Pamella Okello (PW8) from the government chemist analysed samples received on 30th November 2020 an anal swab and blanket from the complainant. Semen appeared on the swab but not the blanket; with the results being inconclusive, failing to link the appellant to the crime.
11.
Vincent Ongeri (PW9) from Safaricom provided call records for Moses (072444xxxx, ID 3690xxxx) and the complainant (071652xxxxx ID 3565xxxx), submitting them as evidence.
12.
In his defence, the appellant stated that on the material day he was invited by PW2 to a birthday party, where he met the complainant and was drinking. He later left with two friends and was dropped at his apartment. PW2 later called him to continue the party at his place, where more people were present. He noted that Ian Osman brought more drinks, and they went to party on the 9th floor of Building 10. The complainant was not present. The appellant said he left the 9th floor at midnight and went to PW2’s room, where the complainant was not present, and he slept on the couch until 6:00 a.m.
13.
He stated that when he woke up, the complainant was on the phone with his mother, and Newton was in the kitchen and helped him open the door. The appellant denied ever sending an Instagram message to the complainant and said he was distressed when he left. He added that DNA results did not link him to the incident.
14.
The appellant recalled one occasion when the complainant was aggressive towards a woman and said the complainant once proposed an unconventional relationship, which he declined. He was aware the complainant had been sodomised but denied any involvement. He confirmed being with Bedan, who later left, and denied going to the complainant’s room.","15.
I have considered the evidence and the submissions on record. I find that the issue in this appeal is whether the prosecution proved their case beyond reasonable doubt.
16.
Rape is defined under section 3 of the Sexual Offences Act to mean,
the intentional and unlawful penetration of a person’s genital organ into another’s genital organ without their consent.
17.
The elements for rape are well settled in Simon Kimiti David v Republic [2017] eKLR where it was stated thus;
“
Without corroboration, the essential elements of rape consist of the following:
(1)
The act of intentional and unlawful penetration.
(2)
The act of sexual intercourse was done and against the complainant’s will.
(3)
The consent is obtained by force or by means of threats or intimidation.”
18.
The prosecution was therefore required to establish the following ingredients; penetration, absence of consent, and that the Appellant was the unlawful perpetrator of the act.
19.
On penetration, the complainant alleged that he had been subjected to anal rape. Medical documentation presented in support of this assertion includes the Gender Violence Recovery Centre (GVRC) form, which recorded evidence of blunt force trauma to the anal region at the time of clinical examination. Additionally, the Post-Rape Care (PRC) form, documented healing injuries, specifically bruising at the 6 o’clock position of the anus, though there was no active bleeding. The PRC form further indicated that the observed injuries were consistent with the complainant’s account of traumatic penetration. The P3 medical examination form, corroborated the findings similarly noting anal trauma.
20.
Collectively, these three contemporaneous medical reports, prepared and signed by healthcare professionals who personally examined the complainant, strongly support the ingredient of penetration which was proved beyond reasonable doubt.
21.
On the issue of consent, the complainant consistently maintained that no consent was given to the alleged sexual act. He had returned home after a night of consuming alcohol and engaging in social activities with friends and was in a state of rest when the assault occurred. He categorically stated that he did not, at any point, consent to any form of sexual interaction with the perpetrator. This assertion is further corroborated by the medical evidence, which documented anal trauma indicative of forceful penetration. There is no evidence on record to suggest that the complainant willingly participated in the incident. In light of the totality of the evidence, the element of lack of consent has been established beyond reasonable doubt.
22.
On the identity of the perpetrator, the complainant maintained that it was the appellant who raped him. That he woke up to pain in his anal region and saw someone getting off his bed. When keen to see who it was, it was the appellant. He could not tell the time and remained in bed until around 10 am.
23.
The other witnesses presented by the prosecution did not witness the alleged acts of rape. This is not peculiar to this matter, as such acts of sexual violence rarely get witnessed by third parties. Circumstantial and collaborative evidence would normally be used in such situations. The proviso to Section 124 of the Evidence Act (Cap 80) Laws of Kenya also allows the court to convict based on the evidence of the victim if the court is satisfied that the victim is truthful and proceeds to give reasons for such a belief.
24.
In rape, the general rule is that even without considering the presence or otherwise of medical evidence, an offence of this nature can be proved by oral evidence of a victim of rape or circumstantial evidence. This position is fortified by the holding of the Court of Appeal in Martin Nyongesa Wanyonyi vs. Republic [2015] e-KLR citing Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) where the appellate court stated that:
“
The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence.”
25.
This court has given careful consideration to the entirety of the evidence on record and, in particular, the forensic findings. The DNA analysis report tendered clearly indicates that no DNA profile attributable to the appellant was recovered from the anal swab samples taken from the complainant. This forensic evidence is crucial and cannot be disregarded. In cases of sexual assault, DNA evidence—though not always conclusive—is an important tool in linking an accused person to the offence. In the present matter, the fact that the report did not link the appellant to the offence, raises the issue of whether the remaining circumstantial and testimonial evidence sufficiently and conclusively establishes the appellant as the perpetrator.
26.
Upon further scrutiny, contradictions within the prosecution’s narrative are evident. Bedan (PW2), a key witness, stated that he left the house to play video games and, in doing so, permitted the appellant to use his bedroom. However, Newton (PW4) contradicts this account, stating that Bedan was present when the appellant allegedly entered the complainant’s room. This inconsistency raises legitimate concerns about the reliability and accuracy of the witnesses' recollections and casts doubt on the precise sequence of events on the material night considering the parties had been drinking alcohol. It remains unclear whether Bedan left the premises before or after the alleged incident occurred, an issue that is crucial in determining the appellant’s opportunity to commit the offence.
27.
The complainant, in his testimony, stated that he awoke in pain and witnessed the appellant fleeing from his room. However, his account is devoid of any specific details regarding the lighting conditions or visibility in the room at the time. These omissions are not trivial. The reliability of a visual identification, particularly in a dimly lit or dark environment, must be subject to rigorous scrutiny. The absence of clarity on the conditions under which the alleged identification was made significantly weakens the probative value of this evidence.
28.
It is further noted that PW4 confirmed the presence of several individuals in the house during the material period. Despite this, the investigating authorities appear to have made no meaningful inquiry into whether any of the other occupants could have accessed the complainant’s room. This oversight reflects a lack of thoroughness in the investigation and weakens the foundation of the prosecution’s case, which appears to rest predominantly on the complainant’s testimony and Newton’s assertions, both of which are subject to the inconsistencies noted above.
29.
PW4’s claim that he saw the appellant enter the complainant’s room past midnight and later leave via the kitchen door at 5:30 a.m. is not independently corroborated. No third-party testimony is presented to support this observation despite the presence of other guests in the house as claimed. Furthermore, there is no explanation as to why, if Newton witnessed such an act, he failed to intervene or report the incident immediately. This omission undermines the credibility of his account and further reflects the inadequacy of the investigative process.
30.
Additionally, this court notes with concern that the trial magistrate, in arriving at the finding of guilt, appears to have relied on a misconstrued interpretation of the appellant’s defence. It was suggested that the appellant had admitted to being in a consensual relationship with the complainant. Upon review of the record, there is no evidence to support such an assertion. To the contrary, the appellant expressly denied entering the complainant’s room or engaging in any sexual act with him. He maintained that he slept on the couch in Bedan’s room until morning. The magistrate’s inference was therefore not only unsupported by the record but also prejudicial, leading to an unsafe conclusion.
31.
The issue that this court has to grapple with is whether the contradictions and inconsistencies outlined in the foregoing analysis are so trivial as to be ignored, or whether they are substantial and fundamental to the issues for determination. In Richard Munene vs Republic [2018] eKLR, the Court of Appeal stated as follows about contradiction or inconsistency in the evidence of the prosecution witness:
Contradictions, discrepancies, and inconsistencies in the evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies, and inconsistencies are proved, they must be resolved in favor of the accused.
It is a settled principle of law, however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily create some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.
32.
The test as to whether the contradictions are minor or substantial was laid out in the case of Sigei v Republic [2023] KECA 154 (KLR):
“
In assessing the impact of contradictory statements or discrepancies on the prosecution’s case, our understanding is that firstly, for contradictions to be fatal, they must relate to material facts. Secondly, such contradictions must concern substantial matters in the case. Thirdly, such contradictions must deal with the real substance of the case.""
33.
From the above authorities, it is clear that contradictions and inconsistencies, unless satisfactorily explained, would usually, but not necessarily, result in the evidence of a witness being rejected. The contradictions must be grave and point to deliberate untruthfulness.
34.
In the premises, the contradictions in witness testimony, the lack of forensic evidence linking the appellant to the crime, and the demonstrable investigative lapses raise serious doubt as to whether the prosecution discharged its burden of proof to the requisite standard. The court must, therefore, approach the appellant’s conviction with caution, as the totality of the evidence does not support a finding of guilt beyond reasonable doubt.
35.
For the foregoing reasons, I find the appeal merited and hereby quash the conviction and set aside the sentence of ten (10) years imprisonment imposed by the trial court. The appellant is thus set at liberty forthwith unless otherwise lawfully held.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4465/eng@2025-04-08
Civil Appeal E006 of 2021,Adana v Ogora (Civil Appeal E006 of 2021) [2025] KEHC 4446 (KLR) (7 April 2025) (Judgment),Judgment,High Court at Kisii,High Court,DKN Magare,8 April 2025,2025.0,Kisii,Civil,Mbipui Julius Adana v Avenus Ogora,[2025] KEHC 4446 (KLR) ,,"1.
This is an appeal from the Judgment and decree of Hon. S.K. Onjoro (SRM), given on 9.10.2020 in Kisii CMCC No. 695 of 2018. The Appellant was the Defendant in the lower court. The court heard the matter and delivered judgment as follows:
a.
Liability 70:30% for the Plaintiff
b.
General damages Ksh. 1,600,000/=
c.
Special damages Ksh. 25,180/=
d.
Costs of the suit
2.
The Appellant was aggrieved and filed a precise Memorandum of Appeal on quantum and set forth the following grounds of appeal:
a.
That the learned trial magistrate erred in law and, in fact, in awarding Ksh. 1,600,000/- on 100% basis in general damages which was inordinately high.
b.
That the learned trial magistrate erred in law and, in fact, in awarding Ksh. 25,180/= on 100% basis for special damages, which was not proved.
c.
That the learned trial magistrate erred in law and, in fact, by failing to consider the appellant’s evidence on record, thereby arriving at an excessive award.","10.
This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
11.
The jurisdiction for this court to review the evidence in the lower court should this be done but with caution. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-
“
It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
12.
The duty of this court in the appeal is thus to reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
“
...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...""
13.
The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows: -
The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.
14.
For the appellate court to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. The foregoing statement had been ably elucidated by Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-
“
The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”
15.
The award must have accord to the local circumstances. In the case of Butler vs. Butler Civil Appeal No. 43 of 1983 (1984) KLR, Keller JA stated the following regarding the award of damages.
“
This court has declared that awards by foreign courts do not necessarily represent the results which should prevail in Kenya, wherethe conditions relevant to the assessment of damages, such as rents, standards of living, levels of earnings, costs of medical supervision and drugs, may be different. Kimothia v Bhamra Tyre Retreaders[1971]EA(CA-K); Tayab and Ahmed Yakub & Sons v Anna May Kinanu Civil Appeal 29 of 1982 (Law, Potter & Hancox JJA)March 30,1983.The general picture, all the circumstances and the effect of the injuries on the particular person concerned must be considered.
The fall in the value of money generally, and the leveling up or down of the rate of exchange between the Kenya Shs 20 and Pound Sterling, must be taken into account.
Some degree of uniformity, however, is to be sought in awards of damages and the best guide is to pay regard to recent awards in comparable cases in local courts. Bhogal v Burbridge [1975] EA 285 (CA-K). None, alas, has been cited to us.
But a member of an appellate court may ask himself what award would have been made? There are differences of view and of opinion in the task of awarding money compensation in these matters, of course, and if the one awarded by the trial judge is different from one’s own assessment, it is not necessarily wrong. H West & Sons Ltd v Shephard [1964] AC 326, Lord Morris of Borth-Y-Gest; also Hancox JA in Tayab (1983 KLR, 114).
16.
The issue in the court below was whether the Respondent suffered those injuries. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that:
“
In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
17.
The balance of probabilities is also about what is likely to have happened than the other. Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;
“
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”
18.
Furthermore, the standard of proof in civil cases must carry a reasonable degree of probability, but not so high as is required in a criminal case for such standard is based on a preponderance of probabilities. In Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that:
“
Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.
This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”
19.
Damages are proved to be at large, they must be commensurate with similar injuries. The injuries suffered were as follows:
i.
Tenderness on the chest wall
ii.
Dislocation of the left shoulder joint
iii.
Fracture of the left ulna and radius
iv.
Dislocation of the left knee
v.
Pelvis fracture
vi.
Fracture of the left tibia and fibula
20.
The Appellant did not present any medical evidence. The evidence of the Respondent was as such uncontroverted. In the case of Janet Kaphiphe Ouma & Another –vs- Maries Stopes International (Kenya), Kisumu HCCC No. 68 of 2007, Ali Aroni, J citing the decision in Edward Muriga suing through Stanley Muriga –vs- Nathaniel D. Schulter, Civil Appeal No. 23 of 1997 stated that:
“
In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”
16.
Guided by the above case, I find the statements in the defence filed on 10th December 2014 remain mere allegations having not been substantiated orally in court by the Appellant to controvert the Respondents testimony.”
21.
This Court appreciates that courts have impressively expressed the extent of application of an expert opinion in judicial proceedings and the general trend is that such evidence is not necessarily conclusive and binding. As was held in Shah and Another vs. Shah and Others [2003] 1 EA 290:
“
The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.”
22.
The medical report is not binding, and the court is entitled to reject it if it does not align with the rest of the evidence. Due regard must, however, be given to a medical report where there is no conflicting medical evidence. The Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that:
“
… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”
23.
Courts must give proper respect to the opinions of experts. Such opinions are not, as it were, binding on the courts and the courts must accept them as stated in Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, where it was held that:
“
It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:-
""The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- ""Because this is the evidence of an expert, I believe it.""
24.
This court will independently reevaluate the expert report. The medical report, in this case, was in consonance with the treatment notes and the Respondent’s evidence. Dr. Ombati Timothy Mokua concluded that the Respondent sustained great harm with fractures of the left tibia and fibula, fracture of left ulna and radius, pelvis fracture, left knee dislocation, crack of the iliac bone, left shoulder joint dislocation, and several other injuries which were in the process of healing. He gave a prognosis that the dislocations may complicate with post-traumatic arthritis later.
25.
The court takes judicial notice that that the iliac is largest and most superior bone of the hip, forming part of the pelvic girdle and connecting with the ischium and pubis to create the hip bone. The pelvis fracture thus extended not only on the pelvis but with a crack in the iliac. These injuries were thus serious.
26.
Therefore, it is my finding that the injuries pleaded herein were proved. The medical report of Dr. Ombati Timothy Mokua dated 2.11.2018 clearly stated that the Respondent suffered left tibia fibula fractures, left ulna radius fractures, pelvis fracture, left knee dislocation and left shoulder dislocation and was not controverted. I do not accede to the submissions by the Appellant that the Respondent only suffered soft tissue injuries which is without basis. I find no basis to interfere with this finding.
27.
The Appellant also contended that the assessment of damages was excessive and not commensurate with the injuries. The lower court awarded damages as follows:
General damages – Ksh. 1,600,000
Special damages – Ksh. 25,180/=
28.
As regards general damages, the lower court awarded Kshs. 1,600,000/-. No specific authority was referred to. The damages must be commensurate to the injuries for consistency in the judicial award. This is achieved through awarding similar injuries with similar or relatively similar damages. The Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”
29.
The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -
1)
An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2)
The award should be commensurable with the injuries sustained.
3)
Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
4)
Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
5)
The awards should not be inordinately low or high.
30.
I proceed to establish related injuries. In the case of James Gathirwa Ngungi v Multiple Hauliers (EA) Limited & another (2015) eKLR, the Plaintiff therein suffered a compound comminuted fracture of the right tibia, compound comminuted fracture of the right fibula, fracture of the left proximal radius, fracture of the left ulna, head injury, deep cut wound of the parietal region about 4 cm, soft tissue injury and bruises of both hands, multiple facial cuts and lacerations and pathological fracturing of the right leg. Ougo J assessed damages at Ksh 1,500,000/=.
31.
In China Road & Bridge Corporation vs. Job Mburu Ndung’u [2021] eKLR (Mwita, J), the court had awarded Kshs. 2,000,000.00, where the injuries sustained were fractures of the left radius, the left ulna, the right tibia and the right fibula.
32.
In my reevaluation based on the above authorities, the fractures suffered by the Respondent were multiple and the court was called upon to assess damages based on the general hallmark of the injuries all of which may not have appeared in related judicial decisions. The award could as such be based on an estimate bearing in mind the injuries that included fracture of the pelvis, tibia and fibula and ulna and radius. The authorities cited by the Appellant did not present all facets of the injuries suffered by the Respondent and appear to have been founded on the wrong assumption that the Respondent did not suffer any fractures. Based on the foregoing authorities, I find the award by the lower court of Kshs. 1,600,000/- not inordinately high.
33.
On special damages, the rule is strict and somewhat mathematical. The court has to discern pleaded damages and proceed to find their proof. It is not based on estimates. The Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177 stated that:
“
The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.”
34.
Special damages are thus very specific and constitute liquidated claim which must be pleaded and proved. This court’s task thus entails whether the trial court failed to award special damages that were pleaded and proved. In Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003, Kimaru J held that:
“
In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage whether pecuniary or non-pecuniary. If damages are special damages they must be specifically pleaded and proved as required by law. For a loss to be calculable at the date of trial it must be a sum that has actually been spent or loss that has already been incurred…Special damages and general damages are used in corresponding senses. Thus in personal injury claims, ‘special damages’ refers to past expenses and lost earnings, whilst ‘general damages’ will include anticipated loss as well as damages for pain and suffering and loss of amenities…Special damage is in the nature of past pecuniary losses or expenses while general damage is futuristic pecuniary loss or expenses. Therefore in the instant case the loss of income as a direct consequence of this fraud would be both a general damage as well as a special damage. General damages particularly extent thereof would be unknown at the time of the trial and must await the conclusion of the case so that they may be assessed. Special damages on the other hand consist of those losses that could be calculated at the time of the trial. Special damages must be pleaded, but so must future pecuniary loss if it may lead to surprise. Non-pecuniary damage must not be quantified in a pleading…
35.
The Appellant submitted that only Ksh.18,680/- was proved. The Respondent pleaded Ksh. 171,700/- and I note the court awarded Ksh. 25,180/- under this head. The Respondent produced receipts as follows:
a.
18,000/= Cash receipt
b.
Medical report receipt Ksh. 6,500/=
c.
Other receipts 1,240/=
Total Ksh. 25,180/=
36.
Appellant has not appealed the finding on special damages but I have to find whether the court awarded more than what was proved as urged by the Appellant. In my revaluation, I find no basis for the award of Kshs. 6,500/= for medical report. The same was not proved to have been incurred. Therefore, the special damages are Ksh. 18,680/= as submitted by the Appellant. The special damages will not be subject to contribution. The lower court did so in error. The error is reversible and I correct it.
Determination
37.
The upshot of the foregoing is that I make the following orders: -
a.
The appeal against the award of general damages lacks merit and is dismissed.
b.
The award of special damages is set aside and substituted with Ksh. 18,680/=. This amount shall not be subject to contribution.
c.
The Respondent shall have costs assessed at Ksh. 85,000/=.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4446/eng@2025-04-07
Criminal Appeal E082 of 2024,Enima v Republic (Criminal Appeal E082 of 2024) [2025] KEHC 4495 (KLR) (7 April 2025) (Judgment),Judgment,High Court at Kibera,High Court,DR Kavedza,7 April 2025,2025.0,Nairobi,Criminal,Wilson Motunde Enima v Republic,[2025] KEHC 4495 (KLR) ,,"
1.
The appellant was charged and after a full trial convicted for the offence of defilement contrary to section 8(1) as read with 8(2) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve life imprisonment.
2.
Aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, he challenged the totality of the prosecution’s evidence against which he was convicted. He argued that his right to a fair trial was violated. He urged the court to quash his conviction and set aside the sentence imposed.
3.
This being a first appeal, it is the duty of this court as the first appellate court, to reconsider, re-evaluate, and re-analyse the evidence afresh and come to its own conclusion on that evidence. The court should however bear in mind that it did not see witnesses testify and give due consideration for that. (See Okeno v Republic [1972] EA 32).
4.
The complainant A.H. gave unsworn evidence after voir dire examination. She told the court that she was six (6) years old. On the material day which she could not recall, after school, she would visit Willy, a man she knew, who lured her with his phone while her mother washed clothes. One day, the appellant undressed her and inserted his penis into her vagina. She was in pain during the incident. Her mother (PW2) interrupted, spotting her through a window. The complainant confessed that the appellant had done “bad manners” to her. They sought her grandmother’s counsel before returning home. Later, her mother took her to SHOFCO hospital, where Zena advised a visit to Kilimani the next day. She identified the appellant in court.
5.
PW3, the complainant’s mother, testified that on 12th May 2017, while washing clothes outside, her daughter, PW1, returned from school. She instructed her to change, but soon after, PW1 entered the appellant’s house. PW3 called her for food, but she did not respond. Though surprised that the door was closed, she trusted the appellant and continued washing. Later, when she peered through the window, she saw a startled Willie, who claimed the complainant was at the door. PW1 then emerged, stating that Willie had defiled her, marking the third such incident. PW3 took her to her mother-in-law, who found no clear evidence. However, days later, a foul smell from PW1’s private parts led to a hospital visit to SHOFCO, followed by a report at Kilimani Police Station. PW3 confirmed that PW1 was born on 22nd November 2010.
6.
At the hospital, PW2, Joan Muriuki, a clinical officer, examined PW1 and found her hymen broken, with foul-smelling discharge, redness, and swelling. She treated PW1 and filed the PRC form, which was produced in evidence. PW4, Dr. Joseph Maundu, also examined the complainant, confirming similar findings. He filled and signed the P3 form, which was produced in evidence.
7.
PC Obina Royee, the investigating officer, recorded statements from PW1 and PW3 and produced the complainant’s birth certificate.
8.
In his sworn defence, the appellant denied the offence, stating that he was at work at the material time. He noted that DNA samples were taken, but no results were issued.","9.
To succeed in a prosecution for defilement, it must be proven that the accused committed an act that caused penetration with a child. ""Penetration"" under Section 2 of the Act means, ""the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
10.
Further, section 8(1) and (2) of the Act, No. 3 of 2006 provides thus: -
8. Defilement
(1)
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2)
A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
11.
The critical element of penetration was comprehensively established through cogent and compelling evidence. The complainant provided a clear and detailed account of the incident, which was corroborated by medical evidence from PW2 and PW4, both medical practitioners. PW2 produced the Post Rape Care (PRC) form, while PW4 tendered the P3 form, which revealed a bacterial infection, foul-smelling vaginal discharge, and a broken hymen. These medical findings unequivocally supported the complainant’s account, reinforcing the prosecution’s case. The combination of testimonial and medical evidence thus sufficiently satisfied this essential ingredient of the offence.
12.
The age of the complainant was another pivotal factor in these proceedings. PW5, the investigating officer, produced the complainant’s birth certificate, confirming her date of birth as 22nd November 2010. This proved that she was only six years old at the material time, placing her within the legal definition of a child and fulfilling another essential element of the charge.
13.
The identity of the appellant as the perpetrator was established beyond reasonable doubt. The complainant knew the appellant, a neighbour, and had interacted with him several times. Thus, her identification of the appellant was based on recognition, not mere recollection. This position was further strengthened by in-court identification by both the complainant and her mother, which remained unchallenged and unimpeached.
14.
Given the foregoing analysis, the prosecution discharged its burden of proof beyond a reasonable doubt. The complainant's testimony, corroborative medical records, proof of age, and unequivocal identification of the appellant formed a cohesive and unassailable case. Accordingly, the conviction stands affirmed.
15.
On sentence, the appellant was sentenced to life imprisonment. During sentencing, the court considered the appellant's mitigation, and the pre-sentence report and meted the minimum sentence provided in law. In the premises, I see no reason to interfere with the sentence.
16.
In the end, the appeal is found to be lacking in merit and is dismissed in its entirety.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4495/eng@2025-04-07
Judicial Review Application E284 of 2024,Hassan & another v Director of Public Prosecutions & 2 others; Nuh Abdille Hassan t/a Nurex Cargo & Clearing Limited (Interested Party) (Judicial Review Application E284 of 2024) [2025] KEHC 4556 (KLR) (7 April 2025) (Judgment),Judgment,High Court at Nairobi (Milimani Law Courts),High Court,RE Aburili,7 April 2025,2025.0,Nairobi ,Judicial Review,Daud Ali Hassan & Yussuf Mohammed Abdullahi v Director of Public Prosecutions & 2 others; Nuh Abdille Hassan T/A Nurex Cargo & Clearing Limited,[2025] KEHC 4556 (KLR),,"1.
Pursuant to leave granted on 31st December 2024, the Applicants herein filed the substantive Notice of Motion dated 2nd January 2025 which is the subject of this Judgment. The motion seeks the following orders:
a.
That the Honourable Court do issue an order of Prohibition, prohibiting the 3rd Respondent or any other officers acting with his authority, prohibiting him/her and each one of them from proceedings with the conduct and/or prosecution of any criminal case borne out of MCCRMISC Case No. E1715 of 2024; R v E—Light Cargo Limited with regard to the applicants’ pending the full hearing and determination of this application or the further Orders of the court.
b.
That this Honourable Court do issue an order of Certiorari directed to the 1st and 3rd Respondent, by themselves, their servants and/or agents or any other officer acting under their authority to quash the decision by them made on or about 26/ 12/ 2024 to institute and/or commence criminal proceedings against the applicants.
c.
That this Honourable Court do issue an order of Prohibition directed against the 2nd Respondent, by himself, his servants and/ or Agent or any other judicial officer for the time being seized of hearing or the conduct of MCCRMISC Case No. E1715 of 2024; R v E-Light Cargo Limited from trying and/or carrying on any further proceedings on the matter pending the full hearing and determination of this application or the further Orders of the court.
d.
That further and in the alternative, the Honourable Court be pleased to issue orders directing officers of the 3rd Respondent, specifically 104573 PC Suleiman Mwatajiri to release personal items belonging to the Applicants being:
a.
National Identity Cards and/ or Passports and Travel Documents.
b.
Mobile Phone(s).
e.
A declaration that the Order granted by the Magistrate Court sitting at Makadara on the 24th of December 2024, allowing officers of the 3rd Respondent to have access, search and recover suspected stolen goods held at the applicants’ premises in respect of MCCRMISC Case No. E1715 of 2024; R v E-Light Cargo Limited is and was invalid, made ultra vires, void and of no effect.
f.
That costs of this application be provided for.
2.
The application is supported by a Statutory Statement dated 30th December 2024 and a verifying affidavit sworn on 2nd January 2025 by the 1st Applicant.
3.
According to the Applicants, the 1st Respondent initiated criminal proceedings before the Makadara Chief Magistrates Court on 24th December 2024, seeking a search warrant to allow officers from the Directorate of Criminal Investigations (DCI) at Starehe to access, search and recover suspected stolen goods at their premises, MEMKAM Godown No. 3.
4.
The alleged criminal case is said to have arisen from a dispute between Nuh Abdille Hassan Trading as Nurex Cargo & Clearing Limited and Abdi Mohammed Hassan, with the former alleging that their goods ordered from China had been diverted to the Applicants' premises.
5.
That on the same day, the Magistrate’s Court granted the search warrant, allowing DCI officers access to the premises. However, that upon executing the search, the officers allegedly harassed and intimidated the staff while ransacking the warehouse without finding any evidence linking the Applicants to criminal activity. The Applicants claim that the search was unlawful, as the officers exceeded their authority by conducting an illegal search beyond the warrant's scope, violating their right to privacy and property.
6.
It is the Applicants’ case, that they were later arrested by the Officer Commanding Station (OCS), Ruaraka Police Station on allegations of stealing by servant under Section 281 of the Penal Code. Further, that they were detained for over 24 hours before being released on cash bail of Kshs. 50,000 each.
7.
The Applicants further depose that allegation against them revolve around goods supposedly held on behalf of Nurex Cargo & Clearing Limited. However, that no employment relationship exists between them and the Interested Party complainant, thus invalidating the charge. They further asserted that their company, E-Light Cargo Limited, is a distinct legal entity and that there is no basis for the criminal charges being preferred against them.
8.
The Applicants also assert that the entire process, including their arrest and detention, amounted to abuse of power, violating the principles of natural justice, fairness, and due process. They maintain that the case against them is malicious and lacks evidence, as there was no contractual link between them and the Interested Party. They also allege that officers from the 3rd Respondent had interfered with their business by confiscating work phones and obstructing their banking activities.
9.
The Applicants seek the court’s intervention to prevent further unlawful actions against them, arguing that continued interference will cause irreparable harm to their business, which cannot be compensated by damages.","28.
I have considered the application and affidavits in support, the annextures, responses, evidence, case law and oral submissions made by counsel. The following issues arise for determination:
i.
Whether the search warrant issued on 24th December 2024 was lawful and valid;
ii.
Whether the actions of the 3rd Respondent’s officers in executing the search warrant and arresting the Applicants were lawful;
iii.
Whether the Applicants are entitled to the judicial review reliefs sought.
Whether the search warrant issued on 24th December 2024 was valid
29.
The law governing the issuance of search warrants is the Criminal Procedure Code which provides under Sections 118,118A and 119 as follows:
118.
Power to issue search warrant
Where it is proved on oath to a court or a magistrate that anything upon, with or in respect of which an offence has been committed, or anything which is necessary for the conduct of an investigation into an offence, is, or is reasonably suspected to be, in any place, building, ship, aircraft, vehicle, box or receptacle, the court or a magistrate may by written warrant (called a search warrant) authorize a police officer or a person named in the search warrant to search the place, building, ship, aircraft, vehicle, box or receptacle (which shall be named or described in the warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction to be dealt with according to law.
118A.
Ex-parte application for search warrant
An application for a search warrant under section 118 shall be made ex-parte to a magistrate.
119.
Execution of search warrants
A search warrant may be issued on any day (including Sunday), and may be executed on any day (including Sunday) between the hours of sunrise and sunset, but the court may, by the warrant authorize the police officer or other person to whom it is addressed to execute it at any hour.
30.
In the present case, the validity of the search warrant issued by the Magistrates' Court in Miscellaneous Criminal Application No. E1715 of 2024 on 24th December 2024 is a central issue.
31.
As seen under Section 118 of the Criminal Procedure Code (CPC), a search warrant may be issued by a Magistrate if there are reasonable grounds to believe that a crime has been committed and that evidence relating to that crime is likely to be found in a specific location.
32.
An application for a search warrant must be made on oath by a police officer or any other authorized person, providing sufficient facts or information that show reasonable suspicion of criminal activity. The application should clearly specify the premises to be searched and the items sought to be seized. The Magistrate, upon reviewing the application and the supporting facts, may issue a search warrant if the requirements under Section 118 are met.
33.
In the present case, the 1st Respondent, the Directorate of Criminal Investigations (DCI), applied for a search warrant on 24th December 2024, stating that goods meant for Nurex Cargo had been diverted to the Applicants' premises. The Magistrates' Court, having considered the application and satisfied that reasonable grounds existed to suspect criminal activity, issued the search warrant, granting the officers permission to search MEMKAM Godown No. 3.
34.
No challenge has been made by the Applicants on the procedures followed leading up to issuance of the search warrant. This court also notes that the search warrant was issued upon compliance with the provisions of the law under which it was obtained and as such, it is lawful and valid.
Whether the actions of the 3rd Respondent’s officers in executing the search warrant and arresting the Applicants were lawful;
35.
Having established the validity and legality of the search warrant, the next issue is the lawfulness or otherwise of the actions of the officers of the 3rd respondent in executing the said search warrant.
36.
The Applicants argue that the execution of the search warrant by the 3rd Respondent’s officers was unlawful, in that, the officers are accused of having exceeded the scope of the warrant by conducting an unlawful search.
37.
Under Section 118(2) of the Criminal Procedure Code, a search warrant must specify the particular premises to be searched and the items that are to be seized.
38.
This means that if the officers' actions went beyond these specified limits, the search could be deemed unlawful.
39.
It is also the Applicants’ case that the search involved harassment and intimidation of their staff and that the warehouse was ransacked without any evidence being found linking the Applicants to criminal activity. This, they argue, violated their constitutional right to privacy and property, as guaranteed under Article 31 of the Constitution of Kenya, which protects against unreasonable searches.
40.
The Applicants also claim that the search was conducted beyond the authorized scope. In response, the Respondents maintain that the search was executed in good faith, in accordance with the warrant and under the authority granted by the court.
41.
The ex parte Applicants’ allegations are indeed grave allegations against the 3rd Respondent’s officers, claiming that the applicants’ constitutional rights were violated through harassment and intimidation of their staff and search of premises where search warrants had not been issued. However, no evidence of these alleged violations was availed to court. No staff or even the apparent actual owners of the said warehouse has sworn an affidavit before the court to complain that the search warrants were executed in a manner that violated their constitutional rights and as such, what remains is mere assertions by the applicants. The entity introduced in the further affidavit Top Way Cargo Limited which is not a party to these proceedings has not complained of its warehouse being violated, these proceedings not being representative proceedings.
42.
In the Anarita Karimi Njeru v Republic [1979] KECA 12 (KLR) case, it was held that a party seeking a constitutional remedy is required to set out with reasonable precision that which is complained of, noting to stipulate which constitutional provisions have been infringed and how they have been infringed.
43.
Further, in Leonard Otieno vs Airtel Kenya Limited [2018] eKLR, it was held that:
“
It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights is not a mere technicality; rather, it is essential to a proper consideration of constitutional issues.”
44.
The Applicants have also raised the issue of being detained for more than 24 hours without being informed of what they are being charged with and without being taken to court. They have also claimed that the 3rd Respondent’s officers are holding their personal belongings unlawfully. In response, the 1st and 3rd Respondents contend that the Applicants were arrested on 24th December 2024 and as 25th and 26th December 2024 were public holidays, they could not be presented to court within 24 hours and they were therefore released on a police cash bail of Kshs.50,000 on 27th December 2024 with instructions to report to Makadara Law Courts on 3rd January 2025.
45.
Article 49(1)(f) the Constitution guarantees Rights of arrested persons as follows:
(1)
An arrested person has the right—
(f)
to be brought before a court as soon as reasonably possible, but not later than—
(i)
twenty-four hours after being arrested; or
(ii)
if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day.
46.
Examining the calendar for 2024, am in agreement with the 1st and 3rd Respondents’ position that the Applicants could not have been arraigned in court on 25th and 26th December 2024 as these two days were not ordinary court days as they were Christmas and Boxing Holidays.
47.
On the Applicants’ claim that they were not informed of what they had been charged with, I find this hard to believe, as the applicants in their own affidavit refer severally in their application, affidavit and Statutory Statement of being charged with the offence of stealing by servant and the documents they have annexed show the charge that the respondents intended to charge them with. The cash bail receipt issued on 27/12/2024 shows the charge to be conspiracy to defraud. The applicants have persisted that there is no evidence of employment with the complainants. However, this court cannot direct the DPP on what charge to frame against the suspect, depending on the outcome of investigations. The matter was still under investigations and only after completion would the DPP direct prosecution on a particular charge.
48.
Furthermore, a charge can be amended in the course of criminal proceedings therefore the question of stealing by servant and evidence of employment is neither here nor there.
49.
On the issue of seizure of the Applicants’ property, in the case of Republic v OCS Nairobi Central Police Station & 2 Others, Ex parte Applicant: Sixtus Gitonga Mugo [2020] KEHC 7039 (KLR) the court observed as follows:
“
The applicant has not demonstrated that there was no factual basis to justify the seizure of the exhibits. There is nothing to show that the exhibits do not form part of the intended prosecution evidence. As stated earlier, it is not the function of this court to weigh the veracity of the evidence or to assess which exhibits are relevant to the investigations. That would amount to this court descending into the arena of the trial court. An investigation should be commenced or continued if there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by a suspect. It has not been established that the facts presented in this case do not disclose an offence known to the law.
50.
Just as is the case herein, although the Applicants argue that the 3rd respondent’s officers have unlawfully seized their personal belongings, they have not demonstrated that there was no factual basis to justify the seizure of the items to assist the police in their investigations. Further, there is nothing to show that the exhibits do not form part of the intended prosecution evidence.
Whether the Applicants are entitled to the judicial review reliefs sought.
51.
The 3rd Respondent, through the Directorate of Criminal investigations and its officers draw their authority to investigate from Article 245 of the Constitution and Section 35 of the National Police Service Act. Under Sections 24 and 35 of the National Police Service Act, 2013, the functions of the police include undertaking investigations, apprehending offenders as well as detecting and preventing crime. In the exercise of the powers of investigations and arrest, the 3rd Respondent or his officers are functionally independent and can only take directions to investigate from the 1st Respondent, the DPP.
52.
The above position was restated by the Court of Appeal in Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others [2018] eKLR citing the Supreme Court of India decision in State of Maharashtra & Others v. Arun Gulab & Others, Criminal Appeal No. 590 of 2007, where the Court stated:
“
The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction to the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor can it soft-pedal the course of justice at a crucial stage of investigation/proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as “Cr.P.C.”) are a device to advance justice and not to frustrate it. The power of judicial review is discretionary; however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers.”
53.
In Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR, Odunga J (as he then was) expressed himself as follows: -
“
As has been held time and time again, the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions (DPP) to investigate and undertake prosecution in the exercise of the discretion conferred upon that once under Article 157 of the Constitution. The mere fact therefore that the intended or ongoing criminal proceedings are in all likelihood bound to fail, is not ipso facto a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. An applicant who alleges that he or she has a good defence in the criminal process ought to ventilate that defence before the trial court and ought not to invoke the same to seek the halting of criminal proceedings undertaken bona fides since judicial review court is not the correct forum where the defences available in a criminal case ought to be minutely examined and a determination made thereon…”
54.
In Kipoki Oreu Tasur vs. Inspector General of Police & 5 Others [2014] eKLR the Court stated that:
“
The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior Courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated…”
55.
In Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR the Court held that:
… the police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court...As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene....”
56.
The above decisions reiterate the 3rd Respondent’s duty to conduct investigations into complaints and subsequently, if there is enough evidence, the 1st Respondent to charge the person accused of the offence. It is this court’s humble opinion that the 3rd Respondent’s actions through its officers was within the mandate provided under the Constitution and the law.
57.
Courts have consistently held, and rightly so, that they should not interfere with the constitutional responsibility of the 1st and 3rd Respondents to investigate crimes and initiate criminal proceedings, as long as these actions are carried out in a justifiable manner. This position was adopted in the case of Michael Monari & Another vs Commissioner of Police & 3 Others, Misc. Application No. 68 of 2011.
58.
The 3rd Respondent being independent and an office established under the Constitution, the Court can only interfere with or interrogate its actions or those of its officers where there is threatened or actual violation of rights and freedoms guaranteed by the Constitution or contravention of the Constitution.
59.
In Paul Ng’ang’a Nyaga vs Attorney General & 3 Others [2013] eKLR, it was held that:
“
... this court can only interfere with and interrogate the acts of other constitutional bodies if there is sufficient evidence that they have acted in contravention of the Constitution.”
60.
In light of the above and for the reasons given in this Judgement, I find that the application dated 2nd January 2025 is not merited and it is hereby dismissed with no orders as to costs.
61.
This File Is Closed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4556/eng@2025-04-07
Succession Cause 142 of 2010,In re Estate of Maina Gikuru alias Maina Kikuru (Deceased) (Succession Cause 142 of 2010) [2025] KEHC 4471 (KLR) (7 April 2025) (Ruling),Ruling,High Court at Nyeri,High Court,DKN Magare,7 April 2025,2025.0,Nyeri,Family,Beatrice Njoki Karuri v Rosemary Wangari Ngenye,[2025] KEHC 4471 (KLR),,"1.
The Applicants filed an application dated 10.11.2024, seeking to rectify the grant confirmed on 17.10.2024. They sought the following prayers:
i.
By rectifying the mode of distribution of LR. No. LOC.15/Gakuyu/709 to be shared equally among Cyrus Irungu Mwangi and James Mwangi Muthoni as per the mediation agreement.
ii.
Costs in the cause.","2.
Before I proceed, I note that the matter was raised and dismissed earlier. The question is whether this court has jurisdiction to grant the orders. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the supreme court stated as doth: -
“
This Court dealt with the question of jurisdiction extensively. In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011, the Constitution exhaustively provides for the jurisdiction of a court of law. The Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
3.
The court will, therefore, assume jurisdiction where it has and eschew jurisdiction where none exists. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Nyarangi JA posited as follows:
“
Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:
“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”
4.
What is the difference between what was sought and resulted in the orders of 17.10.2024 and this application? Surely, why would a party wish to regurgitate the same case over and over again? There is an appellate process that should be pursued. Rectification cannot be used to redistribute the estate. In the case of Re Estate Josephat Kariuki Ngure (Deceased) [2021] eKLR, A.O. Muchelule posited as follows:
“
8. It does not matter the reasons that the applicant has for seeking the redistribution of the estate. The truth is that an application for rectification under section 74 and rule 43 is limited in scope. It can only deal with the correction of an error in names of persons or places, or the description of persons, things or places. It deals with the correction of errors regarding the time or place of death and, in case of a limited grant, the purpose for which the grant was made. In the instant case, the applicant is seeking, among other things, to introduce new beneficiaries and to rework the shares of the existing beneficiaries. Some of the existing beneficiaries in the certificate of confirmation will get more and others will get less than what the court had ordered. It is now trite that such introduction of new beneficiaries and redistribution of the estate of the deceased cannot be entertained through an application for rectification (In Re Estate of Dishon Ondiek Mayabi (Deceased) [2020] eKLR; In Re Estate of Kwaria Marete (Deceased) [2018] eKLR).""
5.
Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya defines the doctrine of Res Judicata in the following terms: -
“
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
6.
The Civil Procedure Act also provides explanations with respect to the application of the res judicata rule. Explanations 1-3 are in the following terms:
(1)—
The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.
(2)—
For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
(3)—
The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.’’
7.
In the dicta in re Estate of Riungu Nkuuri (Deceased) [2021] eKLR the court stated as follows:
“
The test for determining the Application of the doctrine of res-judicata in any given case is spelt out under Section 7 of the Civil Procedure Act. In Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:
""(a)
The suit or issue was directly and substantially in issue in the former suit.
(b)
That former suit was between the same parties or parties under whom they or any of them claim.
(c)
Those parties were litigating under the same title.
(d)
The issue was heard and finally determined in the former suit.
(e)
The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”
8.
In the case of Attorney General & another ET v [2012]eKLR it was held that;
“
The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi s NBK & Others [2001] EA 177 the court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit”.
In that case the court quoted Kuloba J, (as he then was) in the case of Njanju vs Wambugu and another Nairobi HCC No. 2340 of 1991 (unreported) where he stated: If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift in every occasion he comes to court, then I do not see the use of doctrine of res judicata…..”.
9.
In essence therefore, the doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a court of competent jurisdiction. The court in the English case of Henderson v Henderson [1843-60] All E.R 378, observed thus:
“
…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”
10.
Res judicata applies to applications just like suits. In the case of Julia Muthoni Githinji v African Banking Corporation Limited [2020] eKLR the court stated thus:
14. After a careful reappraisal of the application for injunction before the lower court, I have come to the conclusion that the application was resjudicata and the entire suit was subjudice as there was an active pending suit before a court of competent jurisdiction being Nakuru ELC No. 272 of 2017. All issues raised in the suit before the subordinate court could be properly litigated in the suit pending before the ELC. The filing of the suit by the appellant in the subordinate court when she had a similar suit in the ELC Court was an abuse of the Court process which the Court cannot countenance.
11.
By comparing the two applications and the authorities on res judicata, it is clear to me that the issues being canvassed in the application are the same dismissed on 17.10.2024. The Applicants have sought that the land parcel number Loc 15/GAKUYU/709 be given to the two persons herein. The court did not agree with them and proceeded to direct that the land be given to the estate of their late father. The issue of a mediation agreement was raised.
12.
It was again rejected since Lucy Wanjiku Mwangi did not sign. In other words, there was no mediation agreement. The applicants have redone the same application and now face the court again. If they were aggrieved by my decision, they ought to have appealed. In Maumbwa & 3 others v Kisemei (Civil Appeal E009 of 2021) [2022] KEHC 10416 (KLR) (26 May 2022) (Judgment Maumbwa & 3 others v Kisemei (Civil Appeal E009 of 2021) [2022] KEHC 10416 (KLR) (26 May 2022) (Judgment) the court stated doth:
By comparing the two applications and the authorities on res judicata, it is clear to me that the issues being canvassed in the application dated 11th January 2021 is res judicata. The issues in issue in that application were directly and substantially in issue in the application dated 13th September 2017. These issues relate to the same parties and these issues have been tried by a competent court. To my mind to bring the same issues between the same parties that have been determined by a court of competent jurisdiction is an abuse of the court process.
13.
A mediation agreement must be signed by all protagonists. The purported document is not a mediation agreement. In Greenhouse Management Limited v Jericho Development Company Limited [2015] eKLR, E.K.O. Ogola posited as follows regarding a mediation agreement.
1.
There is no doubt that the agreement and the leases herein contained arbitration and mediation processes which had to be exhausted before a party could move to court. Indeed Clause 6.13.1 allows for mediation. Now, one party contends that there was mediation, and now seeks to enforce the outcome of the alleged mediation, while the other party alleges that there was never a mediation. As far as I know, however, mediation is a voluntary process which is conducted by a neutral person who commits to confidentiality. Before the parties go into mediation, there must be firstly, a mediation agreement binding the parties to mediation. After mediation, there is an agreement containing the terms of mediation. This agreement must be signed by all the parties to the mediation. In the agreement the parties agree that they were bound with the resolutions reached by the mediator. This final agreement is a document which can be tabled in court to show that one party is reneging from the agreed resolutions.
1.
From the foregoing, it is clear that the alleged mediation which the Plaintiff now says took place was quite irregular or invalid for the following reasons:
The alleged mediator being the Manager of the Plaintiff could not be a mediator since he was not a neutral person given to confidentiality.
There was no agreement to go into mediation. This also means that the alleged mediation was not voluntary and freely entered into by the parties especially the Defendant. At least no agreement showing the parties agreed to mediation was attached to these proceedings.
There was no agreement containing the resolution of mediation. The law requires that agreement to contain all the agreed terms and resolutions and the same must be executed by all the parties.
1.
It is therefore clear to me that there was no mediation. If there was ever an attempt at mediation, the best outcome is that it failed. Mediation having failed the next cause of action was arbitration under Clause 6.13.2.
14.
There is therefore, no mediation agreement. The purported unsigned agreement is rejected. The same has never been adopted as an order of the court. The application is thus rejected.
15.
The court gets the definite impression that the application is meant to lock out other beneficiaries. Why will the two grandchildren of the deceased wish to inherit their father’s estate to the exclusion of their mother and other siblings? Such conduct is not only despicable but also to be frowned upon.
16.
The application is a mark of greed and a false sense of self entitlement. There is no basis for why beneficiaries cannot share their parents' estate equally. Pandering to the whims of the applicants make no sense, as, at the end of the day, this court cannot disinherit anyone. When a court of law had made a decision, parties have to find a way to live with it or appeal. It is not wise to continue recycling the same application.
17.
In the circumstances, the application herein is struck out for being res judicata. The file is closed.
Determination.
18.
The upshot of the foregoing is that I make the following orders:
a. The application dated 10.11.2024 is struck out for being res judicata.
b. Each party should bear their own costs.
c. The file is closed.",File Closed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4471/eng@2025-04-07
Succession Cause 364 of 2012,In re Estate of Murungi s/o Ihururu alias Zacharia Murungi Ihururu (Deceased) (Succession Cause 364 of 2012) [2025] KEHC 4428 (KLR) (7 April 2025) (Judgment),Judgment,High Court at Nyeri,High Court,DKN Magare,7 April 2025,2025.0,Nyeri,Family,David Wanyiri Ndugu v Ronald Ndungu Murungi,[2025] KEHC 4428 (KLR) ,,"
1.
Vide the Summons for Conformation of Grant dated 3.6.2024, the Petitioner applied for an order that the grant of probate or letters of administration intestate (or with will annexed) made to David Wanyiri Ndungu on 8.7.2012 be confirmed.
2.
Subsequently, the Protestor opposed the confirmation of the grant vide the Affidavit of Protest sworn on 13.9.2024 as follows:
a.
All beneficiaries agreed before the chief that land parcel Euasonyiro/Ilpejeta/Block 1/1008 be registered in the name of the Protestor in absolute.
b.
Land parcel No. Tetu/Kabage/516 was not included in the chief’s letter as the same belongs to the Protestor having bought it but registered in the name of the deceased.","15.
The issue before me for determination is whether the protest is merited and whether to confirm the grant. The grounds upon which the Protestor protested the summons for the confirmation of grant and sought that it be dismissed was that both LR No. Tetu/Kabage/516 and Euasonyiro/Ilpejeta/Block 1/1008 were his property though registered in his father’s names.
16.
In essence, the court is to establish any ground upon which the court could have issued the confirmed grant when in fact it ought not to have issued it at all. This is because by dismissing the summons for confirmation of grant, the Administrator will either commence the process afresh or rectify that which is demonstrated to have caused such dismissal. The grounds for revocation or annulment of grant of Letters of Administration are set out in Section 76 of the Law of Succession as follows:
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a)
That the proceedings to obtain the grant were defective in substance;
(b)
That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c)
that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(d)
That the person to whom the grant was made has failed, after due notice and without reasonable cause either—
(i)
To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
(ii)
To proceed diligently with the administration of the estate; or
(iii
)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
(e)
That the grant has become useless and inoperative through subsequent circumstances.
17.
However, the Protestor did not object to the confirmation of the grant or the resultant temporary grant that the Petitioner sort to be confirmed. On the other hand, the Petitioner’s case is that both properties are in the name of the deceased and constitute the estate of the deceased. That the properties should be shared among the beneficiaries of the deceased as proposed in the affidavit in support of the Summons for Confirmation of the Grant.
18.
I understand the case of the Protestor to challenge summons on the premises also that there was an agreement within the family of the deceased that bestowed the entire estate in LR No. Euasonyiro/Ilpejeta/Block 1/1008 to him. The court is alive to the agreement dated 26.12.2011 and the chief’s letter dated 17.2.2012 which is juxtaposed by the Agreement dated 3.5.2012. The case of the Petitioner is that the agreement dated 3.5.2012 revoked the agreement dated 26.12.2011.
19.
The Protestor is mute on this fact and I consider that the true position is that like LR No. Tetu/Kabage/516, LR No. Euasonyiro/Ilpejeta/Block 1/1008 is the property of the deceased available to all beneficiaries of the deceased. The Protestor has a false sense of entitlement as confirmed by his own admission that he cut down and sold trees on the estate land. This was an act of intermeddling. The law relating to intermeddling is codified in Section 45 of the Law of Succession Act Cap 160, Laws of Kenya as follows:
i.
Except so far as expressly authorized by this Act or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
ii.
Any person who contravenes the provisions of this section shall –a.be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; andb.be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.
20.
The property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorized to do so by the law. In the case of Veronica Njoki Wakagoto (Deceased) [2013] eKLR: Hon. Justice William Musyoka held:
“
The effect of [section 45]… is that the property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorized to do so by the law. Such authority emanates from a grant of representation and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence.”
21.
The Protestor had no authority to deal with the estate of the deceased as he was not the administrator. Likewise, in Re Estate of M ‘Ngarithi M’ Miriti [2017] eKLR it was held that:
“
Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law Of Succession Act. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law. I reckon that intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to imprisonment or fine or both under section 45 of the Law of Succession Act. That is why the law has taken a very firm stance on intermeddling and has clothed the court with wide powers to deal with cases of intermeddling and may issue any appropriate order (s) of protection of the estate against any person.”
1.
The court also notes that the Protestor failed to establish that he purchased the two properties using his own money and the same do not constitute the estate of the deceased. Even if the Protestor had adduced evidence of purchase, merely that cannot annul the process of confirmation of grant. Rather, that would raise an issue to be determined outside this succession process through the Environment and Land Court or designated courts of similar jurisdiction. Musyoka J, in re Estate of Andashe Munyeti (Deceased) [2021] eKLR stated as follows:
5.
After a grant is confirmed, and a certificate of confirmation of grant is processed and issued, the next step would be transmission of the property in accordance with the distribution in the certificate of confirmation of grant. Transmission is not a process under the Law of Succession Act, Cap 160, Laws of Kenya. The Law of Succession Act does not provide for it. Indeed, the term transmission is not even mentioned in the Act. It is a process which is provided for in the Land Registration Act, No. 3 of 2012, and the Land Act, No. 6 of 2012. The process has nothing to do with the succession process. The effect of it is that once the court confirms a grant, and issues a certificate of confirmation of grant, its work would be over. The parties ought to move to the next step, of execution of the confirmation orders, which happens at the land registries and at the offices of other land authorities. The application that has been placed before me dwells on matters that have nothing to do with succession, but registration of land, and the parties are better of addressing the issues to the relevant land bodies.
The promulgation of the Constitution, 2010, on 27th August 2010, had one critical consequence, the taking away of jurisdiction from the High Court, with respect to matters relating to land. That comes out very clearly from Articles 162(2) and 165(5) of the Constitution. Parliament passed a law that established the Environment and Land Court. The Land Registration Act and the Land Act, which govern transmission and land registration, carry provisions that make it clear that where disputes or questions or the need for certain actions arise, with respect to issues that are regulated or governed by the two statutes, such as transmission and land registration, then the court to address them is the Environment and Land Court and any subordinate court vested with jurisdiction. These provisions are in sections 2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act.
23.
The court has taken into account interests of all beneficiaries entitled to the deceased’s estate and has no doubt that the action taken in the summons for confirmation of grant will be for the interest of justice.
24.
There is no basis for the Protestor trying to have all the estate alone to the exclusion of others. I dismiss the assertion by the Protestor that the chief’s letter dated 17.2.2012 did not mention property LR No. Tetu/Kabage/516 because it was not estate property. The Chief only listed what came to his attention by disclosure and what matters is the evidence that the property was in the name of the deceased which the Petitioner proved and the Protestor failed to produced controverting evidence. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:
“
As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
25.
I find no basis upon which to exercise my discretion in favour of the Protestor. There is no evidence that then 4 years old or 12 years when his father came out of detention, the Protestor had any means to purchase property. He has a false sense of grandeur and misplaced sense of time. The discretion of this court is premised on the law. In animating the discretionary powers of the court in the case of Ramakant Rai vs Madan Rai, Cr Lj 2004 Sc 36, the Supreme Court of India rendered itself thus on the issue of judicial discretion:
Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:
“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.
26.
The Protestor’s evidence reminded me of a decision in Kioko Peter v Kisakwa Ndolo Kingóku [2019] eKLR, where Odunga J, as he then was lamented hereunder about this kind of evidence that is collected from the streets without triangulation to its truth in terms of time, space and reality. The Protestor was living in an alternative reality that cannot be gainsaid. The court posited as follows:
In my view such remarkable averments can only be taken to be meant to mislead the court. Parties and Counsel ought to give the court’s some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 he expressed himself in the following terms:
“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”
5. In the South African case of Matatiele Municipality & Others vs. President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC) it was held that:
“In my view a person who deliberately either by commission or omission misleads the court and the public that a particular state of affairs exist while knowing very well that that is not the position cannot be said to be open, candid and transparent. Dishonest, in my view, is an Act which is the antithesis to transparency and vice versa…”
27.
How the protestor stood in court lying to me without batting an eyelid, is beyond comprehension. He then went ahead and cut trees wantonly, knowing that the day and hour were nigh.
28.
On the other hand the Petitioner was honest and candid. He was not interested in the shenanigans the protestor was engaging the court in. I looked at W3 with horror in my eyes as he stood there in the dock lying to me. What he did not know, though he is old now, is that he has not always been old. In 1959 he was barely 10 years. No one speaks to 10-year-old strangers about land. The deceased died at the ripe old age of 78 years in 1987. He was, therefore, 50 years old in 1959. Nothing was placed before me to show any hint of succession. I cannot sign the claim as a claim for trust. It was purely a claim under a false pretense that no one was there among the other 4 beneficiaries. It is pure greed. The Protest fails.
29.
On confirmation of the grant, there are five beneficiaries. One was killed by another beneficiary who had no children. The one who killed disappeared. The killer cannot benefit from the estate of the person whom they killed. Though the estate belongs to the father, the killer cannot benefit from the windfall from the killing of the late Simon Ndirangu.
30.
The consequence of the foregoing is that I make the following in terms of distribution.
1.
Euasonyiro/Ilpejeta/ Block1/1008measuring 1.64 hectares
a.
Ronald Ndungu Murungi 0.4373 ha
b.
David Wanjiri Murungi 0.4373 ha
c.
Mary Mumbi Ndungu 0.4373 ha
d.
David Kahiga Murungi 0.328 ha
2.
Tetu /Kabage/516 measuring 3.4 acres
a.
Ronald Ndungu Murungi 0.9066 acres
b.
David Wanjiri Murungi 0.9066 acres
c.
Mary Mumbi Ndungu 0.9066 acres
d.
David Kahiga Murungi- 0.68 acres
31.
Having done so, I note that the Protestor has cut down trees while the matter was proceeding. The administrator will cause the appropriate authorities to value the same and report to the court within a month. In the course of subdivision, in the area where trees were cut, the protestor must make good the value thereof, or the same be recovered from his share of the estate.
32.
The next question is costs. I am cognizant of the fact that the parties are related. However, the protest was completely unnecessary. There must be consequences for such perilous action. How can a person claim that he won a lottery in the Nakuru Race Course in 1959? He had no idea what goes on in a race course, especially in a colonial Africa.
33.
The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -
“
(18)
It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.
34.
Costs of Ksh 95,000/= to the Petitioner will suffice.
Determination
35.
In the upshot, I make the following orders:
a.
The protest dated 13.9.2024 lacks merit and is dismissed with costs of Ksh 95,000/= to the Petitioner.
b.
The grant of representation issued to the Petitioner is confirmed in the following manner:
1.
Euasonyiro/Ilpejeta/ Block1/1008measuring 1.64 hectares
a.
Ronald Ndungu Murungi 0.4373 ha
b.
David Wanjiri Murungi 0.4373 ha
c.
Mary Mumbi Ndungu 0.4373 ha
d.
David Kahiga Murungi 0.328 ha
2.
Tetu /Kabage/516 measuring 3.4 acres
a.
Ronald Ndungu MurungI 0.9066 acres
b.
David Wanjiri Murungi 0.9066 acres
c.
Mary Mumbi Ndungu 0.9066 acres
d.
David Kahiga Murungi- 0.68 acres
c.
David Kahiga Murungi having killed his brother, he cannot benefit from the share that arise from the said brother’s death. His share shall be registered in the petitioner’s name.
d.
Transmission be concluded by 7.11.2025.
e.
The matter be mentioned before the Deputy Registrar on 9/6/2025 to receive the report of the destruction of part of the estate by cutting of trees and to confirm subdivision.
f.
The file is closed.",File Closed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4428/eng@2025-04-07
Civil Appeal E005 of 2021,Kabuu v Chinga Tea Factory Company Limited (Civil Appeal E005 of 2021) [2025] KEHC 4482 (KLR) (7 April 2025) (Judgment),Judgment,High Court at Nyeri,High Court,DKN Magare,7 April 2025,2025.0,Nyeri,Civil,Harun Kagwi Kabuu v Chinga Tea Factory Company Limited,[2025] KEHC 4482 (KLR),,"1.
This is an appeal from the Judgment and decree of Hon. M.N. Munyendo (PM) dated 6.1.2021 arising from Othaya CMCC No. 37 of 2019.
2.
The Memorandum of Appeal dated 1.2.2021 raised the following grounds:
a.
The learned magistrate erred in delivering a judgment that was against the evidence.
b.
The learned magistrate erred in law and fact in delivering a judgment that was against the law.
c.
The learned magistrate erred in applying extraneous evidence.
3.
The plaint dated 8.10.2019 claimed an order that the Respondent should pay the value of the tea leaves delivered by the Appellant. The Appellant averred that he was a duly licensed tea grower under the Crops Act, Grower No. CH0400140, CH0240170 and CH0050329. Further, the Appellant entered into contract with the Respondent to grow and supply tea to the Respondent through Kahiagira Tea Buying Centre, Nyakone Tea Buying Centre and Ngaru Tea Buying Centre.
4.
It was pleaded that the Appellant supplied under No. CH0400140 in September -December 2018, and January 2019; and under No. CH0240170 in the months of September – October 2018 and ultimately under No. CH0050329 in the months of September-December 2018 and January – March 2019 and the due and owing payment was Ksh. 1,750,946.35 which the Respondent refused to pay.
5.
The Respondent entered appearance and filed defence dated 5.12.2019 denying the averments in the plaint. In particular, the Respondent averred that the Respondent discovered that the Appellant had supplied excess weight of green tea that could not be supported by the number of the registered tea bushes as per the Tea Buying Centre By-laws. The Appellant also owed the Respondent various debts which the Respondents continued to recover over time.
6.
The trial court heard the parties and proceeded to render judgment dismissing the Appellant’s case on the basis that the Appellant failed to produce lease agreements for the tea bushes to prove his claim. Aggrieved by the finding of the lower court, the Appellant lodged a Memorandum of Appeal hence this appeal.","14.
This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
15.
This Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 the court stated:
“
…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
16.
The duty of the first appellate court was set out in the case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the court in their usual gusto, held as follows;-
“
.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-subordinate and the Court of Appeal is not bound to follow the subordinate Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
17.
The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the subordinate court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
18.
This court’s jurisdiction to review the evidence should be exercised with caution. In the case of Peters vs Sunday Post Limited [1958] EA 424 , the court therein rendered itself as follows:-
“
It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
19.
This court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions.
20.
The Appellant urged the court to find that the lower court erred in dismissing the suit. This court is entitled to reevaluate by way of a retrial the pleadings and evidence at the lower court. On the prove of the allegations of breach of contract in Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR the Court of Appeal stated thus:
“
When a party in any pleading denied an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along those circumstances, but fair and substantial answer must be given.”…
…First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.”
21.
The burden was with the Appellant to prove his case against the Respondent. On this subject, Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
22.
A party who invokes the aid of the law and asserts affirmative of an issue has the burden to prove the matters in issue. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:
“
As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
23.
It follows that the initial burden of proof lies on the Plaintiff, but the same may shift to the Defendant, depending on the circumstances of the case.
24.
The burden of proof also casts upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:
“
As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
25.
The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that:
“
In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
26.
Courts have established that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;
“
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”
27.
The preponderance of probabilities is degree well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. Furthermore in Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that:
“
Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.
This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”
28.
With the above guide, in the instant appeal, the Appellant sought an order against the Respondent to pay the tea leaves delivered. The value of the tea leaves delivered was stated as Ksh. 1,750,946.35. It was the burden of the Appellant to prove the quantities delivered that yielded the claimed amount. In David Bagine v Martin Bundi [1997] eKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177), where he that:
[The] Plaintiffs must understand that if they bring actions for damages it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.
in Attorney General of Jamaica v Clerke (Tanya) (nee Tyrell), Cooke, J.A. delivering the judgment of the court stated that special damages must be strictly proved; the court should be very wary to relax this principle; that what amounts to strict proof is to be determined by the court in the particular circumstance of the case and the court may consider the concept of reasonableness.
29.
The nature of the Appellant’s claim was also a liquidated sum. The amount was specific and how it was arrived at was important as to enable the court discern the source and import of the claim. With special damages, the rule is strict and somewhat mathematical. The court has to discern pleaded damages and proceed to find their proof. It is not based on estimates. The Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177 stated that:
“
The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.”
30.
Special damages are thus very specific and constitute liquidated claim which must be pleaded and proved. This court’s task thus entails whether the lower court failed to award the sum of Ksh. 1,750,946.35 that was pleaded and proved. In Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003, Kimaru, J held that:
“
In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage whether pecuniary or non-pecuniary. If damages are special damages they must be specifically pleaded and proved as required by law. For a loss to be calculable at the date of trial it must be a sum that has actually been spent or loss that has already been incurred…Special damages and general damages are used in corresponding senses. Thus in personal injury claims, ‘special damages’ refers to past expenses and lost earnings, whilst ‘general damages’ will include anticipated loss as well as damages for pain and suffering and loss of amenities…Special damage is in the nature of past pecuniary losses or expenses while general damage is futuristic pecuniary loss or expenses. Therefore in the instant case the loss of income as a direct consequence of this fraud would be both a general damage as well as a special damage. General damages particularly extent thereof would be unknown at the time of the trial and must await the conclusion of the case so that they may be assessed. Special damages on the other hand consist of those losses that could be calculated at the time of the trial. Special damages must be pleaded, but so must future pecuniary loss if it may lead to surprise. Non-pecuniary damage must not be quantified in a pleading…There ought to be a distinction between past pecuniary losses or expenses already incurred and could easily be calculated by say reference to receipts obtained and anticipated future pecuniary loss or expenses which is continuing and which though one may know the multiplicand you will not normally know how long the loss will take. Such an anticipated loss is general damage, which must of necessity await the completion of the suit to be assessed by the Court. Special damages on the other hand is calculable at the date of the trial out of which a round figure will be obtained. General damages are such as the law will presume to be the direct natural or probable consequences of the action complained of. Special damages on the other hand, are such as the law will infer, from the nature of the act. They do not follow in the ordinary course but are exceptional in their character and, therefore, they must be claimed specifically and proved strictly…Specific loss of profits consequential upon the loss of use of an article for a specific period to the date of the plaint is special damage, which must be pleaded. However, in certain circumstances loss of profits could be included within a claim for general damages…General damages consist of the nature of prospective loss of income while special damages consist of out of pocket expenses and loss of earnings or income incurred down to the date of trial and is generally capable of substantially exact calculation. Where damages has become crystallised and concrete since the wrong the defendant could be surprised at the trial by the detail of its amount.”
31.
Regarding proof of loss, while it is true that it is trite law that special damages must not only be specifically pleaded but also strictly proved, what amounts to strict proof must depend on the circumstances; that is to say, the character of the acts producing damage, and the circumstances under which those acts were done. See Nizar Virani T/A Kisumu Beach Resort vs. Phoenix of East Africa Assurance Company Limited Civil Appeal No. 88 of 2002 [2004] 2 KLR 269, Gulhamid Mohamedali Jivanji vs. Sanyo Electrical Company Limited Civil Appeal No. 225 of 2001 [2003] KLR 425; [2003] 1 EA 98, Coast Bus Service Ltd vs. Sisco E. Murunga Ndanyi & 2 Others Civil Appeal No. 192 of 1992.
32.
The Respondent’s case was that the amount of tea supplied was over and above the number of tea bushes as per the audit. In other words, there is no way the Appellant’s tea bushes could have yielded the quantities that he purported to supply. It was also the case of the Respondent that it paid only what the Appellant could justify as per the audit and the bylaws. Further, the Appellant could not be paid because he was in debt and any proceeds were applied towards settling the debt.
33.
In my view, it was not in dispute that the Appellant supplied tea that he was not paid. The Respondent also tendered reliable evidence that the Appellant supplied excess quantity of green tea which the number of tea bushes could not support. A party is bound by its pleadings. The Appellant failed in stating the exact quantities that could be justifiably paid. This could have enabled the court to establish whether any amount or whatever amount was due to the Appellant, if any, in relation to the alleged debts with the Respondent. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima stated as doth: -
“
11.
It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -
“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……
…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”
34.
The Appellant instead resorted to pleading quantities and amounts that he could not justify by evidence. In the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, Malawi Supreme Court of Appeal stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled “The Present Importance of Pleadings” published in [1960] Current Legal Problems at p 174 whereof the learned author posited that: -
As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….
In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”
35.
In respect to the essence of pleadings, the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in an election petition: -
“
In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”
36.
The quantities of green tea supplied were not pleaded as to enable the court to discern the difference from that which was said to have been over and above the number of tea bushes and so the attempt to prove Kshs. 1,750,946.35 was unsuccessful. The court cannot act on evidence, even where it is established, in the absence of pleadings. In the recent presidential election petition, the Court of Appeal of Nigeria sitting as the election court, in Peter Gregory Obi & another versus Senator Bola Ahmed Tinubu &INEC & 3 others consolidated with petitions No. 4 and 5 both of 2023, stated as doth: -
“
In Belgore Versus Ahmed(2013) 8 Nwlr (Pt.1355) 60 the complaint against averments in the petition that were unspecific, generic, speculative, vague, unreferable(sic), omnibus and general in terms. The Apex court specifically held as follows: -
“Pleadings in an action are written statements of the parties wherein they set forth the summary of material facts on which they rely on in proof of this claim or his defence as the case may be, and by means of which real matters [in] controversy between the parties are to be adjudicated are pleaded in a summary form. They must nevertheless be sufficiently specific and comprehensive to elicit the necessary answers from the opponent.
37.
The last aspect is whether the Respondent is entitled to audit and not to pay for excess tea supplied. The parties entered into an agreement where the Appellant was to supply tea from his farm. He ended up supplying tea in excess of the capacity he had. The Appellant was unable to explain the origin of the excess tea. This was the agreement between the parties. There was no agreement to supply tea that the Appellant did not grow. The court cannot make a party avoid a lawful contract they have entered into. In the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] eKLR it was held as follows: -
“
A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the charge.
As was stated by Shah JA in the case of Fina Bank Limited vs Spares & Industries Limited (Civil Appeal No 51 of 2000) (unreported):
“It is clear beyond peradventure that save for those special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily no part of equity’s function to allow a party to escape from a bad bargain”.
38.
While dealing with the question of the supply of excess or unaccounted-for tea, the court, B. Thuranira Jaden, J had this to say in the case of John K Waweru & 12 others v Theta Tea Factory Company Limited & another [2019] eKLR:
24.
On the other hand, the Respondent's position was that there was collusion with the clerks at the tea buying centers and falsification of records. There was no direct evidence of falsification or evidence of any reports made to the police or any disciplinary action taken against the said clerks. However, there is evidence from the Respondents that reflect that the investigations carried out reflected higher quantities of by the Appellants during the questioned period than in the previous or subsequent years.
25.
Without sufficient evidence of the tea bushes said to have been leased and from whom, it is difficult to agree with the Appellant's position that they delivered green tea leaves to the Respondents in excess of their registered tea bushes. The investigations carried out for the period before and subsequent to the period in question as per the evidence of DW1 and DW2 failed to exonerate the Appellants. Without any satisfactory explanation in respect of the excess quantities, the Appellants failed to prove that they indeed had produced the green tea leaf claimed to have been delivered to the Respondents. He who alleges must prove.
39.
The evidence on record shows that the licensing covers not only supply but also the number of tea bushes. Producing more than is scientifically possible leads to a conclusion of breach of the agreement between the parties. This is either through result inflation or unauthorized tea. The Appellant did not dispute the finding that only number CH 0050329 had 1,287 as against the registration of 2,337. The other two numbers had no single tea bush, but they produced tea leaves.
40.
In the case of Michael Rono v Tirgaga Tea Factory Ltd & another [2021] eKLR, R. Lagat-Korir posited as follows regarding excess tea leaves.
55.
At the time of the execution of the lease agreements, Section 14 of the Act provided for the registration of a tea farmer with the tea factory that he/she intends to deliver tea to. The Appellant had himself registered as a tea farmer then had his 875 bushes verified and registered. This court finds that the Appellant was aware by conduct, of the requirement for registration and verification of tea bushes.
56.
With regard to the lease agreements, there is no evidence on record to show that the 6000 tea bushes that the Appellant produced were verified and registered. There are no verification certificates to show that the 1st Respondent indeed went to the farms and counted the tea bushes to ascertain their number. There is also no evidence on record to show that the aforementioned bushes were registered so that the said tea bushes could be debited to the Appellant’s account. The Appellant also confirmed during cross examination that he did not have verification certificates with respect to the tea bushes in the leased farms.
57.
The doctrine of privity of contract applies in this case. A Contract cannot confer rights or impose obligations on any person other than the contracting parties, a contract cannot be enforced by or against a third party, which the 1st Respondent clearly is. The effect of this legal principle is that only parties who are privy to a contract can sue to enforce its terms. This position was held in the Court of Appeal case of Agricultural Finance Corporation Vs Lengetia Limited and Another (1985) eKLR where the court held that:-
“As a general rule, a contract affects only the parties to it and cannot be enforced by or against a person nor a party even if the contract is made for his benefit and purports to give the right to sue or to make him liable upon it”.
41.
The only tea bushes the Appellant had were 1,287, with a maximum yield of 1,634.5 kg. There was no registration of the other bushes or evidence of their existence. I find and hold that the Respondent was thus correct in finding that the excess tea was unexplained. The purpose of the audit is to ensure that there is no falsification of weights. Further, it avoids theft of tea from other farmers. The Appellant failed in his bid to introduce what he called new evidence. It is thus evident that the Appellant’s claim was untenable.
42.
The end result is that the Appellant was bound both by the Crops Act and the contract to register specific tea bushes. There was no evidence of the source of the extra bushes. The appeal is thus untenable, having found that the court below properly exercised its discretion.
43.
The issue of costs is governed by Section 27 of the Civil Procedure Act, which provides as follows:
(1)
Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2)
The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.
44.
The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -
“
(18)
It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.
45.
In the circumstances of this case, an award of costs of Kshs. 75,000/- to the Respondent is just and proper.
46.
In the upshot, I make the following orders: -
a.
The appeal lacks merit and is dismissed.
b.
The Respondent shall have costs of the appeal assessed at Ksh. 75,000/-.
c.
30 days stay of execution.
d.
File is closed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4482/eng@2025-04-07
Civil Appeal E066 of 2023,Kariuki v Gaturu (Civil Appeal E066 of 2023) [2025] KEHC 4517 (KLR) (7 April 2025) (Ruling),Ruling,High Court at Nyeri,High Court,LP Kassan,7 April 2025,2025.0,Nyeri,Civil,Sarah Wangari Kariuki v Peter Macharia Gaturu,[2025] KEHC 4517 (KLR),,"1.
I have read the entire High court file and it is true that the lower court set aside its judgment dated 20/12/2022. I asked for the lower ocurt file to understand the circumstances under which the judgment was set aside but I was only supplied with proceedings up to 23/12/2023.","2.
In my ruling which is a sub-suit of application for review, I clearly indicated that I had no typed proceedings and so I was at a disadvantaged position to determine some issues. this has clearly come out. I appreciate that this is among the files that came under RRI and time was of essence.
3.
This end, I shall order that the physical lower court file be supplied as soon as possible for me to write the ruling on review.
4.
For clarification on awards, I wish to state the following:
1.
The throw away costs was 10,000/- and not 15,000/-.
2.
This is a Nyeri matter.
3.
The ruling was delivered twice; just like all my matters under RRI that is on 3/7/2024 and 14/8/2024. The reason as to why I did this is because many advocates did not turn up on 3/7/2024 which was the first date of judgment. I directed notices be issued for 14/8/2024 for me to re-read the rulings/judgments.
4.
(Later) Parties still being absent – lower court file (physical copy) to be availed. Mention 16/6/2025.",Court issues further directions,https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4517/eng@2025-04-07
Reference E001 of 2024,In re National Land Commission (Reference E001 of 2024) [2025] KESC 12 (KLR) (21 March 2025) (Advisory Opinion),Advisory Opinion,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",21 March 2025,2025.0,Nairobi,CIvil,The National Land Commission vs The Honorable Attorney General and The Law Society of Kenya,[2025] KESC 12 (KLR),,"A. Introduction
1.
The Applicant, the National Land Commission (NLC), filed a request for an Advisory Opinion dated 21st March, 2024 on 25th March, 2024 pursuant to Article 163(6) of the Constitution. The Reference seeks answers to the following questions:
a.
What is the definition and scope of the word ‘Government’ for purposes of the Government Proceedings Act? ;
b.
Whether the applicant, being an independent constitutional commission/state organ constitutes or is part of ‘Government’ for purposes of the Government Proceedings Act; and
c.
Whether the applicant is protected and/or insulated from execution proceedings, attachment of its assets and/or garnishee of its accounts in satisfaction of a decree as provided under Section 21 and 25 of the Government Proceedings Act.
d.
The status of independent commissions in relation to the Government Proceedings Act, Cap 40 Laws of Kenya.
2.
In the Reference, NLC has stated that it is established under Article 67(1) of the Constitution, with the duty of, among others, to manage public land on behalf of the county and national governments. In the discharge of its functions, it has over the years received requests from government agencies as well as the national and county governments to facilitate compulsory acquisition of land pursuant to Article 40 of the Constitution as read with Part VII of the Land Act, No. 6 of 2012. In the process of compulsorily acquiring such land, the NLC is mandated to receive compensation funds from various acquiring entities for onward transmission to the affected land owners. The applicant thus opened and maintains an account for receiving payment and holding such deposits, being Account Number 01xxxxxxxxxx0 at National Bank, in trust for various designated recipients of compensation, pursuant to Section 111(1) (A) of the Land Act.
3.
The applicant urged that not every acquisition is always settled amicably, and therefore there is bound to be litigation and eventual court decrees to be satisfied by the applicant as an agent of the acquiring entities. The NLC set out the pending cases in court against it as over 3,300, in relation to compulsory acquisition litigation and several court decrees issued requiring compliance and settlement by the applicant.
4.
The applicant stated that its trust compensation account held at the National Bank has over time been under sustained attack in the nature of garnishee proceedings to satisfy pending court decrees. As a result of the numerous applications for execution and garnishee proceedings, the NLC averred that its functions have significantly been affected, hampering its administrative functions and threatening to grind it to a halt. It contended that its efforts to seek refuge under the provision of Sections 21 and 25 of the Government Proceedings Act have not yielded the desired result as the superior courts below have exhibited split schools of thought, on the one hand holding that the applicant is ‘government’ for purposes of the Act, and therefore insulated by the Act, while on the other hand, it has been held that the applicant is not ‘government’ and thus the provisions of the Act do not apply.
5.
It was the applicant’s contention that the uncertainty offends Article 201 (d) of the Constitution on prudent utilisation of public money thus requiring urgent resolution through an advisory opinion as opposed to the ordinary and lengthy adversarial process. It was also NLC’s case that a barrage of cases and applications for garnishee orders of its accounts continue to be filed for the numerous decrees pending settlement. According to it, the uncertainty and litigation threatens its day- to-day operations, a situation that is detrimental to finance and public administration, and the Reference is of utmost urgency as the resultant Advisory Opinion will guide litigants, state organs and other independent constitutional commissions on the applicability or otherwise of the Government Proceedings Act to them.
6.
The applicant listed the conflicting court decisions as follows:
i.
Eldoret High Court, Misc. Application No.29B of 2016- NLC vs. Prof. Tom Ojienda & Associates and others: the court held that NLC is a body corporate and an independent state organ and could not be therefore be construed as government or a government department, and is thus not protected by the Government Proceedings Act.
ii.
Milimani Civil Case No. 445 of 2014, Five Star Agencies Limited vs. NLC & Another: the court found that the NLC is a Government agency and subject to the Government Proceedings Act and therefore garnishee proceedings could not issue. An appeal on the matter is pending before the Court of Appeal.
iii.
Republic vs. NLC & 2 others Ex parte Cabin Crew Investments Limited [2019] eKLR: the court noted that the administration of public land had a public element and thus the NLC was a government department for purposes of Section 21 of the Government Proceedings Act.
iv.
Vivo Energy Limited (formerly known as Shell Kenya Limited) vs. National Land Commission [2020] eKLR: the court noted that independent constitutional commissions are part of government and thus satisfaction of decrees against them are to be done in conformity with the Government Proceedings Act.
v.
Rose Aoko Ogwang vs. National Gender and Equality Commission [2020] eKLR: the court took the view that the Government Proceedings Act applied only to the government and/or government department and thus independent commissions could not rely on the Act to defend attachment proceedings directed at them.
7.
The applicant, noting the above cases, contended that the pendency of any case before the superior courts below is not a hindrance to the Court exercising its advisory jurisdiction. It urged therefore that, the unique circumstances and the threat presented by the uncertainty expressed above, constitute matters of great public importance ripe for determination, which would not be ideal for the normal adversarial process.
8.
The applicant also urged that its request for an advisory opinion is pegged on the need for clarity on whether the NLC and other independent constitutional commissions constitute ‘Government’ for purposes of the Government Proceedings Act in light of Part 2, Item 6 of the Sixth Schedule on the transitional and consequential provisions under Article 262 of the Constitution. It added that, the Government Proceedings Act does not define the scope of ‘government’, while Section 3 of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya defines ‘government’ as “the Government of Kenya”.
9.
The applicant lastly averred that prior to the filing of the instant Reference, the applicant sought the advice of the Hon. Attorney General through its letter dated 15th December, 2023 on the question whether the National Land Commission is ‘Government’ and thus insulated from execution proceedings by dint of Section 21(4) of the Government Proceedings Act. By a letter dated 7th March 2024 the Attorney General opined that Constitutional Commissions and Independent Offices are part of Government, hence are within the purview of Section 21(4) of the Government Proceedings Act, but also recommended guidance by a higher Court given the contradicting decisions of the superior courts below.","C. Issues For Determination
25.
From the pleadings and the submissions, the following issues crystallised for our determination:
i.
Whether this Court has jurisdiction to render the advisory opinion and if so;
ii.
What is the definition and scope of the word ‘government’ for purposes of the Government Proceedings Act?;
iii.
Whether the applicant, being an independent constitutional commission/state organ constitutes or is part of ‘government’ for purposes of the Government Proceedings Act; and
iv.
Whether the applicant is protected and/or insulated from execution proceedings, attachment of its assets and/or garnishee of its accounts in satisfaction of a decree as provided under Section 21 and 25 of the Government Proceedings Act.
D. Analysis
i. Whether this Court has jurisdiction to render the advisory opinion
26.
The applicant seeks this Court’s Advisory Opinion on whether the term “government” under the Government Proceedings Act, Cap 40 Laws of Kenya includes constitutional commissions, such as the applicant, and if so, whether it is insulated from execution proceedings, attachment of its assets and/or the garnishee of its accounts in satisfaction of a decree under Sections 21 and 25 of the Government Proceedings Act.
27.
Section 21(4) of the Government Proceedings Act provides that:
“
(4)
Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs”.
Section 25(1) on the other hand provides that:
“
25.
Exclusion of proceedings in rem against the Government
(1)
Nothing in this Act shall authorise proceedings in rem in respect of any claim against the Government, or the arrest, detention or sale of any Government ship or aircraft, or of any cargo or other property belonging to the Government, or give to any person any lien on any such ship, aircraft, cargo or other property”.
28.
At the outset and before addressing the above sections, we have to determine whether, the jurisdiction of this Court to render an advisory Opinion has been properly invoked, and if so, whether the Court should exercise its discretion to render the Opinion as prayed. Towards this end, it is instructive to recall our decision in Re Matter of Gender Representation to the National Assembly & Senate; Advisory Opinion No. 2 of 2012, [2012] eKLR; wherein the following principles were laid down to guide the Court on the exercise of its jurisdiction under Article 163 ( 6) of the Constitution. At paragraph 83, the Court stated:
“
(i)
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government “will be determined by the Court on a case-by-case basis.
ii.
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae.
iii.
The Court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may if satisfied that it is in the public interest to do so, proceed and render an Advisory Opinion.
iv.
Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial Court process”.
29.
At paragraph 17 of the decision, the Court re-emphasized that:
“
Only a truly deserving case will justify the Court’s Advisory Opinion, as questions amenable to ordinary litigation must be prosecuted in the normal manner; and the Supreme Court ought not to entertain matters which properly belong to first-instance-Court litigation. Only by due deference to the assigned jurisdiction of the different Courts, will the Supreme Court rightly hold to its mandate prescribed in Section 3(c) of the Supreme Court Act, 2011 (Act No. 7 of 2011), of developing “rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth.”
30.
The 1st limb to the issue of jurisdiction is whether the National Land Commission has capacity to make a request for an advisory opinion. Article 260 of the Constitution describes a state organ to mean “a commission, office, agency or other body established under the Constitution”. Article 248 (b) lists the National Land Commission as being one of the independent commissions. Article 67 then establishes the National Land Commission while Article 67 (2) specifically lists its functions to be among others (a) to manage public land on behalf of the national and county governments.
31.
In National Land Commission v Attorney General & 5 others; Kituo Cha Sheria & another (Amicus Curiae) [2014] KESC 10 (KLR) we determined that from the National Land Commission’s status and standing it had the capacity to request an advisory opinion. We also held that the NLC being a state organ is entrusted with the function of managing public land on behalf of both the national and county government.
32.
In this case, the issues relate to the conversion of private property to public land through compulsory acquisition. Section 9 (1) (c) provides that land may be converted from private land to public land through compulsory acquisition. The Land Act further mandates the National Land Commission to pay out compensation for the said compulsory acquisition. Article 111 (1) & (2) specifically provides that:
“
(1)
If land is acquired compulsorily under this Act, just compensation shall be paid promptly in full to all persons whose interests in the land have been determined.
(2)
The Commission shall make rules to regulate the assessment of just compensation”.
33.
The conversion of private land to public land is for the benefit of both county and national government. The issue raised herein is therefore one involving county government as the same involve the administration and management of public land.
34.
Having determined that the applicant has capacity to make a request for an advisory opinion, the issues equally concern county government and noting that the applicant herein sought the advice of the Attorney General before instituting the Reference before us, the next question is whether the issues raised have been the subject of proceedings in the lower courts and whether the matter has been substantively determined by the decision of the lower courts.
35.
The applicant urged that the determination by the Court of Appeal in the Five Star agencies case (supra) is not a hindrance to this Court in exercising its advisory jurisdiction citing this Court’s decision in Re: Matter of Gender representation, the National Assembly and Senate (supra) where the court held that despite there being proceedings instituted in the lower courts a request for an advisory opinion can still be made. The Attorney General taking a contrary view submitted that in light of the decision of the Court of Appeal in the Five Star Agencies case (supra), it is not necessary to render an opinion on a matter that has been determined through the regular adversarial system and that the applicant is in any event not aggrieved by the decision of the Court of Appeal and is not in any danger of being denied the protection of the Government Proceedings Act.
36.
In the Five Star Agencies case (supra) the trial court issued an order of mandamus and also ultimately found that the NLC is a government agency and subject to the Government Proceedings Act and therefore garnishee proceedings could not issue. At the Court of Appeal one of the main issues for determination was Whether execution against the NLC can proceed by way of garnishee proceedings contemplated under Order 23 rule 1 of the Civil Procedure Rules 2010. The Court of Appeal determined that the certificate of order against the government is a mandatory condition precedent, the same was not obtained, and it thus follows that the trial court ought not to have issued an order of mandamus directed at the NLC.
It also ultimately found that the procedure adopted by Five Star Agencies in enforcing the decree issued by the trial court was wrong. Paragraphs 98 – 100 of the decision aptly captures the appellate court’s position on that issue as follows:
“
98.
In the present circumstances, Five Star did not obtain Certificate of Order against the Government from the trial court, which it was required to. Instead, it obtained a copy of the decree which it served upon the NLC. The obtaining of the said certificate was a condition precedent to the making and issuance of an order of mandamus. In our view, the trial court could only issue an order of mandamus after satisfying itself that the said certificate was issued and served. The trial court vide its ruling dated 13th December 2018 correctly held that a copy of the judgment dated 24th November 2014 and the decree issued on 16th December 2014 had been served on the NLC. However, the court did not satisfy itself as to whether a Certificate of Order against the Government had been obtained and served upon the NLC pursuant to the provisions of section 21 of the Government Proceedings Act. The certificate is mandatory and is a condition precedent to the issuing of an order of mandamus. It follows therefore that in the absence thereof, the trial court ought not to have issued an order of mandamus in favour of Five Star.
99.
Having noted as above, it follows therefore that the garnishee proceedings instituted by Five Star through the notice of motion dated 20th January 2023 and brought under the provisions of Order 23 Rule 1, 2, and 3 of the Civil Procedure Rules, 2010 were incompetent, bad in law and unsustainable as provisions of Order 23 Rule 1, 2, and 3 of the Civil Procedure Rules, 2010 do not apply in execution against the Government and/or State organs. Five Star ought to have commenced execution proceedings against the NLC in strict adherence with the provisions of section 21 of the Government Proceedings Act.
100.
We fully agree with Five Star that the Constitution of Kenya, 2010 under Article 40 (3) (b) (i) guarantees every person and/or entity whose land has been compulsorily acquired by the Government prompt payment in full, of just compensation. This obligation is replicated under section 111 and 115 of the Land Act. Five Star is, by all means, entitled to prompt payment in full of the compensation amount as assessed by the trial court. However, the procedure it adopted in enforcing the decree issued by the trial court was wrong. In upshot, therefore, we do not find merit in the argument advanced by Five Star that the provisions of section 21 of the Government Proceedings Act and Order 29 rule (2) of the Civil Procedure Rules, 2010 limits its right to prompt payment as stipulated under Article 40 (3) (b) (i) of the Constitution. The rationale for the requirement that there should be adherence with the procedure laid down under section 21 of the Government Proceedings Act cannot be gainsaid. See Kisya Investments Ltd (supra). This ground of appeal is therefore unmerited and must therefore fail” [ Our emphasis].
37.
The issues set out in the Five Star case (supra) are clearly related and pertinent to the issues raised in this Reference. The conflicting decisions cited by the applicant, herein, and which emanate from the High Court were considered by the Court of Appeal in its determination, and at paragraph 32 of its decision settled whatever confusion may have arisen in the past.
38.
We have equally considered the decision in Re: Matter of Gender representation, the National Assembly and Senate (supra) and we note that the dispute therein related to the general principles of the electoral system and the application of the two- third gender representation under Article 81 (b) of the Constitution. The question posed was whether the same should have been applicable in the general election, then slated for March 2013. The Court in the decision noted that there were decisions made by the High Court concerning the same subject. The cases in question were Federation of Women Lawyers & Others vs Attorney General 2011 eKLR where the court held that the two-thirds gender principle was subject to progressive realization, Centre for Rights Education and Awareness & Others vs. the Attorney General and Others (Nairobi High Court Constitutional Petition Number 16 of 2011); Milka Adhiambo Otieno & Another vs. The Attorney General & Another (Kisumu High Court Constitutional Petition Number 33 of 2011) and; Centre for Rights Awareness & Others vs. The Attorney General and Another (Nairobi High Court Constitutional Petition Number 208 of 2012 as consolidated with Nairobi High Court Constitutional Petition Number 207 of 2012 which held otherwise. In the circumstances and noting that the general election was fast approaching, a clear controversy persisted at the time the High Court rendered its determinations hence necessitating further legal clarification by way of an Advisory Opinion. In this case, the Court of Appeal has brought clarity to the issues sought in the Reference by issuing a conclusive and definitive decision. That case is therefore distinguishable from the instant one since there is a clear determination by the Court of Appeal hence establishing a binding precedent on the courts below it. That determination has not been set aside and remains the law on the subject.
39.
While we therefore acknowledge that there are instances where this Court can render an advisory opinion while there is a pre-existing dispute before the lower courts, the same can only be done in novel situations. The Court is equally hesitant to make a determination in any situation that will usurp the role of another court in the constitutional set- up. (See, In re Application by the County Assemblies of Kericho and Nandi Counties for an Advisory Opinion Under Article 163(6) of the Constitution of Kenya & In re Application by the Governor, Makueni County for an Advisory Opinion Under Article 163(6) of the Constitution the Governor, Makueni County (Reference 3 & 4 of 2020 (Consolidated)) [2021] KESC 61 (KLR) (16 March 2021) (Ruling)
40.
In addition to our findings above, we also note the applicant’s argument that the Supreme Court can still decide the issues herein to avert the likelihood of conflicting decisions emanating from the appellate mechanism, based on similar issues raised therein. To this issue we answer that, rendering an opinion on an issue in the pretext that there is a likelihood of conflicting decision arising in future will be urging us to act on mere speculation an invitation we decline to accept. Further, we reiterate that, in the hierarchy of courts and the principle of stare decisis, the High Court and courts below it, are bound by the decision of the Court of Appeal and this Court has been unequivocal in its respect for the hierarchy of courts in Kenya. In Peter Ngoge v. Ole Kaparo, Sup. Ct. Petition No. 2 of 2012, this Court affirmed the same as follows:
“
…The Supreme Court, as the ultimate judicial agency, ought in our opinion, to exercise its powers strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals……….In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court….”
41.
It is therefore our determination that the questions for which an opinion has been sought from us by the applicant herein have been answered by the decision in the Five star Agencies case (supra) and specifically that government under the Government Proceedings Act, Cap 40 Laws of Kenya includes constitutional commissions, such as the applicant, and it is therefore insulated from execution proceedings, attachment of its assets and/or garnishee of its accounts in satisfaction of a decree under Section 21 and 25 of the Government Proceedings Act.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/12/eng@2025-03-21
Petition 19 (E027) of 2021,Senate & 3 others v Speaker of the National Assembly & 10 others (Petition 19 (E027) of 2021) [2025] KESC 11 (KLR) (21 March 2025) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",21 March 2025,2025.0,Nairobi,CIvil,Senate & 3 others vs Speaker of the National Assembly & 10 others,[2025] KESC 11 (KLR),,"A. Introduction
1.
This appeal dated 23rd December, 2021 was filed by the appellants. The 6th and 8th respondents also jointly filed a cross appeal dated 8th March, 2022 while a second cross appeal dated 15th March, 2023 was filed at the instance of the 1st and 2nd respondents. It is necessary to mention that going by the date when the appeal was filed, it would have been determined way back, but was adjourned several times to allow the parties pursue an out of court settlement which did not materialise.
2.
The gravamen of the appeal and cross appeals revolves around the question of interpretation of Article 110(3) of the Constitution. More particularly, the scope and process of concurrence or joint resolution by the Speakers of the two Houses of Parliament as to whether a Bill concerns County Government as envisaged under the said Article. Concomitantly, the legislative role, if any, that the Senate plays with regard to money Bills under Article 114 of the Constitution.
B. Background
Factual History
3.
Following the promulgation of the 2010 Constitution and the establishment of a bicameral Parliament, disputes have arisen with respect to the legislative mandate of the two Houses of Parliament, that is, the National Assembly and the Senate. Central to the matter before us, is the extent of the legislative authority of each House. In that regard, it is contended that during the 12th Parliament, the National Assembly curtailed Senate’s legislative role in two significant ways. First, it passed several Bills, which were subsequently enacted into law, without the participation of the Senate contrary to the Constitution. Second, it declined to consider several Bills originating from the Senate, claiming they were money Bills that ought to originate in the National Assembly.","D. Analysis
61.
Having considered the pleadings, the impugned judgment, and the parties’ respective submissions, we find that the following issues arise for determination:
i.
Whether this Court has jurisdiction to entertain the appellants’ appeal.
ii.
Whether the 6th and 8th respondents’ cross appeal is properly before this Court.
iii.
Whether the Constitution provides for the participation of the Senate in the consideration and enactment of a money Bill.
iv.
Whether it is mandatory for every Bill published by either House of Parliament to undergo the joint concurrence process under Article 110(3) of the Constitution.
v.
Whether the impugned Acts and Bills are unconstitutional for want of Senate’s participation in their enactment.
vi.
What reliefs should issue?",Dismissed (with further directions),https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/11/eng@2025-03-21
Petition (Application) E038 of 2024,Sugawara v Kiruti (Sued in her Capacity as the Administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutarakwa Kiroti Lepaso and on her Own) & 3 others (Petition (Application) E038 of 2024) [2025] KESC 9 (KLR) (21 March 2025) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",21 March 2025,2025.0,Nairobi,CIvil,Sugawara v Kiruti (Sued in her Capacity as the Administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutarakwa Kiroti Lepaso and on her Own) & 3 others,[2025] KESC 9 (KLR),,"Upon perusing the Notice of Motion dated 27th January 2025 and lodged before this Court on 3rd February 2025, by the Applicants seeking orders inter alia:
That the application herein be heard and determined in limine and in priority to the Petition of Appeal dated 1st November 2024.
That this Honourable Court lacks jurisdiction to hear and determine the appeal herein under Article 163 (4) (a) of the Constitution.
That the Appeal/Petition of Appeal herein dated 14th November 2024 be struck out for want of jurisdiction as no certification or leave to appeal to the Supreme Court has either been sought or granted under Article 163 (4) (b) as read with Article 163 (5) of the Constitution, 2010.
That the cost of the application be borne by the Petitioner.","Affidavit and Submissions
Taking into account the affidavit in support of the Motion sworn by Nairuko Ene Mutarakwa Kiruti and written submissions both dated 27th January 2025, the main issue before the trial court and the Court of Appeal was whether the appellant could obtain title to the suit premises (Land References numbers Kajiado/Kitengela/10624, 10625, 10630, and 10631) under the doctrine of adverse possession. The issues considered by the High Court and the Court of Appeal were not questions of constitutional interpretation or application to warrant the institution of the present appeal as a matter of right. Issues touching on adverse possession are dealt with under Section 38 (1) of the Limitations of Actions Act. The appellant never asked the trial court to consider the unconstitutionality of Section 38 of the Limitations of Actions Act, and this Court cannot be the first point of call to ventilate the said issue.
Appellant’s Submissions
Upon considering the appellant’s replying affidavit dated 10th February 2025 and submissions dated 13th February 2025, it is argued that the Court is invited to settle conflicting decisions of the lower courts and address the failure of lower courts to address all issues raised by a litigant, such as whether Section 26 of the Limitations of Actions Act rendered the respondent’s counterclaim statute-barred. The appellant also argues that the Court of Appeal introduced the question of jurisdiction and the claim for adverse possession, which were not raised at the trial court.
Court's Jurisdiction
Bearing in mind that this Court in Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v. Attorney-General & 2 others [2020] KESC 9 (KLR) set out the following attributes for an appeal to this Court under Article 163(4)(a) of the Constitution:
The jurisdiction reveres judicial hierarchy and constitutional issues must have been raised and determined by the High Court in the first instance, with a further determination by the Court of Appeal.
Jurisdiction is discretionary in nature, and a party must categorically state aspects/issues that fall for determination on appeal.
A mere allegation of constitutional violations or citation of constitutional provisions does not bring an appeal within the jurisdiction of the Supreme Court under Article 163(4)(a).
Only cardinal issues of constitutional law or jurisprudential moment deserve the further input of the Supreme Court.
Challenges of findings on matters of fact by the trial court do not bring an appeal within the ambit of Article 163(4)(a).
Determination of the Appeal
The issues raised in the Magistrate’s Court related to ownership of the suit properties. The trial court found that the appellant did not establish ownership as there was no record of the sale agreement, Land Control Board consent, or payment of stamp duty. The High Court dismissed the appeal, finding that the trial court had no jurisdiction to hear claims for adverse possession and that the counterclaim was not statute-barred. The Court of Appeal noted that claims for adverse possession fall under the jurisdiction of the Environment and Land Court and not the Magistrates Court. The Court also upheld concurrent findings of fact by the trial and appellate courts.
Given the long history of the matter and the lack of a live controversy relating to constitutional interpretation or application, the Court found that it lacked jurisdiction to address the issues raised.
Cost of the Appeal
The respondents, being the successful parties, are entitled to costs of the appeal based on the principle in Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai Estate of & 4 others; SC Petition 4 of 2012; [2013] eKLR.
Final Orders
Consequently, the following orders are made:
The Applicant’s Notice of Motion dated 27th January 2025 and filed on 3rd February 2025 is allowed as prayed.
The Petition of Appeal dated 14th November 2024 and filed on 2nd December 2024 is hereby struck out.
The appellant shall bear the costs of the appeal.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/9/eng@2025-03-21
Application E004 of 2024,Boit & another v Muyesu (Application E004 of 2024) [2025] KESC 8 (KLR) (14 March 2025) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",14 March 2025,2025.0,Nairobi,CIvil,Boit & another v Muyesu,[2025] KESC 8 (KLR),,"The Notice of Motion application, filed on 8th November 2024 and dated 16th July 2024, seeks a review of the Court of Appeal Ruling (Sichale, Achode, and Korir JJ.A) dated 2nd February 2024. This ruling declined to certify the matter as raising issues of public importance, and the application seeks leave to appeal against the Court of Appeal's judgment delivered on 9th July 2021 (Koome, Mohammed, and Kantai JJ.A). The application is made under Article 163(4) of the Constitution, Section 19 of the Supreme Court Act, Rules 24 and 26 of the Supreme Court Rules, and Rules 5(2) and 40 of the Court of Appeal Rules.
In the application, the applicants argue that the intended appeal raises critical issues that are of general public importance. They contend that the judgment of the Court of Appeal is erroneous, contradicts relevant statutes, and creates precedents that could significantly affect the legal landscape, especially concerning land agreements. The applicants challenge the decision of the appellate court, which they claim overlooked key trial court findings and introduced uncertainties in legal principles related to contracts and land law.","Upon reviewing the application, supporting affidavit, and the submissions of both parties, it is clear that the central issue involves the application of contractual and legal principles, especially with regard to land agreements and the consent of the Land Control Board. The applicants argue that the appellate court's decision has created ambiguity, particularly with the concept of constructive trust in the context of written and oral agreements.
The Court of Appeal had earlier dismissed an application for review, stating that it was essentially an appeal disguised as a review. The applicants then sought leave to appeal to the Supreme Court, citing public interest. However, the Supreme Court found that the issues presented were not of public importance, and no legal uncertainties were created by the appellate court’s judgment. The matter, based on an agreement made in 1997, was ruled to be governed by settled legal principles concerning land transactions and the applicability of parole evidence.
Furthermore, the Supreme Court held that once the applicants chose to pursue a review of the appellate decision, they were precluded from pursuing an appeal on the same matter. The court also emphasized that allowing this appeal would undermine the finality of legal processes and unnecessarily prolong litigation.
Ultimately, the Supreme Court dismissed the application, ruling that the issues raised were not sufficiently novel or significant to warrant certification for appeal. The applicants were ordered to bear the costs of the motion, adhering to the principle that ""costs follow the event.""",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/8/eng@2025-03-14
Application E001 of 2025,Julius v Chief Registrar of the Judiciary & 14 others (Application E001 of 2025) [2025] KESC 7 (KLR) (14 March 2025) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",14 March 2025,2025.0,Nairobi,CIvil,Julius v Chief Registrar of the Judiciary & 14 others,[2025] KESC 7 (KLR),,"This Court, on 18th January 2024, communicated to Mr. Ahmednasir Abdullahi SC regarding his relentless campaign in the broadcast, print, and social media that scandalized, ridiculed, and outrightly denigrated the Court. The Court indicated that action would be taken against him.
Following this communication, the Court, on 23rd January 2024, issued an order where all seven (7) judges recused themselves from hearing Zehrabanu Mohammed S.C. (Suing as the executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi & Anor vs Nathaniel K. Lagat & 4 Others SC Petition No. 17 (E021) of 2022, consolidated with Petition No. 24 (E027) of 2022), as long as Mr. Ahmednasir Abdullahi SC, or any person associated with his firm, was appearing. Similar orders were issued on 25th January 2025 for the case of Fatuma Athman Abud Faraj vs Rose Faith Mwawasi & 2 Others SC Petition No. E035 of 2023.
In light of these developments, the applicant filed a Notice of Motion on 3rd January 2025, seeking a review of the Court's recusal decision, as set out in the January 2024 and January 2025 orders. The application was based on several constitutional provisions and statutory sections, requesting the review or setting aside of the recusal decision and any consequential administrative communication by the 1st respondent.","Whether the Motion as filed is procedurally flawed
The applicant argued that a 'miscellaneous application' was the appropriate route for collateral issues. However, Supreme Court Rules 2020 specify that interlocutory applications should be anchored on an existing petition or appeal. Rule 31 of the Supreme Court Rules requires that interlocutory applications be filed with written submissions, and the application should be made in the context of an ongoing appeal or petition. The applicant's filing was not aligned with the prescribed procedures, making the application procedurally flawed. Additionally, Section 21A of the Supreme Court Act emphasizes that review applications should be made in cases where judgments or orders were made under misrepresentation or incompetence, which was not the case here.
Whether a non-party to proceedings has the legal standing to seek a review of the Court’s decision
The applicant, not being a party in the original proceedings, was found to lack locus standi. The Court referenced the case of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others, where the issue of locus standi was determined to be crucial for jurisdiction. Since the applicant did not have a direct, substantiated interest in the recusal decision, the Court concluded that the applicant could not seek a review.
Whether the Motion meets the threshold for granting the orders sought
Given the procedural flaws and lack of locus standi, the application was deemed defective and was struck out. The absence of responses from the respondents and the Court's earlier ruling on similar matters led to the conclusion that no further action would be taken on the application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/7/eng@2025-03-14
Application E026 of 2024,Mombasa Cement Limited v Ramji & 3 others (Application E026 of 2024) [2025] KESC 5 (KLR) (Civ) (14 March 2025) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",14 March 2025,2025.0,Nairobi,CIvil,Mombasa Cement Limited v Ramji & 3 others,[2025] KESC 5 (KLR),,"Filing and Legal Basis
The Court considered the Originating Motion dated 4th October 2024 and filed on 9th October 2024 pursuant to Article 163(4)(b) & (5) of the Constitution, Sections 3, 15, 15B, 23(2B) & 24 of the Supreme Court Act, and Rules 3, 32, 33, 36 & 37 of the Supreme Court Rules, 2022. The motion sought a review of the Court of Appeal’s decision made on 20th September 2024, which declined to certify the intended appeal in Nairobi Civil Appeal No. 590 of 2019 as raising matters of general public importance.
Applicant’s Submissions
The application was supported by an affidavit sworn by the applicant’s Manager, Evans Francis Muigai, and submissions dated 23rd October 2024. The applicant argued that the Court of Appeal's rulings contradicted the Supreme Court’s decision in the Dina Management Case and conflicted with its own past judgments. Further, the applicant raised concern that fresh evidence of fraud and illegality was ignored, infringing on constitutional rights under Article 50 and Article 159(3).
Public Interest and Legal Issues Raised
The applicant contended that the matter was of general public importance regarding the legal consequences of referencing different parcels of land in a transfer deed. It cited several precedents on the necessity of procedural fairness and the importance of courts adhering to natural justice.
Additional Submissions
The applicant also argued that the Court of Appeal’s ruling created legal uncertainty regarding the enforceability of oral contracts under Section 3(3) of the Law of Contract Act, contrary to previous decisions allowing for part performance to suffice.
Respondents’ Opposition
The 1st to 3rd respondents, through an affidavit by Bharat Ramji and submissions dated 26th November 2024, opposed the application. They argued the application failed to meet the threshold for certification, raised new issues not previously determined, and reintroduced previously dismissed allegations of fraud.
Nature of Dispute
The dispute concerns property LR No.11895/50, which the applicant claimed to have purchased and occupied since 2010. The Court of Appeal had overturned a ruling from the Environment and Land Court that had recognized the applicant’s counterclaim and proprietary interest.","Ownership History and Competing Claims
The suit property was initially part of LR No.11895/24, allegedly sold to the 1st to 3rd respondents. The applicant counterclaimed ownership, citing prior dealings with NSSF over LR No.11895/25. The trial court had ruled in the applicant’s favor, but this was reversed on appeal.
Allegations of Fraud and Title Validity
The applicant accused the respondents of fraud, citing discrepancies in the Transfer Deed. However, the Court of Appeal found these to be clerical errors. The Supreme Court reiterated that fraud is a factual issue, requiring specific evidence and pleading, which was not sufficiently demonstrated to raise matters of general public importance.
Fresh Evidence and Procedural Concerns
The Court acknowledged the applicant’s attempt to introduce new evidence but emphasized that it was procedurally incorrect to seek certification based on material not part of the record under review.
Constitutional Violations
Alleged violations of Articles 25(c) and 28 were also deemed to be factual and specific to the parties. The Court maintained that constitutional issues must follow the appellate pathway and meet jurisdictional requirements under Article 163(4)(a).
Threshold for Certification
The Court reiterated that an apprehension of injustice does not suffice for certification under Article 163(4)(b). The issues raised did not demonstrate a transcendence beyond the specific dispute to justify Supreme Court intervention.
Final Determination
The Court affirmed the decision of the Court of Appeal declining certification.
It found no substantial questions of law or general public importance.
Each party was ordered to bear its own costs.
Orders: i. The Originating Motion dated October 4, 2024, is dismissed.
ii. Each party to bear its own costs.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/5/eng@2025-03-14
Application E025 of 2024,Sicpa SA v Public Procurement and Administrative Review Board & 2 others (Application E025 of 2024) [2025] KESC 4 (KLR) (14 March 2025) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",14 March 2025,2025.0,Nairobi,CIvil,Sicpa SA v Public Procurement and Administrative Review Board & 2 others,[2025] KESC 4 (KLR),,"Upon perusing the applicant’s Motion dated 23rd September, 2024 filed under Articles 50, 159(d) and 163(4)(a) of the Constitution, Sections 3A, 15B and 21A of the Supreme Court Act, and Rules 15(2), 33 and 36 of the Supreme Court Rules, the applicant seeks an order of extension of time to file an appeal from the decision of the Court of Appeal in COACA E474 of 2024 delivered on 2nd August, 2024.
Upon considering the grounds in support of the application and the supporting affidavits sworn on 23rd September, 2024 by Lilian Atogo (General Manager) and Kithinji Marete (Counsel), and the submissions of even date, it is noted that:
The applicant was aggrieved by the decision of the Court of Appeal and filed a Notice of Appeal on 15th August, 2024, transmitting it to the Supreme Court Registry on 21st August, 2024.
The applicant was required to file its appeal by 16th September, 2024, but due to a miscalculation based on the date of transmission, the appeal was erroneously set for filing on 20th September, 2024.
In the intervening period, counsel for the applicant encountered personal challenges involving his wife's medical emergency, necessitating urgent travel between 17th and 19th September, 2024.
The mistake came to light on 20th September, 2024, and the present application was promptly filed on 23rd September, 2024.
The applicant argues that:
The delay of 7 days is not inordinate and should not be visited upon the client.
The appeal is arguable, raising significant constitutional issues under Articles 10, 27, 50, 201, and 227.
The respondents will suffer no prejudice as they were served with the notice of appeal on 15th August, 2024.
The 1st respondent objects, asserting:
The matter does not involve constitutional interpretation or general public importance.
Section 175(4) of the PPAD Act renders the Court of Appeal’s decision final in procurement matters and prohibits further appeal.
The 2nd and 3rd respondents support the 1st respondent’s position and emphasize the legislative intention for procurement matters to be expeditiously handled under the PPAD Act.
In rebuttal, the applicant contends:
The respondents have not challenged the reasons for the delay.
Jurisdictional questions raised by the respondents should be addressed in the main appeal, as per Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others (2014).
Constitutional issues such as discriminatory eligibility criteria and double jeopardy under Articles 2, 10, 27, 50, and 227 were raised and merit Supreme Court adjudication.","Guided by Rule 38(1)(a) and Rule 15(1) and (2) of the Supreme Court Rules, 2020, and the principles in the Nicholas Salat Case, the Court considered:
Extension of time is a discretionary, equitable remedy.
The applicant bears the burden of justifying the delay.
The delay must be reasonably explained and brought without undue delay.
Potential prejudice to the respondents.
Public interest, where applicable.
Having reviewed the facts and arguments:
The Court confirms the judgment under appeal was delivered on 2nd August, 2024, with the notice of appeal filed on 15th August, 2024.
The appeal was due by 16th September, 2024, but due to an error in date calculation and personal emergencies, was delayed by 7 days.
The reasons for the delay, including the advocate’s urgent travel due to medical issues, are plausible and not contested by the respondents.
The respondents challenge the merits of the intended appeal rather than the reasons for delay.
The Court reiterates that:
Whether the appeal falls within the Court’s jurisdiction under Article 163(4)(a) is a matter for determination in the substantive appeal.
A respondent cannot seek to strike out an intended appeal during an extension of time application.
The Court finds the delay reasonable and not inordinate. The applicant has laid a sufficient basis for the exercise of discretion in its favor.
Orders
The Notice of Motion dated 23rd September, 2024 and filed on 24th September, 2024 is allowed.
The applicant is granted leave to file and serve the intended petition/appeal within fourteen (14) days from the date of the ruling.
Costs of the Motion shall abide the outcome of the intended appeal.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/4/eng@2025-03-14
Petition (Application) E005 of 2023,Stanbic Bank Kenya Limited v Santowels Limited; Kenya Bankers Association (Intended Amicus Curiae) (Petition (Application) E005 of 2023) [2025] KESC 14 (KLR) (14 March 2025) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala,I Lenaola, W Ouko",14 March 2025,2025.0,Nairobi,CIvil,Stanbic Bank Kenya Limited v Santowels Limited; Kenya Bankers Association (Intended Amicus Curiae),[2025] KESC 14 (KLR),,"Judgment in SC Petition No. E005 of 2023:
On 28th June 2024, the Supreme Court delivered a judgment in SC Petition No. E005 of 2023, dismissing the substantive appeal. The Court held that interest rates on loans and facilities advanced by banks/financial institutions are subject to regulatory oversight under Section 44 of the Banking Act. Further, such institutions must obtain approval from the Cabinet Secretary before increasing interest rates on loans or facilities.
Review Application by Appellant:
Following this decision, the appellant filed a Notice of Motion on 4th September 2024 seeking a review or amendment of the portion of the judgment relating to the requirement of Cabinet Secretary approval, or alternatively, clarification on the same.
Application by Kenya Bankers Association (KBA):
On 30th September 2024, the Kenya Bankers Association sought to be joined as amicus curiae in the appellant's review application. KBA also requested that its amicus brief be accepted as duly filed and considered by the Court.
KBA’s Supporting Affidavit and Submissions:
KBA’s Acting CEO Raimond Molenje supported the application, highlighting the association's expertise in banking regulation and its neutral stance. KBA contended that its input would help the Court in determining the issue of prospective overruling, a matter not addressed by either party.
Respondent's Objection:
The respondent objected to the application, arguing that KBA had previously failed to join as an interested party and was now improperly attempting to re-enter the proceedings under the guise of amicus curiae. The respondent further argued that allowing the application would violate the principle of finality in litigation, introduce prejudice, and contravene Rule 54 of the Supreme Court Rules.
Applicable Legal Principles:
The Court considered Rule 19 of the Supreme Court Rules, 2020, and its precedent in Trusted Society of Human Rights Alliance vs. Matemo & 3 others [2015], which outlines the principles for admitting an amicus curiae, including neutrality, timing, and contribution to legal development.","Inconsistency in KBA’s Role:
The Court noted that KBA had earlier sought to be joined as an interested party and was denied. It held that KBA could not now switch its position to claim neutrality as amicus curiae within the same proceedings.
Scope of Amicus Contribution Misaligned:
The Court found that the arguments KBA wished to make regarding prospective overruling were distinct from the specific review sought by the appellant. Therefore, KBA’s proposed brief did not align with the purpose of the review application.
Violation of Finality in Litigation:
Allowing KBA’s application at the post-judgment stage would prejudice the other parties and undermine the principle of finality in litigation.
Limits on Post-Judgment Intervention:
Based on Section 21A of the Supreme Court Act and the Outa v. Okello case, the Court concluded that there are strict limitations on post-judgment intervention, including by amici.
Costs:
Invoking its discretion and principles from Rai & 3 others vs. Rai & 4 others [2014], the Court directed that each party should bear its own costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/14/eng@2025-03-14
Petition (Application) E005 of 2023,Stanbic Bank Kenya Limited v Santowels Limited (Petition (Application) E005 of 2023) [2025] KESC 3 (KLR) (14 March 2025) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, I Lenaola & W Ouko, SCJJ",14 March 2025,2025.0,Nairobi,CIvil,Stanbic Bank Kenya Limited v Santowels Limited,[2025] KESC 3 (KLR),,"Whereas this Court by a Judgment dated 28th June 2024 in SC Petition No. E005 of 2023 dismissed the appeal and settled the substantive issue arising in the following terms:
“[70] In conclusion on this issue, we find that interest rates on loans and facilities advanced by banks/financial institutions are subject to the regulatory process under Section 44 of the Banking Act. In addition, that such banks/financial institutions are required to seek the Cabinet Secretary’s approval under Section 44 of the Banking Act prior to increasing interest rates on loans and/or facilities advanced to its customers.”;
And whereas upon considering the Notice of Motion brought by the applicant dated 4th September 2024 after the dismissal of the appeal, expressed to be brought under Sections 3A and 21A of the Supreme Court Act, Cap 9B and erroneously invoking Rules 3, 24, 25(2) and 28 instead of Rule 28(5) of the Supreme Court Rules 2020, for orders:
Spent;
That this Court be pleased to review and amend that portion of its Judgment and the Order therein dated 28th June 2024…
In the alternative, that Court be pleased to clarify the said portion;
That the Court be pleased to grant such further or other orders as it deems just;
There be no orders as to costs;
And upon reading the affidavit in support of the Motion sworn by the applicant’s Head of Legal, Janet Wanjohi Kabiru, on 4th September 2024 and its submissions of even date asserting:
That under Section 21A and its inherent jurisdiction per Section 3A of the Supreme Court Act, and drawing on the Outa Case, the Court can review its own decision;
That Section 44 of the Banking Act requires prior Cabinet Secretary approval before increasing banking charges;
That legislative changes since 2003 have effectively delegated this power to the CBK Governor through circulars, regulations, and Legal Notice No. 35 of 2006;
That Article 231 of the Constitution supports CBK’s independence and its Governor’s role in regulating banking charges;
That the judgment under review contradicts the legal framework established by this delegation and potentially nullifies all interest rate approvals by CBK Governor;
And upon reviewing the respondent’s Replying Affidavit and submissions dated 20th September 2024, opposing the Motion on grounds that:
The Motion raises no new issues and merely re-argues already adjudicated matters;
It improperly seeks an appeal in the guise of a review;
That delegation of power to the CBK Governor does not override express statutory wording assigning approval authority to the Cabinet Secretary;
That the legal instruments cited by the applicant were either ultra vires or do not supplant the statutory framework;
And that any actions by the CBK Governor contrary to the delegation terms are ultra vires;
And upon considering the applicant’s further affidavit and submissions of 27th September 2024 reiterating:
That the application is not for an appeal but for clarification of an apparent omission;
That the CBK Governor has acted within his delegated authority;
And that Section 44 is applicable as decided by the Court, but the power has lawfully been delegated.","Bearing in mind the jurisdiction of this Court under Section 21A of the Supreme Court Act and Rule 28(5) of the Supreme Court Rules, 2020, and the principles in the Outa Case, we reaffirm:
The Supreme Court, generally, does not review its own decisions except in cases involving fraud, nullity, mistaken consent, or reliance on repealed/concealed law;
Rule 28(5) permits review only in exceptional, meritorious, and public interest cases;
The applicant’s Motion does not satisfy the threshold for review as it cites no fraud, deceit, misrepresentation, or reliance on repealed/concealed law;
Section 21A was erroneously invoked. The correct provision should have been Section 21(4) (the Slip Rule) which allows for correction of minor clerical or typographical errors, not substantive reinterpretation;
The Motion instead attempts to relitigate and reinterpret the core finding of the judgment, which is not permissible under Rule 28(5);
Accordingly, the Court finds that the application lacks merit and dismisses the Motion in its entirety. There shall be no order as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/3/eng@2025-03-14
Petition E006 of 2024,Ngao v Kitheka (Petition E006 of 2024) [2025] KESC 1 (KLR) (31 January 2025) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",31 January 2025,2025.0,Nairobi,Civil,Ngulungu Kitheka Ngao vs Alexander Matuvi Kitheka,[2025] KESC 1 (KLR),,"Bearing in mind that this ruling is in respect of the Notice of Preliminary Objection dated 28th May 2024 and raised by the respondent challenging this Court’s jurisdiction to entertain the appeal. And that, at the commencement of the hearing of the appeal on 23rd October 2024, the Court, considering the nature of the objection directed that the objection be taken in limine, quite in line with its previous dicta and the provisions of the Supreme Court Act as well as the Rules of the Court; that the question of jurisdiction can be raised at any stage of the proceedings; that the Court has inherent power to summarily dismiss a petition, reference or an application, which are wholly defective; and that in exercise of that inherent power, and depending on the nature of the objection, the Court can either deal with the question in limine or hear the objection alongside the appeal. See Trattoria Limited vs. Maina & 3 others [2022] KESC 75 (KLR) and Megvel Cartons Limited vs. Diesel Care Limited & 2 others [2023] KESC 24 (KLR); and
2.
Noting in addition that the Petition dated 6th March, 2024 and filed on 19th April, 2024 has been brought pursuant to Article 163(4)(a) of the Constitution, Section 15(2) of the Supreme Court Act, Cap 9B and Rule 33 of the Supreme Court Rules, 2020 to challenge the Judgment of the Court of Appeal delivered on 25th January, 2024 in which it affirmed the decision of the Environment and Land Court (ELC) to the effect that a constructive trust existed in favour of the respondent, a younger brother of the appellant; and
3.
Taking into account the following background that led to the dispute: According to the appellant, he was the registered owner of the suit property known as Matinyani/Mutulu/475 (parcel 475), having bought it in 1975. His main grievance was that on or about January 1998, the respondent unlawfully trespassed, entered the suit property without his consent, and started cutting down trees, burning charcoal and even building a house. In addition to the suit property, the appellant further contended that in 1984, he purchased another parcel of land No. Matinyani/Mutulu/476 (parcel 476), upon which the respondent again trespassed. As a result, the appellant filed a suit before the Principal Magistrate’s Court at Kitui in Civil Case No. 311 of 2004 seeking orders to evict the respondent and also to restrain him permanently by an order of injunction from laying claim to the suit property; and
4.
Considering the respondent’s defence and counterclaim that he was in possession of the suit property; that in 1974 he, jointly with the appellant, purchased parcels Nos. 475 and 476; and that he allowed the appellant to have the parcels registered in his name thereby creating a trust in the respondent’s favour. Consequently, he sought a declaration that the appellant held the titles to the two properties in trust for him and further, that the titles to the two properties be transferred to him. He also sought that the appellant be restrained by an order of permanent injunction from interfering with his possession of the suit property; and
5.
Upon considering these competing claims, the trial court by a Judgment delivered on 1st December 2011, dismissed the appellant’s claim for eviction and injunction but found instead that the respondent had proved his counterclaim on a balance of probabilities and granted the reliefs sought; and
6.
Dissatisfied, the appellant appealed to the Environment and Land Court (ELC) in Civil Appeal No. 2 of 2018. The ELC (Angote J.) in a judgment delivered on 15th February, 2019 upheld the decision of the trial court, dismissed the appeal and reiterated that, from the facts of the case there was a common intention to create a trust, therefore a constructive trust existed; and
7.
Aggrieved further, the appellant preferred a second appeal to the Court of Appeal in Civil Appeal No. 152 of 2019. In determining the single question; whether the courts below properly invoked the doctrine of constructive trust, the Court of Appeal was of the view that the conclusion reached by the ELC was indeed correct; that a common intention had been established that pointed to the existence of a constructive trust; and that the case fell within the exception in Section 26 of the Registered Land Act (repealed). In the end, the Court of Appeal found that the appeal had no merit and dismissed it with costs to the respondent; and
8.
Undeterred, the appellant has now filed the instant third appeal before this Court on five (5) grounds, contending that the learned Judges of Appeal erred in law by violating his constitutional rights to property and fair hearing under Articles 40 and 50 of the Constitution, respectively. He has also filed written submissions dated 14th June 2024 and replying affidavit deposed on 26th June 2024, in which he has reiterated that the appeal is filed pursuant to Article 163(4)(a) of the Constitution as it involves the application and interpretation of Articles 25(c), 40 and 50 of the Constitution; that the constitutional questions under the cited provisions are traceable in all the judgments of the three courts right from the Magistrate’s Court, the ELC and finally the Court of Appeal; that this Court has an opportunity to render itself on what constitutes a question of law; whether the conclusions reached were not supported by the established facts or evidence on record; and whether the conclusions reached were so perverse or so illegal that no reasonable tribunal would arrive at the same; and
9.
Upon considering the respondent’s Notice of Preliminary Objection dated 28th May, 2024 contending that the Court lacks jurisdiction to entertain the Petition and therefore it ought to be struck out or dismissed with costs. In addition, the respondent has also filed Grounds of Opposition dated 28th May, 2024 as well as written submissions wherein, it is contended that the appeal does not fall within the provisions of Article 163(4)(a) of the Constitution, Section 15(2) of the Supreme Court Act and Rule 33 of the Supreme Court Rules, cited by the appellant, since in all the matters litigated at every level, from the Magistrate’s court through to the Court of Appeal, no issues of interpretation or application of the Constitution ever arose; that the word ‘Constitution’ was never mentioned even once in all the three Judgments of the courts below; and that all the determinations were based on evidence and fact, purely on the question of the ownership of the suit property and whether the case met the threshold of a constructive trust; and
10.
Appreciating, that an appeal under Article 163 (4)(a) of the Constitution will lie as of right only where there is a question as to the interpretation or application of the Constitution. And that this Court in Wanga vs. Republic [2024] KESC 38 (KLR) emphasized this requirement as follows:
iii
…
iv.
Article 163 (4) of the Constitution is not a thoroughfare for all intended appeals from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution or those that can be said to involve matters of general public importance will be entertained by the Supreme Court. It is not the mere allegation in pleadings by a party that clothes this Court with jurisdiction. See Lawrence Nduttu & 6000 Others vs. Kenya Breweries Ltd & Another, SC Petition No. 3 of 2012; [2012] eKLR, Samuel Kamau Macharia and Another vs. Kenya Commercial Bank and 2 Others, SC Application No. 2 of 2011; [2012] eKLR, among many other decisions.
v.
The appeal must originate from a decision of the Court of Appeal in which the question of interpretation or application of the Constitution was at play. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163(4)(a).
vi.
However, in the case of Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others, SC Petition No. 2 of 2014; [2014] eKLR, it was clarified that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the Court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.
iv.
In addition, a party must indicate to this Court in specific terms, the issue requiring the interpretation or application of the Constitution and must signal the perceived difficulty or impropriety with the Appellate Court’s decision. See Zebedeo John Opore vs. Independent Electoral and Boundaries Commission & 2 Others [2018] eKLR.
v.
The Supreme Court retains the discretion to determine what matter is appealable to it under Article 163(4)(a), always bearing in mind that such a matter must be founded on cogent issues of constitutional controversy to warrant its input. See Gladys Wanjiru Munyi vs. Diana Wanjiru Munyi [2015] eKLR.”","Upon reflection on the Preliminary Objection and rival arguments by the parties on both sides, we opine as follows:
i.
Applying the foregoing principles to the instant appeal, we note that the genesis of the dispute was the alleged trespass by the respondent on the suit property which the appellant also claimed to be his. The respondent for his part maintained that he had, jointly with the appellant purchased the suit property; and that the latter held it in trust for him. The trial court found in favour of the respondent holding that he had established the existence of a trust. On a first appeal, the ELC agreed with the trial court. Likewise, on a second appeal, the Court of Appeal affirmed the decision of the ELC.
ii.
Throughout the proceedings before the three courts below, the central issue was whether the suit property, registered in the appellant's name, was held by him in trust for his brother, the respondent. The determination of this question entailed a factual examination and analysis of evidence to ascertain whether indeed there was a common intention, an agreement, joint payment of consideration towards the purchase price, and occupation of the suit property. Considering the factual nature of the pleadings, proceedings and the decisions of the courts below, we cannot, in our assessment say that the issues in contention concerned the application or interpretation of the Constitution. Indeed, none of the three judgments allude to any provision of the Constitution. The reasoning and ultimate conclusions of the Court of Appeal did not take a trajectory of constitutional interpretation or application.
iii.
But before us, the appellant has urged us to find that his rights under Articles 25(c), 40 and 50 of the Constitution were violated; and violated by the Court of Appeal. First, the Court of Appeal was never a party to the proceedings. Second, but more fundamentally, the appellant has not demonstrated that the issues at the core of this appeal were the same issues in controversy and around which both the ELC and the Court of Appeal based their respective decisions.
iv.
An examination of the five grounds upon which this appeal was brought leaves no doubt in our mind that the invocation of Articles 25(c), 40 and 50 of the Constitution was not only inappropriate but also inapplicable. Those grounds seek to draw the Court into factual analysis and consideration of the record, quite outside the ambit of a third appeal. The appellant’s case appears to have mutated upon reaching this Court, from a claim of trust to a violation of constitutional rights.
v.
Based on the foregoing, we reach the inescapable conclusion that the appellant has not satisfied the strictures for the application of Article 163(4)(a) of the Constitution, with the result that we down our tools at this stage, without the need to consider the merits of the appeal. In the end, we uphold the Preliminary Objection.
vi.
On costs, we underscore the fact that an award of costs is an exercise of discretion and follows the principle set out by this Court in Rai & 3 others vs. Rai & 4 others [2014] KESC 31 (KLR), that costs follow the event. In exercise of our discretion, we direct that the appellant shall bear the costs of this appeal.
12.
Accordingly, we make the following orders:
i.
The Notice of Preliminary Objection dated 28th May 2024 is hereby upheld.
ii.
The Petition dated 6th March, 2024 is hereby struck out for want of jurisdiction with costs to the respondent.
iii.
We hereby direct that the sum of Kshs. 6,000 deposited as security for costs upon lodging of this appeal be refunded to the depositor.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/1/eng@2025-01-31
Petition (Application) E022 of 2024,Kenya Wildlife Service v Sea Star Malindi Limited (Petition (Application) E022 of 2024) [2024] KESC 80 (KLR) (20 December 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, N Ndungu, I Lenaola, W Ouko",20 December 2024,2024.0,Nairobi,Civil,Kenya Wildlife Service vs Sea Star Malindi Limited,[2024] KESC 80 (KLR),,"Before This Court are two applications filed by both parties. Though brought separately, they are intertwined and to make good use of judicial time, we shall proceed to dispose of both of them in this ruling.
2.
Upon Considering the respondent’s Notice of Motion dated 28th June 2024 filed under Sections 3A and 20(1) of the Supreme Court Act, Cap 9B, Rules 3(5) and 13(1) of the Supreme Court Rules, 2020 where it seeks to have the Appeal, Record of Appeal, both dated 24th May 2024 and the Supplementary Record of Appeal dated 6th June 2024 struck out for failing to meet this Court’s jurisdictional threshold, being incomplete and filed out of time; and
3.
Upon Further Considering the grounds in support of the application and the supporting affidavit sworn by Michele Marchioro on even date and submissions of similar date and further submissions dated 18th July 2024 to the effect that the issue before the superior courts below did not deal with the interpretation or application of the Constitution and therefore falls afoul the jurisdictional threshold set out in Article 163(4)(a) of the Constitution and elaborated in Lawrence Nduttu & 6000 Others v Kenya Breweries Limited & Another, SC Petition No. 3 of 2012; [2012] eKLR; therefore the appeal can only fall under Article 163(4)(b) of the Constitution but the appellant did not seek, obtain or attach proof of such certification that the appeal raises a matter of general public importance; in addition, in line with this Court’s decision in the case of Gilbert Mwangi Njuguna v Judicial Service Commission & Attorney General, SC Petition No. 10 of 2019; [2020] KESC 52 (KLR), while the appellant filed the Notice of Appeal on 25th April 2024, it filed its Record of Appeal on 3rd June 2024 outside the statutory timelines rendering them a nullity; and
4.
Bearing In Mind the appellant’s replying affidavit sworn by Benta Musima, its Acting. Corporation Secretary, on 12th July 2024, submissions of even date and further submissions dated 18th July 2024 to the effect that the issue before the Court of Appeal involved the interpretation and application of the Constitution and the Court of Appeal’s decision took a trajectory of constitutional interpretation or application, that is, whether the appellant violated the respondent’s right to property and the remedy(ies) available thereof; that the Appeal therefore invokes and meets the appellate jurisdiction threshold set out in Article 163(4)(a) of the Constitution; that in the circumstances this Court has jurisdiction to hear and determine the appeal; that further, the Appeal, Record of Appeal and Supplementary Record of Appeal were filed on time; and
5.
Taking Into Account the appellant’s Notice of Motion dated 16th July 2024 and brought under Section 23(1)(a) of the Supreme Court Act and Rule 31 of the Supreme Court Rules seeking a stay of execution of the judgment and orders of the Court of Appeal in Malindi Civil Appeal No. E018 of 2022 Kenya Wildlife Service v Sea Star Malindi Limited; and
6.
Further Taking Into Account the grounds on the face of the application, the supporting affidavit sworn on 16th July 2024 by Benta Musima, the submissions dated 25th July 2024 and further submissions dated 22nd August 2024 to the effect that the appellant had met the threshold for issuance of orders of stay of execution as set out in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, [2014] eKLR, that is, the appeal is arguable with a high chance of success, if stay is not granted, the appeal will be rendered nugatory because the decretal sum of Kshs.421,179,039.15/= is colossal, and executing for the said amount would cripple the appellant’s business which had become overwhelming over time owing to increased human-wildlife conflict; that moreover, being a State institution funded from taxpayers’ funds or donor funds, public interest tilts in favour of granting stay of execution since executing the decree would negatively affect Kenya’s wildlife conservation efforts; that, the budgetary allocations are not enough to meet its resource requirements and it has to rely on donor support for the deficit; that further, the application is not premature since execution is a risk given that the appellant does not enjoy the immunity afforded by the Government Proceedings Act; that the respondent is unlikely to refund the sums owing as its means are unknown; and
7.
Bearing In Mind the respondent’s grounds of opposition dated 16th August 2024, replying affidavit sworn by Michele Marchioro on 16th August 2024 and submissions dated 19th August 2024 contending that the application does not meet the test set out in the Gatirau Peter Munya Case (Supra); that the application is premature since there is a pending application to strike out the Appeal, Record and Supplementary Record of Appeal, and the execution process is the subject of Judicial Review under the Government Proceedings Act which process has not been commenced; that in addition, the appellant did not serve the subject application on 7th August 2024 as per the Court’s directions; that the application is mala fides because the appellant has had over 26 years to make good the claim and mitigate their exposure but instead, continues to rely on protecting national resources at the respondent’s expense; that in any event, the decretal sum is yet to be ascertained through a decree to be issued by the Deputy Registrar, Court of Appeal; that, in any event, the appellant is acting in bad faith since the parties were in negotiations on how to settle the decretal sum only for the appellant to file the present application; that, lastly, the appellant has not offered any security for the payments; and","Having Considered the totality of the applications, the responses and submissions put forth, We Now Opine as follows:
a.
For good order, we shall begin with the respondent’s application dated 28th June 2024.
b.
Rule 38(1) of the Supreme Court Rules provides that an appeal shall be lodged with this Court within 30 days of filing the notice of appeal, where the appeal is as of right. Rule 12 of the Supreme Court Rules on its part provides that documents shall be filed in both printed and electronic form. In the instant case, the appellant filed the Appeal and Record of Appeal electronically on 24th May 2024 which was within the 30-day statutory timeline, but submitted printed copies on 10th June 2024. Going by our decision in Kenya Hotel Properties Limited v Attorney General & 5 Others, (Application 2 (E004) of 2021; [2021] KESC 49 KLR, where we held that filing is complete once the electronic and printed copies are filed, in this case, filing of the Appeal, Record of Appeal was completed on 10th June 2024. Therefore, filing was completed approximately 15 days out of time.
c.
In Kenya Airports Authority v Otieno, Ragot & Company Advocates, SC Petition (Application) No. E011 of 2023; [2023] KESC 104 (KLR), we reiterated that court orders and directions on filing and service of documents should be followed. That said, this Court can exercise its power under Section 21 of the Supreme Court Act and Rule 65 of the Supreme Court Rules and issue such orders or directions as would regularize the case bearing in mind that this Court has an obligation to ensure parties reasonably access justice.
d.
In our view, the delay of 15 days cannot be said to be inordinate and the respondent has not established what prejudice it stands to suffer or has suffered. In the circumstances, and in the interests of justice, we invoke our powers under Section 21 of the Supreme Court Act and Rule 65 of the Supreme Court Rules and order that the Appeal, Record and Supplementary Record of Appeal be admitted and deemed to have been filed within time.
e.
On the question of jurisdiction, we note that the appellant has invoked this Court’s appellate jurisdiction under Article 163(4)(a) of the Constitution. The appellant alleges that the trajectory of the Court of Appeal’s decision ushers in the interpretation and application of the Constitution. The respondent, on the other hand, posits that the matter as presented before the superior courts below, did not substantively deal with the constitutional interpretation or application. Therefore, according to the respondent, the appeal can only be brought under Article 163(4)(b) of the Constitution which is a matter of general public importance, for which, the appellant had not sought certification.
f.
According to the record of appeal, the respondent’s further re- amended plaint dated 27th March 2006 and appellant’s defence dated 3rd November 1998, the respondent was the registered proprietor of land parcel LR No. 3170. On or around 9th November 1997, the appellant caused armed wardens to take physical possession of a portion the land under construction, stop the ongoing construction of a hotel and to keep guard thereon. This was premised on the allegation that the portion under construction encroached on a statutorily protected area in line with Legal Notice No. 99 of 1968 that designated a-100ft from the highest watermark on the land adjoining the Indian Ocean as a protected zone under the Wildlife Conservation and Management Act Cap 376 of the Laws of Kenya, and hence an exclusive Government zone under the appellant’s jurisdiction. Subsequently, by Sea Star Malindi Limited v Kenya Wildlife Services & 2 Others, High Court Miscellaneous Civil Suit No. 982 of 1997; [2002] eKLR, the Court (Onyango, J. (as he then was)) (Judicial Review Case) held that the suit land extended to the high- water mark and as such, the 100 feet area did not exist and so, Legal Notice No. 99 of 1968 did not apply to it. For that reason, the Court held that the appellant acted ultra vires and interfered with the respondent’s enjoyment of its property and violated Section 75 of the Constitution. In Sea Star Malindi Limited v Kenya Wildlife Services & Another Malindi ELC Case No. 6 of 2016 (ELC), the ELC relied on this decision that was delivered during the pendency of its proceedings and held that it settled the question of liability. Consequently, the ELC proceeded to determine the issue of damages which it awarded as follows: Kshs.90,000,000/= for the reconstruction of the hotel, and Kshs.30,000,000/= as general damages.
g.
By a majority judgment delivered on 12th April 2024, the Court of Appeal in Civil Appeal No. E018 of 2022, the Court (Nyamweya, Gatembu, Odunga JJA.) delineated several issues for determination. To our minds, the crux of the matter before the Court of Appeal was whether the ELC erred in relying on the Judicial Review case and extrapolating its determination on liability to the suit before it. That said, we take cognizance of various issues. First, the Judicial Review case held that the appellant’s acts violated Section 75 of the Constitution. The ELC relied wholly on this exposition and held that it settled the question of liability. Secondly, the Court of Appeal acknowledged the Judicial Review case decision to the effect that the appellant’s acts violated the respondent’s constitutional right and also constituted a tort. It went further to speak to damages as a proper remedy for constitutional violations under Article 23(3) (e) of the Constitution and the applicable principles.
h.
Having held as above, we find that indeed, the suit took a trajectory of constitutional interpretation and application. Therefore, the appellant has properly invoked this Court’s jurisdiction under Article 163(4)(a) of the Constitution.
i.
Concerning the appellant’s application for stay of execution, Section 23A of the Supreme Court Act vests this Court with the requisite jurisdiction to grant the said orders. The test for grant of stay of execution was set out in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others (supra) as follows: the appeal or intended appeal is arguable and not frivolous, unless stay is granted, the appeal or intended appeal will be rendered nugatory should it eventually succeed, and it is in the public interest that stay be granted.
j.
The gist of the appeal, as we understand it, is whether the Court of Appeal erred in relying on and adopting the rationale in the Judicial Review case in ascribing liability to the appellant; awarding the respondent Kshs.3,000,000/= as compensation for violation of its rights; and, affirming the ELC’s award of Kshs.90,000,000/= as compensation for the reconstruction of the respondent’s hotel. Without delving into the merits of the appeal, we find that the foregoing issue warrants this Court’s consideration. Therefore, we find that the appeal is arguable.
k.
While no evidence has been placed before the Court that the decretal sum is well over Kshs.400,000,000/=, we acknowledge that the sum of Kshs.93,000,000/= together with interest is in itself a colossal sum from a public body without the attendant comfort that it can be recovered it found not due to the respondent. Further, as the dispute involves a statutory body funded by public coffers as rightly advanced by the appellant to which any monies paid out are subject to budgetary allocation. Being a public body, it is not necessary to offer security and in particular of such an amount, as to itself be an impediment to access to justice as we held in Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others (Petition 16 (E023) of 2021) [2023] KESC 11 (KLR) . To that extent therefore, we find that the application for stay has met the 3-prong test.
l.
However, we take cognisance of the period this matter has been in the court system, that is from 15th August 1998. To ensure that justice is dispensed expeditiously, we deem this matter fit to be heard on priority basis.
1.
In line with our decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition Application No. 4 of 2012; [2014] eKLR, we order that the costs shall abide the outcome of the appeal.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/80/eng@2024-12-20
Petition (Application) E008 of 2024,Likowa v Aluochier & 2 others (Petition (Application) E008 of 2024) [2024] KESC 79 (KLR) (20 December 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",20 December 2024,2024.0,Nairobi,Civil,"Charles Owino Likowa vs Isaac Aluoch Polo Aluochier, Vincensia Awino Kionge, County Assembly of Migori",[2024] KESC 79 (KLR),,"Upon perusing the Notice of Motion dated July 30, 2024by the 1st respondent, filed on July 31, 2024 and seeking the admission of additional evidence; and
2.
Upon perusing the grounds on the face of the application, the affidavit sworn by the 1st respondent on July 30, 2024 in support thereof, and the submissions of even date, wherein it is asserted that the present application is a reiteration of a previous one filed on May 20, 2024, to which the court has allegedly not rendered a decision; that the request for the admission of additional evidence is made pursuant to section 20 of the Supreme Court Act, cap 9B, the said evidence comprising of the returned nomination papers of eight (8) candidates who duly submitted their papers within the nomination period, which closed at 9:00 AM on September 19, 2022; that the proposed additional evidence is directly relevant to the issues before the court and has the potential to influence or materially impact its decision; that the additional evidence emerged following the parties’ engagement in an out of court settlement; that this evidence removes any ambiguity or uncertainty surrounding the case, is credible, has merit and was previously withheld by the 2nd and 3rd respondents and furthermore, it reveals deliberate deception to the Court; and
3.
Taking into account the petitioner’s grounds of opposition dated August 20, 2024 and submissions of even date to the effect that the jurisdiction of the court to admit additional evidence has not been properly invoked, as a similar application dated May 20, 2024, was dismissed with reasons provided in a ruling dated July 26, 2024; consequently, the subsequent Motion amounts to an appeal against that ruling and therefore, the 1st respondent’s remedies lie solely within the Court’s review jurisdiction; and in any case, the issues intended to be addressed through the additional evidence have been rendered moot, as there is no ongoing dispute between the petitioner and the 1st respondent, the petitioner having vacated the office of Speaker of the County Assembly of Migori, and Christopher Odhiambo Rusana elected to the position on May 28, 2024; and
4.
Noting the written submissions of the 3rd respondent dated August 20, 2024 wherein they reiterate the sentiments of the petitioner save to add that the application constitutes a gross abuse of the court process; that no additional evidence is required for this court to render a merit-based decision on the remaining issues in the present appeal, particularly in light of the changed circumstances; that the 1st respondent, failed to present any evidence before the trial court to support his constitutional petition and consequently, the matter of introducing additional evidence does not arise; that while the court has powers under rule 26 of the Supreme Court Rules 2020 to admit and or call for additional evidence, that power is exercised sparingly and on a case by case basis and a party must lay a basis for the same; that the Court can still pronounce itself on the issues which the 1st respondent had raised without resorting to the additional evidence; that the appeal dated March 18, 2024, along with the cross-appeal, constitute second appeals, wherein only issues of law may be raised, however, the so-called additional evidence is being introduced in a second appeal and pertains to matters of fact; that therefore the Motion is frivolous, vexatious and ought to be dismissed with costs; and","We now opine as follows:
i.
We take cognizance of the fact that the present application is a replica of the one dated May 20, 2024, which this court conclusively determined by its ruling dated July 26, 2024. In the circumstances, the instant application is a disguised appeal against the said ruling and as such the application is a blatant abuse of court process. In any event, having already declined to grant the 1st respondent leave to adduce additional evidence, the subject matter of the present application, is spent.
ii.
Furthermore, we can only reaffirm our findings in the ruling dated July 26, 2024, emphasizing that the petitioner having been impeached by the Members of the County Assembly of Migori on April 23, 2024 followed by the election of a new Speaker on May 28, 2024, the 1st respondent’s application has been overtaken by events. It is also clear that the issues raised in the present application do not relate to the appeal before us. The Motion raises a whole new cause of action arising from the Standard Newspaper advertisement dated May 15, 2024 calling for the election of a new Speaker for the County Assembly of Migori following the impeachment.
7.
Consequently, and for the reasons aforesaid, we make the following Orders:
i.
The Notice of Motion dated July 30, 2024 and filed on July 31, 2024 is hereby dismissed.
ii.
The 1st respondent shall bear the costs of this application.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/79/eng@2024-12-20
Petition (Application) 12 (E014) of 2022,Barclays Bank of Kenya Limited (Now ABSA Kenya PLC) v Commissioner of Domestic Taxes(Large Taxpayers Office); Kenya Bankers Association & another (Interested Parties) (Petition (Application) 12 (E014) of 2022) [2024] KESC 78 (KLR) (13 December 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko",13 December 2024,2024.0,Nairobi,Civil,"Barclays Bank of Kenya Limited (Now ABSA Kenya PLC) vs Commissioner of Domestic Taxes(Large Taxpayers Office), Kenya Bankers Association, Mastercard Asia Pacific PTE Limited",[2024] KESC 78 (KLR),,"Upon perusing the Notice of Motion dated August 23, 2024by the respondent, filed on August 26, 2024pursuant to sections 21 and 24 of the Supreme Court Act 2011, rules 3(2), 3(5), 15(2), 15(1), 23(3), 31 and 32 of the Supreme Court Rules, 2020 seeking leave for extension time to file their submissions; and
2.
Upon perusing the affidavit sworn by George Ochieng, counsel on record for the respondent, on August 23, 2024in support of the Motion and written submissions of even date and further affidavit sworn on September 10, 2024and further submissions of even date wherein they contend that the respondent’s submissions were filed on August 23, 2024instead of the stipulated date of August 22, 2024; that the delay was occasioned by counsel’s inadvertent oversight of the prescribed timelines, compounded by a period of illness that hindered the completion of the respondent’s written submissions as initially scheduled; that a genuine mistake of counsel should not be visited upon the respondent who is desirous of ventilating its case on merit; that relying on the case Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR), the delay was not inordinate since there were valid reasons for the said delay and lastly, no prejudice would be suffered by the other parties; and
3.
Taking into account the replying affidavit sworn by Wilson Murage, the petitioner’s Senior Legal Counsel, on September 2, 2024and the written submissions of even date opposing the Motion wherein the petitioner contends that the respondent has failed to establish a proper basis for the delay, as no application for extension of time was made prior to the expiration of the stipulated timelines. Furthermore, that the respondent ought to have presented a doctor’s report and in the absence of one, a sick sheet from a pharmacy does not suffice; and
4.
Noting the replying affidavit sworn by Raimond Molenje, the Ag Chief Executive Officer of the 1st interested party, on the September 3, 2024 and the written submissions of even date opposing the Motion wherein 1st interested party contends that the respondent was, in fact, required to file their submissions by August 14, 2024 as opposed to August 22, 2024 as asserted, representing an eight- day delay beyond the stipulated deadline; that this court will be sanctioning an illegality by allowing the submissions that had already been filed without leave to remain on record; and that extension of time is an equitable remedy which is only available to the deserving party; and
5.
Appreciating that this court is clothed with unfettered discretion under rule 15(2) of the Supreme Court Rules to extend the time for filing any document; and that the principles that govern the exercise of such discretion as delineated in the Salat Case are as follows:
“
…
1.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
2.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3.
Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
4.
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
5.
Whether there will be any prejudice suffered by the respondents if the extension is granted;
6.
Whether the application has been brought without undue delay; and
7.
Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”","We now opine as follows:
i.
Upon review of the record, it is undisputed that the respondent filed their submissions on August 23, 2024 following a mention of the matter before the Honourable Deputy Registrar on the same date, during which any further extension of time to file any pleading in the matter was denied. Counsel for the respondent has attributed the delay to an inadvertent oversight of the prescribed deadlines, compounded by a period of illness that hindered the timely completion of the submissions, as evidenced on the record of August 23, 2024. Counsel has urged that this oversight should not prejudice his client.
ii.
While the petitioner and the 1st interested party take a contrary stance, we give the respondent’s counsel the benefit of doubt as an officer of the court. Consequently, we find that the respondent has adequately established a plausible reason for the delay. Moreover, the delay was neither unreasonable nor inordinate.
iii.
Based on the foregoing, we are inclined to exercise our discretion by extending time within which the respondent is to file its submissions. Towards this end, the respondent is hereby granted seven days from the date of this ruling, within which to file and serve its submissions. Both the petitioner and the 1st interested party shall have seven days from the date of service, within which to file any responses thereto.
iv.
Taking into account the foregoing and this court’s decision in Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), we deem it just to order that costs of the motion shall abide the outcome of the appeal.
7.
Consequently, and for the reasons aforesaid, we make the following orders:
i.
The Notice of Motion dated August 23, 2024 and filed on August 26, 2024 is hereby allowed.
ii.
Costs of the Motion shall abide the outcome of the appeal.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/78/eng@2024-12-13
Petition (Application) E009 of 2024,Freedom Limited v Mbarak (Petition (Application) E009 of 2024) [2024] KESC 76 (KLR) (13 December 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko",13 December 2024,2024.0,Nairobi,Civil,Freedom Limited vs Omar Awadh Mbarak,[2024] KESC 76 (KLR),,"Upon reading the Notice of Motion dated 28th August, 2024 and filed on 29th August, 2024, expressed to be brought pursuant to Sections 3A and 20 of the Supreme Court Act, Cap 9B, Rules 3(2), 26 and 31 of the Supreme Court Rules, 2020, the inherent powers of the Court and all other enabling provisions of the law, in which the applicant is seeking orders that:
i.
The Honourable Court be pleased to grant leave to the applicant to adduce additional evidence being documents to be introduced through an affidavit supporting the Petition.
ii.
Upon grant of leave, this Honourable Court be pleased to admit the following additional documents to be filed through an affidavit sworn by the applicant:
a.
Letter dated 26th March 2023, by the applicant to the Chief Land Registrar requesting for certified copies of documents, plans and correspondence in relation to land parcel No. 287/V/MN (the Original Parcel) and the subsequent subdivisions thereof.
b.
An inventory of documents dated 9th April 2024 prepared by the Directorate of Land Administration in the Ministry of Lands, Public Works, Housing and Urban Development in respect of land parcel No. 287/V/MN.
c.
Various documents annexed to the aforementioned inventory of documents dated 9th April 2024.
d.
Letter dated 8th April 2024 by the applicant to the Director of Survey requesting for certified copies of survey records, correspondence and any documents relating to the original parcel No. 412/Section V/MN, Parcel No. 1948/Section V/MN and Parcel No. 2028/ Section V/MN.
e.
Survey report dated 15th April 2024 by the Director of Surveys in respect of the original parcel, Parcel No. 412/Section V/MN, Parcel No. 1948/Section V/MN, Parcel No. 2028/Section V/MN and Parcel No. 2838/Section V/MN.
iii.
The costs of and incidental to this application be provided for; and
2.
Upon examining the grounds on the face of the application; the supporting affidavit of Harji Govind Ruda, the applicant’s director, deposed on 28th August 2024; his supplementary affidavit sworn on 12th September 2024; and the applicant’s submissions dated 28th August 2028, all to the effect that: the central issue for determination before the Environment and Land Court (ELC) was the contested ownership of the suit property between the applicant and the respondent with the ELC finding in favour of the applicant; the Court of Appeal in setting aside that decision, termed all the title documents presented by the parties before the ELC as unreliable and instead, proceeded to determine the appeal based on an unpleaded doctrine of seisin thereby overturning the ELC’s decision; while doing so, the Court of Appeal highlighted multiple uncertainties and doubts over the rival title documents that had been sighted and analyzed by the ELC; it is these uncertainties that the additional evidence, if allowed to be adduced, is intended to clarify; the additional evidence is of relevance to the issues in the appeal and will assist the Court to determine the legality of the transactions recorded on the mother title and the authenticity of the root title to the suit property which the Court of Appeal avoided to address even after expressing doubts over the competing title documents that were before it; that the evidence intended to be presented is likely to settle the factual and legal questions that are in dispute in the appeal; the documents in question comprising the correspondence file, together with the survey report and records, will enable the Court to fully appreciate the ownership trajectory of the original parcel and to determine whether indeed the respondent’s grandfather acquired the suit property and was in possession; and
3.
Further, that the intended additional evidence could not be obtained with the exercise of reasonable diligence for use at the trial as the applicant neither had possession nor access to the inventory of documents, the original parcel’s correspondence file or the survey report and records, prior to the filing of the petition; that as a point in fact, at the time of the hearing before the ELC, the deed file in respect of the original parcel that was supposed to be domiciled at the Mombasa land registry was lost; moreover, all other documents relating to the historical ownership of the original parcel had been lost; that in initiating the suit before the ELC, the applicant depended on a file which had been reconstructed on the strength of a court order on the basis of the applicant’s title documents which were in its possession; that the new evidence does not introduce new substance to the dispute rather, it is aimed clarifying the authenticity of all the documents presented before the trial court; that the evidence is credible as it emanates from official public documents from the Ministry and is not voluminous; that the introduction of this evidence is needed to forestall the injustice occasioned to the applicant by the Court of Appeal as the court disregarded title documents and relied on unpleaded issues thereby denying parties a fair trial; that the introduction of this additional evidence will not prejudice the respondent; and that the applicant has satisfied the threshold under Section 20 of the Supreme Court Act and the principles for additional evidence as enunciated in the case of Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamad & 3 others, [2018] KESC 62 (KLR) (Mohamed Abdi Mahamud Case); and
4.
Upon reviewing the respondent’s replying affidavit sworn by Omar Awadh Mbarak on 6th September, 2024 and his submissions dated 9th September, 2024 in opposition to the Motion to the effect that: the estate of the late Mbarak Awadh Salim is the legal owner of the suit property and that the respondent claims ownership on behalf of his grandfather (the deceased); that the Court of Appeal rightfully declared him as the owner of the suit property; that he was neither party nor privy to the proceedings granting to the applicant an order of reconstruction of the parcel file; that it was false for the applicant to aver that all other documents relating to the history of ownership of the original parcel had been lost or could not be established, given that the respondent produced the original title to the suit property at the ELC; that it is equally false for the applicant to aver that it was not required to go to the root of the title to the original parcel before purchasing it; and that if the applicant is allowed to adduce the additional evidence, the respondent stands to suffer immense and irreversible prejudice; and
5.
Further noting the fact that the respondent maintains that the applicant has not met any of the conditions precedent under Section 20 of the Supreme Court Act and the principles for adducing additional evidence in the Mohamed Abdi Mahamud Case for the reasons that: the documents sought to be adduced are irrelevant to the appeal before this Court and are unlikely to influence or impact upon the result of the verdict; that the applicant has been indolent in advancing its case and the new evidence is meant to fill gaps in the applicant’s evidence whereas this is a second appeal which should purely be on matters of law and not points of fact; that admission of the documents listed in the applicant’s Motion is tantamount to sanctioning litigation by installments; and that given the applicant’s indolence, it is undeserving of leave to adduce additional evidence; and","Having considered the Motion, affidavits and rival arguments summarized in the preceding paragraphs we now opine as follows:
i.
As a general rule, parties to litigation must bring forward their whole case, and will not (except under special circumstances) be permitted to open the same subject of litigation in respect of matters which might have been brought forward at the trial.
ii.
The admission of additional evidence on appeal before this Court is regulated by the provisions of Section 20 of the Supreme Court Act and Rule 26 of the Supreme Court Rules, 2020. The former empowers the Court to admit further evidence, which the Court considers necessary and appropriate in the circumstances. The section requires that, in admitting additional evidence, the Court shall consider whether the additional evidence —
“
(a)
is directly relevant to the matter before the Court;
b.
is capable of influencing or impacting on the decision of the Court;
c.
could not have been obtained with reasonable diligence for use at the trial;
d.
was not within the knowledge of the party seeking to adduce the additional evidence;
e.
removes any vagueness or doubt over the case;
f.
is credible and bears merit;
g.
would not make it difficult or impossible for the other party to respond effectively; and
h.
discloses a case of wilful deception to the Court”.
iii.
To these strictures, the Court has espoused the following further criteria to be considered in an application of this nature:
“
a.
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
b.
whether a party would reasonably have been made aware of and procured the further evidence in the course of the trial is an essential consideration to ensure fairness and due process;
c.
where the additional evidence discloses a strong prima facie case of willful deception of the court;
d.
the court must be satisfied that the additional evidence is not utilized for the purpose of removing the lacunae and filling gaps in evidence. The court must find the further evidence needful;
e.
a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in the appeal, fill up omissions or patch up the weak points in his/her case;
f.
the court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”
See the Mohamed Abdi Mahamud case (supra).
iv.
Applying these principles to the Motion, it is evident that the material sought to be introduced consists of documents, plans, and correspondence in relation to land parcel No. 287/V/MN (the Original Parcel) and the subsequent sub-divisions thereof. These documents are aimed at addressing certain questions raised by the Court of Appeal as to the authenticity of the applicant’s Certificate of Ownership; and the propriety of the process which was adopted by the Registrar of Titles to facilitate the reconstruction of file to the suit property, based on documents supplied solely by the applicant.
v.
The applicant, having initiated the action, first before the High Court for the reconstruction of the file and subsequently before the ELC claiming ownership of the suit property as against the respondent’s rival claim was expected, indeed, required to bring the entire evidence at that initial stage to support that claim.
vi.
The applicant has not demonstrated that the additional evidence it seeks to adduce could not have been obtained with reasonable diligence for use at the trial or could not have otherwise been produced earlier. To the contrary, within a short time of the applicant writing to the relevant government departments, the documents were supplied, confirming that they were always available.
vii.
By its admission, the applicant pleads that the additional evidence it wishes to present could not have been obtained and introduced before the trial court “because its necessity has only been brought about by the skewed decision of the Court of Appeal which has decided to disregard documents of title and instead determine a matter concerning property on a medieval doctrine of seisin… that the applicant had no way of predicting that the Court of Appeal would render such a skewed decision and veer away from the title documents which had been produced and analysed by the ELC”.
viii.
The documentary evidence sought to be introduced is therefore in direct answer to the questions raised by the Court of Appeal in its impugned judgment. Parties cannot use the window provided for by Section 20 and Rule 26 aforesaid to fill the lacuna or patch up parts of the evidence of the unsuccessful party. The rule of thumb is that additional evidence will be required to do justice between the parties.
ix.
It is on record that the only file that could not be traced at the Mombasa Land Registry during the proceedings before the trial court, was the Deed File in respect of the original parcel. Nothing has been said about the status of that file. There is, however, no evidence of any attempts by the applicant, prior to the delivery of the Court of Appeal judgment, to procure the multiple documents in the Correspondence File that it now wishes to produce.
x.
Further, the applicant has averred that the Correspondence File and Survey Report, “were not necessary documents that needed to be submitted before the ELC because the applicant was not required to go to the root of the title of the suit property.” That, since the applicant was successful in the ELC, its title to the suit property was valid, and there was no necessity or requirement for it to introduce any document before the Court of Appeal as proof of the transactions that took place in the Original Parcel prior to the applicant acquiring it.
xi.
It is a requirement under Section 20, Rule 26 aforesaid and the ratio decidendi in Mohamed Abdi Mahamud (supra) that only evidence that is directly relevant to the matter before the Court would be considered for admission. The applicant has not illustrated how the new evidence will assist the Court in determining the authenticity of the root title of the suit property, over and above the material already on record and upon which the two superior courts below based their respective decisions.
xii.
For the foregoing reasons, it is our considered opinion that the evidence sought to be adduced does not meet the established threshold as the documents in question will lead to the Court considering in a second appeal matters of fact; their relevance to this appeal is doubtful; their introduction will be tantamount to filling the gaps identified in the judgment of the Court of Appeal; the evidence has always been available and could have easily been obtained; and it has not been demonstrated in what way it will impact on the decision of this Court.
xiii.
Looking at the nature of the additional evidence, we doubt that it would be of any use to this Court in reaching a fair and final decision on the dispute between the parties. The two superior courts below based their respective decisions upon the evidence presented by the parties, the ELC finding in favour of the appellant and the Court of Appeal for the respondent. Based on this fact, we are being asked in this appeal to determine, on the basis of the material on record, whether or not the Court of Appeal erred in its determination as to the ownership of the suit property. We believe this question is capable of being answered without the introduction of further evidence.
xiv.
On costs, we underscore the fact that an award of costs is an exercise of discretion and follows the principle set out by this Court in Rai & 3 others vs. Rai & 4 others [2014] KESC 31 (KLR) that costs follow the event. In exercise of our discretion, we direct that the applicant shall bear the costs of this Motion.
7.
Accordingly, we make the following orders:
i.
The Notice of Motion application dated 28th August, 2024 be and is hereby dismissed.
ii.
The Applicant shall bear the costs of this application.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/76/eng@2024-12-13
Election Petition (Reference Application) E004 of 2024,Independent Electoral and Boundaries Commission v Attorney General & another (Election Petition (Reference Application) E004 of 2024) [2024] KESC 77 (KLR) (13 December 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",13 December 2024,2024.0,Nairobi,Civil,"Independent Electoral and Boundaries Commission vs Attorney General, Centre for Legal Aid and Clinical Legal Education (CLACLE) at Kabarak University Law School",[2024] KESC 77 (KLR),,"Cognisant that, His Excellency the President of the Republic of Kenya published a Gazette Notice No 2641 dated February 27, 2023, appointing members of the Selection Panel for the recruitment of nominees for appointment as Chairperson and Members of the Independent Electoral and Boundaries Commission (IEBC) following vacancies in the said positions. That subsequently, the Selection Panel placed a public advertisement in various local dailies, the Kenya Gazette, and on the Parliamentary Service Commission’s website inviting applications for the said positions. However, before the recruitment process was completed, a suit was filed in the High Court, Abdullahi v Attorney General & 2 Others (Constitutional Petition E148 of 2023) [2024] KEHC 434 (KLR) (Abdullahi case), wherein the petitioner therein contended that the Selection Panel and the Parliamentary Service Commission had deliberately slowed down the recruitment process; and by a judgment dated January 26, 2024, Thande, J issued orders inter alia that -
“
...
3.
A mandatory order be and is hereby issued to the selection panel for the recruitment of nominees for appointment as the chairperson and members of the Independent Electoral and Boundaries Commission take immediate measures and/or steps to undertake the nomination exercise and to submit for appointment successful applicants for the positions of members and chairperson of the Independent Electoral and Boundaries Commission as to make it possible for the Commissioners to be in office.”
2.
Noting that, the recruitment for nominees as well as the appointment of the Commissioners is still pending despite the aforementioned order; IEBC did on March 6, 2012 vide Legal Notice No 14 of 2012 publish the National Assembly Constituencies and County Assembly Wards Order, 2012 (the delimitation order); and in line with article 89 of the Constitution, IEBC was required to conduct the delimitation of constituencies and wards between March 6, 2020 (being the minimum period of 8 years after the March 6, 2012 delimitation order) and March 6, 2024 (being the maximum period of 12 years after the March 6, 2012 delimitation order). Nonetheless, IEBC has not been able to undertake the delimitation process within the set timelines; and
3.
Further noting that the aforementioned circumstances led to IEBC filing the reference herein which seeks this court’s advisory opinion on the following issues:
a.
Whether IEBC can undertake the process of delimitation of electoral boundaries and other electoral processes in the absence of Commissioners or the requisite quorum of Commissioners;
b.
Whether IEBC can conduct a review of the names and boundaries of constituencies and wards when timelines envisaged under article 89(2) and 89(3) as read with section 26 of the County Governments Act have lapsed; and
c.
Whether the constitutional timelines envisaged under the provisions of article 89(2) and 89(3) as read with section 26 of the County Governments Act can be extended, and if so, by whom and under what circumstances.
4.
Moreover, while the aforesaid reference is pending, the instant notice of motion dated July 25, 2024 was filed on August 1, 2024 pursuant to rule 19 of the Supreme Court Rules, 2020 seeking the following orders:
i.
Leave be granted for admission of the Centre for Legal Aid and Clinical Legal Education (CLACLE) at Kabarak University Law School as amicus curiae in the Advisory Opinion.
ii.
Leave be granted for the intended amicus curiae to make oral and written submissions limited to the following point of law:
a.
Whether the Secretariat of an Independent Office or Commission can undertake roles and functions assigned by the Constitution to the Commission or Office in cases of vacancies in the office of the Commissioners or the Office holder(s).
5.
Upon considering the affidavit sworn by Prof John Osogo Ambani, the Dean of Kabarak University Law School, in support of the motion and the intended amicus’ submissions of even date to the effect that; Kabarak University Law School was established in 2010 and accredited by the Council of Legal Education; and the Law School’s mission is to impact the universe through excellent legal education, cutting edge research and devoted community service based on ethical and biblical perspectives. The intended amicus curiae is a Centre at the said Law School whose objective includes conducting relevant legal research as well as enhancing clinical and experiential learning. Furthermore, that, the intended amicus curiae’s participation in the Reference will ensure that legal education institutions such as itself play a vital part in the complex process of evolution and development of the law; in point of fact, the single issue that the amicus seeks to address is geared towards assisting the court in developing the law and addressing a novel question that confronts constitutional bodies like IEBC; the intended amicus is neutral and members of Faculty of the Law School possess the necessary expertise and experience with respect to the single issue it intends to submit on; and the Motion has been brought without delay; and
6.
Considering also IEBC’s submissions dated August 16, 2024 in response to the motion, the tenor of which is; the intended amicus has met the requisite threshold and ought to be admitted in the Reference. However, that there are substantial inconsistencies in the draft amicus brief; in that, the intended amicus has taken the position that the advisory opinion sought is ‘unnecessary’ yet in the same breath seeks to be admitted into the matter. What is more, that contrary to the draft amicus’ brief, the issues upon which the court’s opinion is sought are not settled; while the High Court (Thande, J) by a judgment dated January 26, 2024 in the Abdullahi case directed the Selection Panel to complete the nomination exercise of persons for appointment as Commissioners of IEBC, the exercise is still pending; and besides, the High Court has on various instances directed the Chief Executive Officer of IEBC, notwithstanding the absence of Commissioners, to perform functions that would ordinarily have to be sanctioned by Commissioners. Towards that end, reference was made to the High Court decision in County Government of Kisii & 2 others v IEBC (Constitutional Petition E006 of 2024) [2024] KEHC 8477 (KLR) wherein the court issued orders inter alia directing the Secretary/Chief Executive Officer or any other person occupying that position to firstly, gazette the Returning Officer for Kisii County for the clearance and gazettement of the Deputy Governor nominee for Kisii County; and secondly, to gazette the nominated Deputy Governor as the Deputy Governor of Kisii County. Therefore, the issues in question require this court’s Advisory Opinion as a guiding principle not only to the current predicament facing IEBC but for other constitutional offices that may face similar challenges in future; and the intended amicus, as a bona fide friend of the court, should address all the issues raised since they are weighty and require its expertise; and","Upon deliberations on the motion and the submissions by IEBC as well as the intended amicus curiae, we opine as follows:
i.
It is well settled that admission of an amicus curiae in any proceedings lies within the discretion of the court, and this is determined on a case-by-case basis. See Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (intended amicus curiae) (Petition 15 & 16 of 2015 (Consolidated))[2016] KESC 12 (KLR). Further, this court in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] KESC 26 (KLR), aptly set out the following guiding principles in relation to an amicus curiae:
“
….
ii.
The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
…
viii.
The court will regulate the extent of amicus participation in proceedings, to forestall the degeneration of amicus role to partisan role.
ix.
In appropriate cases and at its discretion, the court may assign questions for amicus research and presentation.
…
xiii.
The applicant ought to show that the submissions intended to be advanced will give such assistance to the court as would otherwise not have been available. The applicant ought to draw the attention of the court to relevant matters of law which would otherwise not have been taken into account. Therefore, the applicant ought to show that there is no intention of repeating arguments already made by the parties. And such new matter as the applicant seeks to advance, must be based on the data already laid before the court, and not fresh evidence.
xiv.
The applicant ought to show expertise in the field relevant to the matter in dispute, and in this regard, general expertise in law does not suffice.
...”
Rule 19(2) of the Supreme Court Rules also succinctly delineates matters that this court should address its mind to in the following manner:
“
19
2.
The court shall before admitting a person as a friend of the court, consider—
a.
proven expertise of the person;
b.
independence and impartiality of the person; or
c.
the public interest.”
ii.
Equally, in considering admission of an amicus curiae in a Reference, such as the one before us, this court must always remain alive to the nature of its jurisdiction under article 163(6) of the Constitution in issuing an Advisory Opinion. More particularly, that the essence of the court rendering an opinion is to settle matters of great public importance which may not be suitable for conventional mechanisms of justiciability and/or to unravel a legal uncertainty in such a manner as to promote the rule of law and the public interest. See In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Advisory Opinion Application 2 of 2012); [2012] KESC 5 (KLR). Additionally, that an opinion rendered by the court guides not only the conduct of the organ(s) that sought it, but all governmental or public action thereafter, as pronounced In the Matter of the Interim Independent Electoral Commission (Constitutional Application 2 of 2011); [2011] KESC 1 (KLR).
iii.
Turning to the merits of the Motion, there is no dispute that the members of Faculty of Kabarak University Law School possess expertise and experience in research as well as different spheres of law as evinced by the list of members of Faculty and the publications annexed to the motion. Nonetheless, it is the intended amicus, CLACLE, as opposed to the members of Faculty of Kabarak University Law School who seek to be admitted as an amicus curiae in the Reference. It follows therefore, that the intended amicus is required to demonstrate its expertise in relation to the issues subject of the reference. In this regard, we note that the intended amicus has not annexed any research papers or publications that would speak to its expertise and experience in the issues in question.
iv.
Moreover, upon perusal of the draft amicus brief, we find that the intended amicus has not demonstrated that the submissions it proposes to put forth will draw the attention of the court to relevant matters of law which would otherwise not be taken into account.
v.
Consequently, we find that the intended amicus curiae has not met the threshold for admission in the Reference, and as such, the motion lacks merit.
vi.
Taking into account the nature of this matter and this court’s decision in Rai & 3 others v Rai, Estate of & 4 others (Petition 4 of 2012) [2014] KESC 31 (KLR), we deem it just to order that each party bears its own costs.
8.
Consequently and for the reasons afore-stated, we make the following orders:
i.
The notice of motion dated July 25, 2024 and filed on August 1, 2024 is hereby dismissed.
ii.
Each party shall bear its costs of the Motion.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/77/eng@2024-12-13
Petition E021 of 2023,"Export Processing Zone Authority & 10 others (Suing on their own behalf and on behalf of all residents of Owino-Uhuru Village in Mikindani, Changamwe Area, Mombasa) v National Environment Management Authority & 3 others (Petition E021 of 2023) [2024] KESC 75 (KLR) (6 December 2024) (Judgment)",Ruling,Supreme Court,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",6 December 2024,2024.0,Nairobi,Civil,"Export Processing Zone Authority & 10 others (Suing on their own behalf and on behalf of all residents of Owino-Uhuru Village in Mikindani, Changamwe Area, Mombasa) v National Environment Management Authority & 3 others",[2024] KESC 75 (KLR),,"A. Introduction
1.
Two appeals are before us for determination: Petition No. E019 of 2023 filed by the 1st Appellant dated 1st August 2023 and filed on 24th August 2023, and Petition No. E021 of 2023 by the 2nd – 11th appellants dated 5th August 2023 and filed on 7th August 2023 both pursuant to the provisions of Article 163 (4) (a) of the Constitution. The appeals arise out from the Judgment of the Court of Appeal at Mombasa (Gatembu, Nyamweya & Lesiit, JJA) in Civil Appeal No. E004 of 2020 as consolidated with Civil Appeal No. E032 of 2021 delivered on 23rd June 2023.
2.
The appeals concern the alleged violation of the right of the 2nd – 11th appellants to a clean and healthy environment, the highest attainable standard of health care and sanitation as guaranteed by Articles 42 and 43 of the Constitution and by dint of Article 70 of the Constitution. The appeal also interrogates the applicability of the polluter pays principle, the precautionary principle, the doctrine of presumption of regularity, apportionment of liability and, the interpretation of the constitutional remedy of compensation provided under Article 23(3) of the Constitution in instances where a court has made a pronouncement on violation of rights and fundamental freedoms with a specific focus on environmental protection.
B. Factual Background
3.
The 2nd to 11th appellants are residents of Owino-Uhuru Village within Changamwe Division, Mikindani Area of Mombasa County. They claim that they have been living in the densely populated village situate on Plot No. 148/V/MN in Mikindani which measures about 13.5 acres of land and that in the year 2006 Penguin Paper and Book Company Limited leased a neighbouring plot to Metal Refinery (EPZ) Limited (hereinafter Metal Refinery) which set up a lead acid battery recycling factory. The lead acid recycling activity produced toxic waste which seeped into the village causing the area residents various illness and ailments as a direct consequence of lead poising with more than 20 deaths attributed to it.
4.
Upon seeing the adverse effects of the existence of the factory, the 2nd – 11th appellants campaigned for its permanent closure and urged the concerned authorities to investigate the environmental degradation caused as well as the negative impacts suffered. This led to several intermittent closures and re- openings of the factory until it permanently closed in 2014. Even so, they posited that the responsible State agencies licensed and sanctioned the activities of Metal Refinery contrary to their mandate, thus violating their constitutional rights.","It is imperative for this Court to first point out that the undisputed facts in the appeal before us is that the factory in question was operated by Metal Refinery on land owned by Penguin Paper and Book Company Limited. Secondly, the parties concede that there was proof of violation of the 2nd to 11th appellants’ right to clean and healthy environment. The issues raised in the consolidated appeals before us therefore largely turn on the legality and propriety of the findings of the Court of Appeal on the liability to be borne by NEMA, EPZA and other state agencies for the adverse effects from the operations of the said factory and the basis for the quantum of the award of damages and compensation.
85.
None of the parties have disputed that this Court lacks jurisdiction to entertain the consolidated appeal. The appeal is brought under Article 163 (4) (a) of the Constitution. We have reflected on our jurisdiction and found that the suit here originated from the ELC court and proceeded to the Court of Appeal as a constitutional issue raising issues of constitutional interpretation and application. In line with our decision Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Anor S. C. Petition No.3 of 2012 [2012] eKLR, we find that this Court has jurisdiction to entertain the appeal before us. Having considered the respective parties’ pleadings and submissions in the consolidated petition, this Court is of the considered view that the issues arising for determination are;
a.
Whether the Court of Appeal misinterpreted and misapplied the provisions of Article 69 of the Constitution as read with Article 70 (2) of the Constitution.
b.
Whether the Court of Appeal erred in its assessment of liability.
c.
Whether the Court of Appeal erred in its interpretation of Article 23 of the Constitution specifically the available remedies once a Court has determined that there were violations of rights.
d.
Whether the Court of Appeal erred in reversing the ELC Court’s award on damages.
e.
Whether the Court of Appeal erred in remitting the matter back to the ELC for re-assessment of the award of damages.
f.
Whether the appellants are entitled to the reliefs sought.
g.
Who shall bear the costs of the Appeal?
a. Whether the Court of Appeal misinterpreted and misapplied the provisions of Article 42, 69 and 70(2) of the Constitution
86.
EPZA’s submission in this respect is that the superior courts erroneously and retrospectively applied the provisions of the Constitution for actions which took place prior to promulgation of the Constitution. That the actions complained of are also the subject of legislation since they took place in 2007 before enactment of the Constitution 2010 and that, under both the former and current constitutional architecture, it is the 1st, 2nd and 3rd respondents who are obligated to ensure sustainable management and conservation of the environment.
87.
The 2nd- 11th appellants in a rejoinder submitted that although the Pre-2010 Constitution does not capture aspects of environmental protections and management this does not mean there was no regard to it and in Peter K. Waweru v Republic, Nairobi, HC Misc. Application No. 118 of 2004 the court interpreted the right to life in Section 71 of the retired Constitution to include a right to a clean and healthy environment. Subsequently, where there is a right, there must be a remedy for any violation, which rights are now clearly defined in Articles 42 and 70 of the Constitution. We understand EPZA’s argument to be that the issues in dispute ought to be anchored in the previous Constitution and the legislation in existence at that time since the alleged violations took place in the year 2007.
88.
We have considered the history pertinent to the environmental degradation in Owino-Uhuru Village and note that the same did not commence and end in the year 2007 because the discharge of the affluent which posed a significant risk to those who came into contact with it continued until the eventual close down of the factory in the year 2014. This fact is well captured in the report of The Task Force on Decommissioning Strategy for Metal Refinery EPZ Ltd which was conducted in the year 2015 and at that time the tests still showed evidence of lead exposure at the factory and amongst residents of Owino- Uhuru village. The suit before the ELC was commenced by way of constitutional petition dated 20th February 2016 under the current Constitution as the violations had continued beyond 2010.
89.
In Clerk & Lindsel on Torts 16th Edition, paragraph 23 - 01, it is stated that ‘every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues”. The infringement in this case was not static but a continuing violation. Being a continuous act the same cannot be the subject of mathematical computation of time. The provisions of the current Constitution were therefore applicable to the circumstance of this case as the said principle in tort finds favour in allegations of constitutional violations.
90.
As regards whether in the constitutional architecture it is only the 1st, 2nd and 3rd respondents who are obligated to ensure sustainable management and conservation of the environment, the preamble of the Constitution 2010 acknowledges the need to be respectful to the environment which is the people’s heritage, and also expresses the determination to sustain it for the benefit of future generations. Article 42 of the Constitution further provides that every person has the right to clean and healthy environment. This includes the right to have the environment protected for the benefit of future generations. It is noteworthy that this right has both individual and collective dimensions. The individual dimension is the right of any victim or potential victim of any environmentally damaging activity to obtain reparation for harm suffered, while the collective dimension imposes a duty on individuals and states to cooperate to resolve environmental problems.
91.
The Final report of the Constitution of Kenya Review Commission (CKRC) at pages 267 and 268 made various recommendations in relation to the environment citing that it is the duty of the State to prevent pollution and its effects. The report also called for the application of the precautionary principle, environmental impact assessment and environmental audits. The CKRC recommendations have been adopted in Article 69 of the Constitution and when implementing the right to clean and healthy environment, the primary responsibility lies with the Government to adopt measures that will ensure effective environmental conservation and management. Article 69 of the Constitution imposes on the state the obligation to;
a.
ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits;
b.
work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya;
c.
protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities;
d.
encourage public participation in the management, protection and conservation of the environment;
e.
protect genetic resources and biological diversity;
f.
establish systems of environmental impact assessment, environmental audit and monitoring of the environment;
g.
eliminate processes and activities that are likely to endanger the environment; and
h.
utilise the environment and natural resources for the benefit of the people of Kenya.
92.
On the other hand, Article 69 (2) provides that every person has a duty to cooperate with state organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. Article 70 (1) provides mechanism to redress any violation of the right to clean and healthy environment in the following terms:
“
(1)
If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter”.
93.
The provisions of Article 69 places the obligation in respect of the environment to “the State” defined in Article 260 of the Constitution to mean the collectivity of offices, organs and other entities comprising the Government of the Republic under the Constitution. Article 69 (2) further elaborates this point by mandating every person to cooperate with “all state organs”. The obligation to ensure respect of the environment is therefore not a preserve of the 1st, 2nd and 3rd respondent as submitted but an obligation to all State organs.
94.
In that context, EPZA is a State Corporation under the Ministry of Investments, Trade and Industry, established in 1990 by the EPZ Act Cap. 517, Laws of Kenya. EPZA’s mandate is to promote and facilitate export-oriented investments and to develop an enabling environment for such investments. Section 19 of the EPZ Act grants EPZA the mandate to issue a licence to any person to carry on business as an export processing zone developer, or an export processing zone operator or an export processing zone enterprise.
95.
Section 23 (c) of the EPZ Act further provides that a license for the establishment of export processing zone enterprise shall be granted if the application is found to meet the objectives of the Act and if the proposed business enterprise -
“
(c)
shall not have a deleterious impact on the environment, or engage in unlawful activities, impinging on national security or may prove to be a health hazard.”
96.
the Constitution and the law therefore directly imposes an obligation on all State organs to ensure the protection of the environment. Section 23 (c) of the EPZ Act imposes a specific and clear obligation to EPZA in ensuring there is protection to the environment. We must for these reasons dismiss EPZA’s argument that it is only the 1st, 2nd and 3rd Respondents who are obligated to ensure sustainable management and conservation of the environment.
b. Whether the Court of Appeal erred in its assessment of liability
97.
The 1st appellant and the respondent’s submission on liability is a vicious blame game, each seeking not to attach liability to itself either by omission and commission and be culpable to the environmental degradation and the violations suffered by the 2nd to 11th appellants. This back-and-forth between parties is common in complex environmental or liability cases where multiple parties may be involved in the causation or exacerbation of harm. The court in such cases needs to assess the roles each party played, whether through direct actions (commission) or through failing to act when required (omission), and ultimately determine who is responsible for the degradation and the injuries caused.
98.
The arguments by the 1st appellant and the respondents revolve around the various principles of sustainable development some of which are embodied in Section 3 (5) of EMCA. They also urge the Court to consider their respective mitigation of loss.
99.
Principle 1 of the 1992 Rio Declaration on the Environment and Development states that human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature and one of the national values and principles of governance as provided under Article 10 of the Constitution is sustainable development. The principles of sustainable development are also captured in Section 69 (2) of EMCA to include: the principle of sustainable development of policies, plans and processes for the management of the environment; the principle of international cooperation in the management of the environmental resources shared by two or more states; the polluter pays principle; and the pre-cautionary principle.
100.
Further, the Constitutional provision on the enforcement of the right to clean and healthy environment is largely based on the polluter pays principle where the provisions give extensive power to the court to compel the government or any public agency to take restorative measures and to provide compensation for any victim of pollution and to compensate the costs borne by the victims for the lost use of natural resources as a result of an act of pollution. In addition to the polluter pays principle there is also the precautionary principle which directly impacts on environmental liability. The precautionary principle marks a shift from post-damage control (civil liability as a curative tool) to the level of pre-damage control (anticipatory measures of risks). Principle 15 of the Rio Declaration on Environment and Development states in that context;
[i]
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.
(See also Kariuki Muigua, Attaining Environmental Justice for Posterity Vol 2 Glen Wood Publishers Limited Pg. 26-47).
101.
Section 3 (5) of the EMCA embodies these principles to guide the courts at arriving at a determination in an application for redress for a contravention to a clean and healthy environment. The same have been described under Section 2 of the Act as follows;
“
polluter-pays principle"" means that the cost of cleaning up any element of the environment damaged by pollution, compensating victims of pollution, cost of beneficial uses lost as a result of an act of pollution and other costs that are connected with or incidental to the foregoing, is to be paid or borne by the person convicted of pollution under this Act or any other applicable law;
“
precautionary principle"" is the principle that where there are threats of damage to the environment, whether serious or irreversible, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation;
102.
The polluter pays principle therefore inclines that the person who will be targeted to carry out clean-up of contaminated land is the polluter, regardless of whether the contamination was foreseeable when the pollution event occurred or whether the polluter was at fault. The test of ‘causing’ involves some active operation or chain of operations to which the presence or continued presence of the pollutants is attributable. Such involvement may take the form of a failure or omission to act in certain circumstances. The test of ‘knowingly permitting’ would also require both knowledge that the substances in question were in, on or under the land and the possession of the power to prevent such substances being there. There is also the presumption that if a person has caused or knowingly permitted the presence of a contaminated substance on one piece of land, he will also be regarded as having caused or knowingly permitted that substance to be present on any land to which it appears to have migrated.
(See also Freshfields, Tolley Environmental Law, Tolley Publishing Ltd Issue 3 April 1998)
103.
Courts also rely on common law principles when determining the issue of strict liability in environmental matters. The old and often quoted case of Ryland vs Fletcher (1868) LR 3 HL 330 imposes strict liability on the owner of land for damage caused by the escape of substances to his or her neighbours land. From this case the pre-requisites of strict liability are that the defendant must have made a non- natural or special use of his land; that the defendant brought onto his land something that was likely to do mischief if it escaped; the substance in question escaped; and the plaintiff’s property was damaged because of the escape.
104.
Furthermore, in David M. Ndetei v Orbit Chemical Industries Limited [2014] KEHC 4354 (KLR), the court in its analysis of Ryland v Fletcher took the view that a non-natural use of land relates to the nature of the activity carried out by the defendant on his land and it must be one that is special, exceptional or out of the ordinary, hazardous or inherently dangerous. It should also be one that carries high risk of great harm which risk cannot be ameliorated by the defendant despite exercise of reasonable care. The time and place where the activity is carried out is, in addition, a factor to consider so that a factory set up in an otherwise industrial area would not be deemed as non-natural use of land. In the case of M. C. Mehta v Union of India [1987] 1 SCC 395, the court stated that the test upon which such liability is to be imposed is based on the nature of the activity. Consequently, where an activity is inherently dangerous or hazardous, then absolute liability for the resulting damage attaches on the person engaged in the activity.
105.
As relates to state obligations the findings and recommendations of the African Commission on Social and Economic Rights in its decision in Action Centre (SERAC) & Another v Nigeria Communication 155/96 (Otherwise known as the Ogoni Case or Serac case) brought out pertinent issues on Article 21 (disposal of natural resources) and Article 24 (right to environment) of the African Charter. The African Commission on Human and Peoples Rights found that, when a state allows private persons or groups to act freely and with impunity to the detriment of the rights recognized in the Charter, it would be in violation of its obligation to protect the human rights of its citizens. In relation to Article 21 of the Charter the Commission stated;
“
Governments have a duty to protect their citizens, not only through appropriate legislation and effective enforcement, but also by protecting them from damaging acts that may be perpetrated by private parties. This duty calls for positive action on the part of governments in fulfilling their obligations under human rights instruments…”
106.
In the present appeal, EPZA relies on the doctrine of presumption of regularity, and urges this Court to find that it was not for it to investigate whether there were procedural lapses on the part of the 1st and 3rd respondents or that the proposed activities were harmful to the environment and human health, as the latter are the experts in matters relating to the environment. The ELC and the Court of Appeal on their part faulted EPZA for issuance of a license to Metal Refinery without prior submission of an EIA license, the superior courts also found that the letters were in respect to distinct parcels of land. The ELC Court also noted that in accordance with Principle 2 of the Stockholm declaration 1973, export processing zones have neighbourhoods which ought to be protected for intra-inter- generational equity.
107.
In general, the presumption of regularity presupposes that no official or person acting under an oath of office will do anything contrary to their official duty, or omit anything which their official duty requires to be done. The doctrine provides a degree of deference to the actions or decisions made by government officials or institutions. It is grounded in the assumption that these officials act within the bounds of the law, follow established procedures, and operate in good faith when performing their duties. This presumption also relieves courts or reviewing bodies from conducting a deep, thorough review of every action or decision unless there is specific evidence to suggest wrongdoing, procedural lapses, or irrational behavior. (See The Presumption of Regularity In Judicial Review Of The Executive Branch Harvard Law Review pg. 2432). The idea is that, in the absence of clear evidence to the contrary, administrative actions should be presumed to be regular, lawful, and reasonable.
108.
However, this concept must be balanced with other important values like accountability, due process, and the rule of law. Such a balance ensures that decisions and actions can still be challenged if there are indications of arbitrariness, unlawfulness, or significant procedural flaws, helping protect individuals and entities from potential abuse of power or wrongful outcomes. In practice, the presumption of regularity requires a showing of some evidence or claim to overcome, after which a more probing review can take place.
109.
In the above context, the Court of Appeal in Chief Land Registrar and 4 others vs Nathan Tirop Koech & 4 others (2018) eKLR, stated that there is a presumption that all acts done by government officers are done in official capacity and that all procedures have been duly followed. And in Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKLR the Court of Appeal also held that the evidence required to rebut the presumption of regularity must be cogent, clear and uncontroverted and that the presumption of regularity cannot be rebutted through conflicting interpretation of a statutory or regulatory provision. The Court further held that liability for any action cannot be founded on conflicting interpretation of statute.
110.
In this case, EPZA under Section 23 of the EPZ Act was under a duty to ensure that the business entities it licensed under the Act “shall not have a deleterious impact on the environment”. The decision in Kibos (supra) is therefore distinguishable from this case as in Kibos the court held that the starting point is that NEMA acted lawfully and procedurally in issuing the EIA Licenses. That is not the case in this appeal because prior to issuing Metal Refinery with a license and by a letter dated 27th June 2006 responding to Metal Refinery, EPZA required it to submit a certified copy of an EIA license from NEMA. It is clear to us therefore that EPZA was aware that an EIA license was necessary prior to its issuance of a license to Metal Refinery and it subsequently relied on a letter from NEMA to issue Metal Refinery a license yet the letter referred to LR No. MN/III/3697 Kilifi District/County, a totally different parcel of land because Metal Refinery was stationed in Changamwe, Mombasa District/County.
111.
In any event the presumption of regularity does not oust a State organ’s responsibility to probe the administrative duties of another institution where in its opinion it finds that such institution has not complied with due process. We are therefore in agreement with the Court of Appeal’s finding that EPZA was not only in direct violation of Article 69 of the Constitution and Section 23 of the EPZ Act, but also assumed the legal risk and responsibility for any shortcoming by NEMA in its process of issuance of the EIA license to Metal Refineries.
112.
Further to the above finding, we note that NEMA’s submissions on liability are largely to the effect that Section 58 of the EMCA contemplates scenarios where a project can actually commence and proceed without issuance of an EIA License. That in a bid to exercise due caution and in line with the precautionary principle it deemed it fit to monitor the project for a while before issuing an EIA licence. They also submit that the learned judges of the superior courts below erred in finding that there was a direct link between NEMA’s act of approving Metal Refinery’s activities and the injuries suffered by the 2nd -11th appellants.
113.
The Court of Appeal in enhancing NEMA’s apportionment of liability held that NEMA bears greater responsibility because once evidence of the adverse and hazardous effects on the operations of the project became apparent, given the nature of the wide ranging effects on the ecosystem, human health, water, and air quality, it ought to have applied a wide range of enforcement measures at its disposal, including the cancellation of the EIA License, restoration orders, and prosecution of the perpetrators of the pollution.
114.
Section 7 of the EMCA establishes NEMA while Section 9 provides for the objects and functions of NEMA to include amongst others;
“
(k)
initiate and evolve procedures and safeguards for the prevention of accidents which may cause environmental degradation and evolve remedial measures where accidents occur;
(l)
monitor and assess activities, including activities being carried out by relevant lead agencies, in order to ensure that the environment is not degraded by such activities, environmental management objectives are adhered to and adequate early warning on impending environmental emergencies is given.”
115.
Section 19 on the other hand provides the liability of the Authority for damages and states;
“
The provisions of section 18 shall not relieve the Authority of the liability to pay compensation or damages to any person for any injury to him, his property or any of his interests caused by the exercise of the powers conferred on the Authority by this Act or by any other written law or by the failure, whether wholly or partially, or any works”.
116.
Section 25 also establishes the National Environment Restoration Fund whose objects under Section 25 (4) include the fact that it shall be a supplementary insurance for the mitigation of environmental degradation where the perpetrator is not identifiable or where exceptional circumstances require NEMA to intervene towards the control or mitigation of environmental degradation.
117.
Part V of the Act provides for the protection and conservation of the environment while Part VI provides for an integrated Environmental Impact Assessment. Section 58 (2) specifically provides;
“
The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority:
“
Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases”.
118.
The process that follows after the conduct of an Environmental Impact Assessment is the publication of the EIA in at least two newspapers of nationwide circulation; receipt of comments on the EIA report by lead agencies; if necessary receipt of further advise from comments received through a technical committee set up by the Authority and the conduct of further evaluation of environmental impact assessment study. It is after these processes are done and the Authority is satisfied as to the adequacy of an Environmental Impact Assessment study, evaluation or review report, that it may issue an EIA license on such terms and conditions as may be appropriate and necessary to facilitate sustainable development and sound environmental management.
119.
Section 64 provides that the Authority may conduct a further Environmental Impact Assessment even after issuance of the license while Section 69 mandates the Authority to conduct environmental monitoring with a view to assessing any possible changes in the environment and their possible impacts; or the operation of any industry, project or activity with a view of determining its immediate and long-term effects on the environment.
120.
NEMA equally has other roles including the issuance of licenses for effluent and emissions discharge and the issuance of environmental restoration and conservation orders in any matters relating to the management of the environment. Rule 14 of the Environmental Management and Co- Ordination (Waste Management) Regulations provides the general obligation to mitigate pollution and mandates every trade or industrial undertaking to install anti- pollution equipment for treatment of industrial waste. The anti-pollution equipment installed is determined by the best practicable means, environmentally sound practice or other guidelines NEMA may determine. In relation to treatment of Industrial waste, Rule 15 & 19 prohibit discharge of waste unless the waste has been treated.
121.
The Court of Appeal in apportioning liability to NEMA held that it approved the project at its commencement before the full impact of the project was considered and evaluated. It specifically found and held in paragraph 84 that;
“
NEMA did not provide evidence that the EIA Study undertaken by Metal Refinery (EPZ) Limited dated 13th March 2007 that was produced in evidence was subjected to technical evaluation in light of the parameters that require to be satisfied in terms of impact as set out in the Second schedule to the Environmental (Impact Assessment and Audit) Regulations, 2003 and confirmation of the relevant standards that required to be met by Metal Refinery EPZ Ltd, including on hazardous waste. The casual link between the approval of the operations of Metal Refinery EPZ Limited before completion of the EIA Process and the damage suffered as a result of effects of the projects is therefore evident, since appropriate controls could have been put in place by NEMA ex ante were the hazardous impact of the project properly identified, including an absolute prohibition on the project. Put differently, the project would never have seen the light of day and hence no damage would have been resulted…(sic)”
122.
Section 1 of the Second Schedule of EMCA sets out general projects that require EIA to include any activity out of character with its surrounding, any structure of a scale not in keeping with its surrounding and major changes in land use. The Schedule provides a more specific and comprehensive list of projects such as urban development, transportation, dams and rivers, mining, forestry and agriculture. The provisions of Section 58 do not therefore provide the Authority the power to conduct ‘test runs’ as suggested by NEMA in its submissions. It is also clear to us that due procedure was not conducted by NEMA prior to issuance of the license to Metal Refinery. There are inconsistencies as to where the actual location of the factory was to be located, despite there being clear provisions in Section 59 of the Act that the publication of the Environmental Impact Assessment should contain the place where the project is to be carried out and where the environmental impact assessment study, evaluation or review report may be inspected. There is also no indication that the EIA was gazetted prior to its approval or comments were received concerning the same. NEMA issued a cessation Order on 23rd April 2007 only to later approve and issue the EIA license on 16th May 2007 without confirming that the terms set out in the cessation order had been complied with. It thereafter reverted and urged Metal Refinery to conduct ‘test runs’ and even after issuance of the license and noting that Metal Refinery was discharging effluents harmful to the environment, it only issued improvement orders and this continued until the eventual closed down of Metal Refinery in 2012. Again, NEMA proceeded to transfer the EIA License to Max Industries Limited on 23rd April 2013 without addressing the environmental concerns already apparent.
123.
We have already outlined the responsibility that state organs have under Article 69 of the Constitution in relation to protection of the environment. NEMA in this regard has a myriad of duties under EMCA to safeguard the environment. In its enforcement capabilities under Section 117 of that Act, NEMA could order the immediate closure of any manufacturing plant or other establishment or undertaking which pollutes or is likely to pollute the environment contrary to the provisions of the Act and require the owner or operator of such establishment or undertaking to implement any remedial measures that an environmental inspector may direct; under Sections 108 -116, NEMA can order restoration and conservation of the environment. Part XIII of EMCA also outlines environmental offences, Section 141 and 142 makes it an offence for failing to manage any hazardous waste and materials and polluting the environment. Despite this huge mandate, it is discernable that NEMA was negligent in the conduct of its duties in the present case or as the ELC held, NEMA’s actions assisted Metal Refinery in breaching the law instead of holding them to account.
124.
As to whether there was a causal link between the actions of NEMA and the damage suffered by the 2nd -11th appellants, there is no doubt that NEMA’s actions and inactions provided the casual link between Metal Refinery’s negligence and the injury occasioned to the 2nd – 11th appellants. NEMA had on numerous occasions the opportunity to avert the discharges from the factory but it clearly failed on its mandate and this led to the unwarranted suffering occasioned to the residents of Owino-Uhuru Village. We therefore find that the Court of Appeal was right in holding that NEMA bore a greater responsibility and that NEMA and EPZA were the main actors in so far as the cause of deleterious activities were concerned with the liability of the other actors being either passive or reactive in relation to the pollution.
125.
We further note that the 2nd, 3rd and 4th respondents have advanced the argument that the negligence and inactions of Metal Refinery should not be placed on NEMA, EPZA, the Ministry of Health and the Ministry of Environment, Water and Natural Resources. We have in that regard already highlighted that the State and its organs and agencies can be responsible even to actions of private persons, and that the provisions of Articles 42, 69 and 70 of the Constitution bears both an individual and collective dimension. We also note that the superior courts imposed individual responsibility on each of the respondents and specifically on the 3rd respondent because it issued a mining license to Metal Refinery on 31st December 2006 whereas Metal Refinery had not obtained an EIA license. Under Section 103 of the Mining Act, the Cabinet Secretary is to issue a mining license where inter alia;
“
the applicant has obtained an approved environmental impact assessment and environmental management plan in respect of the applicant’s proposed mining operations”.
To the 4th respondent, the superior Courts held that it had an obligation under Sections 115 – 120 of the Public Health Act to have Metal Refinery remove any nuisance but it failed to do the same.
126.
As relates to mitigation of loss, mitigation measures are means to prevent, reduce or control adverse environmental effects of a project, and include restitution for any damage to the environment caused by those effects through replacement, restoration, compensation or any other means. Freshfields, Tolleys Environmental Law Tolley Publishing Company Ltd Issue 3 April 1998 states that the exercise of reasonable care, or even the highest standard of care to try to avoid the damage is not necessarily a defence. For example, the employment of diligent, well- qualified management and the installation of expensive state- of- the art effluent treatment systems will avail a company little if its routine discharges cause foreseeable discharges to a neighbouring property.
127.
EPZA on the above issue now submits that the appellate court failed to consider its actions in mitigation of the adverse effects on the environment by it failing to renew the license of Metal Refinery. EPZA did not however renew the license for one year i.e. 2006 – 2007 while Metal Refinery continued to operate within the EPZ zone for seven (7) years; and there is no evidence on record that EPZA tried to close down Metal Refinery due to lack of a license. We note that during the deliberations of the Public Complaints Committee under EMCA in PCC vs Metal Refinery Ltd PCC Complaint No. 22 of 2009, a Mr. Itegi from EPZA stated that Metal Refinery has a valid license expiring December 2009; this inconsistency from EPZA does not aid its defence on mitigation. EPZA clearly did not thus exercise reasonable care and its action of failing to renew a license for one year did not mitigate the loss occasioned. The temporary closures by NEMA and the actions of the 2nd, 3rd and 4th respondents in treating the residents of Owino- Uhuru Village did not equally avail much in mitigation. We have to restate that the state’s obligation is first precautionary before relying on the polluter pays principle which is not the case here.
128.
Upon arriving at the above findings we find no reason to disturb the Court of Appeal’s finding on liability.
c. Whether the Court of Appeal erred in its interpretation of Article 23 of the Constitution specifically the available remedies once a Court has determined that there was a violation of rights
129.
Article 23 of the Constitution provides the authority of courts to uphold and enforce the Bill of Rights. Article 23 (3) provides that in any proceedings brought under Article 22, a court may grant appropriate relief, including-
a.
Declaration of rights;
b.
An injunction;
c.
A conservatory order;
d.
A declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24.
e.
An order of compensation; and
f.
An order of judicial review.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/75/eng@2024-12-06
Petition E001 of 2024,Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR) (6 December 2024) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",6 December 2024,2024.0,Nairobi,Civil,Kwanza Estates Limited vs Jomo Kenyatta University of Agriculture And Technology,[2024] KESC 74 (KLR),,"A. Introduction
1.
This Petition of Appeal dated 12th January, 2024, was filed pursuant to certification by the Court of Appeal (Nyamweya, Ochieng & Korir, JJ.A) in its Ruling dated 15th December 2023 as one involving a matter of general public importance under Article 163(4)(b) of the Constitution. The Petitioner seeks orders setting aside the Judgment and Order of the Court of Appeal (Sichale, Achode & Korir, JJ. A) in Civil Appeal No. 64 of 2022 delivered on 16th June 2023. The appellate court set aside the orders of the Environment and Land Court at Nakuru (D.O. Ohungo, J.) in ELCC No. E019 of 2020.
B. Background
2.
The parties herein entered into a lease agreement on 1st May 2010. The terms of the lease were that the petitioner agreed to lease to the respondent, Nakuru Municipality Block 9/90 and the building erected thereon, hereinafter the “suit premises” for a period of six (6) years, which expired on 30th April, 2016. After the expiry of the said lease, the parties entered into another lease agreement of the suit premises for a period of six (6) years, from 1st May 2016 to 30th April, 2022. The Respondent was to pay an increasing annual rent commencing Kshs.45,543,000/- and service charge quarterly in advance, clear of all deductions, and a 5% late payment would be incurred if the sum was not paid within 14 days.
3.
On 10th July 2020, the respondent issued a three (3) months’ notice to the petitioner intimating its intention to terminate the lease and vacate the premises. Upon expiry of the notice period, on 10th October, 2020, when the respondent commenced the process of vacating the suit premises, the petitioner restrained it from removing its property from the suit premises by placing security guards and goons at the entry and exits of the premises. Further, the petitioner proceeded to serve the respondent an invoice dated 19th October, 2020 for Ksh.15,776,973/- being rent for November 2020 to January 2021.
4.
Subsequently, through a letter dated the 6th November, 2020, the petitioner instructed Messrs Pyramid Auctioneers who issued a Proclamation for Distress of Moveable Property dated the 6th November, 2020 for the sum of Ksh.15,776,973/- and auctioneers’ fees of Kshs.1,577,697/-.
5.
The respondent ultimately vacated the premises on 31st January 2021 and despite vacating, the petitioner instructed Messrs Pyramid Auctioneers through a letter dated the 10th February 2021 to proclaim against the respondent’s properties for recovery of rent arrears in respect of the period of February 2021 to April 2021 for the sum of Kshs.17,659,138/-. The auctioneers issued a Proclamation for Distress of Moveable Property dated the 10th February 2021 for the sum of Kenya Shillings Kshs.16,053,762/- and auctioneer's fees of Kshs.1,605,376/-. Through a letter dated 8th February 2021, the respondent gave the petitioner notice for the formal handover of the premises and invited the petitioner through a letter dated 11th February 2021 for the formal handover which was to be done on 12th February 2021. The caretaker declined to participate in the handover exercise and upon conclusion of the exercise, a report was prepared.","i) Whether the respondent pleaded force majeure or frustration in order to be discharged from its agreement with the petitioner?
52.
In addition to the written submissions, Prof. Ojienda SC, Counsel for the petitioner submitted that the Court of Appeal misdirected and erroneously rewrote the terms of the lease in the interchangeable use of frustration and force majeure and the eventual finding that Covid-19 was a force majeure event. He submitted that parties are obligated to comply with the terms of their contracts and cannot unilaterally plead the effect of Covid-19 to depart from the terms of their contracts. He further contended that a party cannot use the plea of force majeure to depart from a contract unless they first prove that the contract provided for such a clause, or its possibility, and second that the supervening event was inter alia unforeseeable, insurmountable and external. It was urged that pursuant to Section 107 of the Evidence Act, the onus was on the respondent to demonstrate how Covid-19 frustrated its performance and obligations under the lease and it failed in this duty. He argued that there was no evidence submitted to the extent that the effects of the Covid-19 pandemic were sufficient to vary, to nullify or lead to a departure from the terms of the lease.
53.
Counsel further pointed out that the respondent did not cease to exist, rather it simply avoided its obligations under the lease and moved to another building about 100 meters away from the site of the contract. Mr. Konosi, the petitioner’s Counsel highlighted several decisions from various jurisdictions including Kenneth Tracy Vs. Lee James Men’s Wear Limited, Broadway LLC Vs. Blood Food LLC and East 75 Street Corporation Vs. Christian Lofting from the United States and the case of Gap Inc. Vs. Ponte Gadea and Porter Airlines from the Supreme Court of Canada to demonstrate that the courts have generally found that Covid-19 would not assist parties in avoiding their contractual obligations.
54.
Mr. Issa Mansur, Counsel for the respondent, submitted that there is distinction between force majeure and frustration. Force majeure is a contractual clause where the parties provide in a contract if the events specified in the clause occur, then performance is suspended or excused. Frustration on the other hand is by operation of law and has existed since 1864. For frustration to apply, there must be a supervening event that radically changes what was contemplated by the parties such that the performance is radically different. It is the performance of the contract that is frustrated and the frustration must not have been caused by one of the parties. A party in a claim of frustration pleads the facts and the courts decide whether the party has established frustration and whether further performance is discharged.
55.
He argued that the Court of Appeal in the case of Charles Mwirigi Miriti vs. Thananga Tea Growers Sacco Limited & Another [2014] eKLR set out five tests for a party to prove that the doctrine of frustration applies. It is this test that Mr. Mansur argued the trial court properly set out but then went off tangent and applied the principle that the courts in this Country cannot interfere with the contracts entered into by the parties. He urged that the Court of Appeal on the other hand properly considered the principles, applied them to the facts and reversed the decision of the Environment and Land Court. In the comparative analysis, Mr. Mansur highlighted that the doctrine of frustration is applied differently between the American and the English position.
56.
The terms ""force majeure,"" ""frustration,"" and ""act of God"" are frequently used interchangeably. However, it is important to note that while they are similar, as both force majeure and frustration result in discharging parties from contractual obligations, they are not one and the same. On the other hand, Black’s Law Dictionary, 11th Edition, at page 43 defines an “act of God” as follows:
“
An overwhelming, unpreventable event caused exclusively by forces of nature, such as an earthquake, flood or tornado. The definition has been statutorily broadened to include all natural phenomena that are exceptional, inevitable and irresistible, the effects of which could not be prevented or avoided by the exercise of due care or foresight.”
57.
Force majeure is defined at page 788 as follows:
“
[Law French “a superior force”] (1883) An event or effect that can be neither anticipated nor controlled. The term includes both acts of nature (eg. floods and hurricanes) and acts of people (eg. riots, strikes and wars)
Force majeure clause – a contractual provision allocating the risks of loss if performance becomes impossible or impracticable esp. as a result of an event or effect that the parties could not have anticipated or controlled.”
58.
While frustration is defined at page 812 as follows:
1.
The prevention or hindering of the attainment of a goal, such as contractual performance.
Commercial frustration An excuse for a party’s non- performance because of some unforeseeable and uncontrollable circumstance. Also termed economic frustration.
Self induced frustration. A breach of contract cause by one party’s action that prevents the performance. The phrase is something of a misnomer since self-induced frustration is not really a type of frustration at all but is instead a breach of contract.
Temporary frustration. An occurrence that prevents performance and legally suspends the duty to perform for the duration of the event. If the burden or circumstances is substantially different after the event, then the duty may be discharged.
2.
Contracts. The doctrine that if a party’s principal purpose is substantially frustrated by unanticipated changed circumstances, that party’s duties are discharged and the contract is considered terminated. Also termed frustration of purpose.”
59.
We find the decision in Pankaj Transport PVT Limited v SDV Transami Kenya Limited [2017] eKLR by the High Court (Ogola J.) to be of persuasive value as it expounded the doctrine of force majeure quite aptly. The doctrine of force majeure has its origin in French law where there are express force majeure provisions in the French civil code which excuse contractual performance where events have happened outside the parties’ control which could not have been foreseen at the time of contracting and which could not have been avoided by appropriate measures. The doctrine of force majeure has expanded to include events caused by both human actions and natural occurrences, defining situations beyond the control of parties that prevent them from meeting contractual obligations. Further, the interpretation the courts give is dependent on the choice of wording and events delineated by the parties in their contract.
60.
Notably, in Davis Contractors Ltd v Fareham Urban District Council (1956) 696 at 729 [Pages 9-50], it was highlighted that such events can hinder performance without fault from either party. Similarly, McCardie J in Lebeaupin v. Richard Crispin & Co. (1920) 2 KB 714, [Pages 51-63] noted that ""force majeure"" is frequently used in commercial contracts without a clear definition. Under French law, a party may be excused from performance if they can show the event was unforeseeable and insurmountable.
61.
A notable aspect of the force majeure doctrine is that while English Common law and American jurisprudence recognize similar principles, courts will enforce the force majeure doctrine only when it is explicitly stated in contracts. Put another way, if a provision is not made contractually by way of a force majeure clause, a party will only be able to rely on the very stringent provisions of the common law doctrine of frustration. Under English law, contractual performance will be excused due to unexpected circumstances only if they fall within the relatively narrow doctrine of frustration. This doctrine will apply by default unless the parties agree on something different in their contract.
62.
A summation of the above distinction leads us to the conclusion that an act of God refers specifically to the natural events that occur and can neither be prevented nor controlled by people. Force majeure applies to contracts to excuse further performance due to both natural disasters and human-caused events such as wars or strikes that prevent a contract from being fulfilled. It must be written into the contract, specifying what kinds of events would apply. Frustration is a common law doctrine which is implied into contracts to allow the discharging parties from further performance due to unforeseen event which makes it impossible to carry out the contract's main purpose, essentially altering the situation so much that the contract no longer makes sense.
63.
As demonstrated hereinabove the paths force majeure and frustration take are different. It is therefore crucial to determine which of the two was pleaded by the respondent and to do so , we have to examine the record.
64.
The respondent in its letter dated 10th July, 2020 wrote to the petitioner seeking to be discharged from the Lease Agreement. In particular the respondent stated that the intervening circumstances had made it financially untenable for it to continue with its tenancy. We reproduce part of the letter herein below:
As you may very well aware, Jomo Kenyatta University of Agriculture and Technology (JKUAT) like all other Public Universities in Kenya has been going through dire financial constraints in the recent times due to drastic fluctuations in Government support as well as a declining uptake of Programmes at the Campuses
This has been aggravated by the reduction of self-sponsored students following a Government directive on absorption of self-sponsored students as Government of Kenya students. Our Nakuru CBD campus was 100% dependent on self-sponsored students hence the unprecedented decline in student numbers.
The recent closure of the University on 18th March, 202o due to the Covid-19 pandemic as directed by the Government has further aggravated the cash-flow challenges the University is facing noting that most of the University income is pegged on revenues obtained from Academic operations.
The two issues highlighted above are unprecedented happenings that the Education sector had not foreseen. Consequently, the University found it financially untenable to continue with the tenancy at Kwanza House.
We therefore wish to notify you of our intention to terminate the lease agreement and vacate the said premises upon the expiration of a notice period of Three (3) months from the date of this letter.
We undertake to restore the building to a tenantable state of repair in accordance with clause 5.26 of the lease agreement which requires the Lessee to:.…”
65.
The respondent in its Amended Plaint dated 29th May, 2021 at paragraphs 13 and 14 pleaded frustration out of its prevailing circumstances and at paragraph 15 pleaded particulars of frustration as follows:
“
Particulars of Frustration of the Lease
a.
Change in law occasioned by implementation of a new placement policy by the KUCCPS where all students who attain the minimum entry requirement for admission to the university are sponsored by Government in both the private and public universities. This was done pursuant to Section 56 of the Universities Act, 2012 (the “Universities Act”).
b.
Reduced student enrolment occasioned by lack of self- sponsored students on account of the move by the government to fully sponsor all students who attain the minimum entry grade of C+.
c.
Reduced and/or non-existent government support which was critical to financing the operation of the Plaintiff.
d.
The emergence of the Covid-19 pandemic which resulted in the closure of schools and learning institutions.
e.
The lack of funds for the Nakuru CBD campus whose income and expenditure is wholly reliant on revenues obtained from academic operations from its self-sponsored students program.”
66.
The trial court noted that the respondent had urged that the lease had been frustrated and/or rendered commercially impossible and that the respondent ought to be discharged from it. This frustration stemmed from the operation of law or a change in the law in the implementation of government policy regarding placement and the Covid-19 pandemic.
67.
We note that the Court of Appeal when making a determination on the second issue of whether the lease had been frustrated by circumstances or the law, from paragraphs 38 to 43 analyses the principles of the doctrine of frustration juxtaposed against the circumstances of the present case. At paragraph 44, the Court of Appeal introduces the concept of force majeure and concluded as follows:
“
Consequently, it is our view that the pandemic was a force majeure event that caused the appellant undue difficulty in continuing with the lease agreement in accordance with its purpose and making the payments thereupon agreed.”
68.
We have perused the lease agreement between the parties and found that no force majeure clause is contained therein. Equally, there was consensus by Counsel for both parties that the lease between the parties did not contain a force majeure clause and that the respondent in its pleadings only pleaded frustration as opposed to force majeure.
69.
Consequently, it is clear to us that the question before the trial court as pleaded was on the applicability of the doctrine of frustration and not force majeure and the effect of the Covid-19 pandemic in the context of the contract.
ii. Whether the Covid-19 pandemic constituted a ground for discharging the respondent from its contractual obligations under the Lease agreement?
70.
The applicability of the doctrine of frustration is not new to our jurisdiction. As noted by the Court of Appeal in the present matter, the principles of the doctrine of frustration have been restated repeatedly and are now old hat. The doctrine of frustration has been applied severally by the Court of Appeal for instance in the cases of Kenya Airways Limited vs. Satwant Singh Flora [2013] eKLR, Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd & another [2014] eKLR and Five Fourty Aviation Limited vs Richard Oloka [2015] eKLR. The Kenyan Courts acknowledge that the doctrine of frustration, first established in Taylor v. Caldwell 122 Eng. Rep. 309 (1863), discharges parties from a contract when unforeseen events destroy the subject matter or render performance impossible without fault from either party. Further, modern interpretation, as articulated by Lord Radcliffe in Davis Contractors Ltd v. Fareham U.D.C. (1956) A.C 696, recognizes frustration where a contractual obligation becomes radically different due to external circumstances, beyond what was originally agreed. The doctrine aims to ensure fairness and mitigate the rigidity of strict contractual obligations but must be invoked cautiously.
71.
In summary, the doctrine of frustration releases parties from their contractual obligations when an unforeseen event fundamentally alters the nature of the contract, rendering further performance impossible or significantly different from the original agreement. Key principles include limitation to narrow circumstances, and reliance on events beyond the control or fault of the invoking party, the effect of bringing the contract to an end forthwith, without more and automatically. The final principle is the effect of fully discharging the parties from further liability under the contract from the moment the frustrating event occurs. Though accepted in civil law jurisdictions, the concept of partial discharge has been rejected in common law jurisdictions. This finds footing in the treatise Treitel on the Law of Contract, 11th edition para 50-07 it stated that:
“
…the contract is either frustrated or remains in force. There is no such concept as partial or temporary discharge frustration on account of partial or temporary impossibility…the concept of partial discharge in English law is restricted to obligations which are severable, whether in point of time or otherwise”
As a matter of logic, the doctrine of frustration operates to discharge a contract, bringing it to an immediate and definitive end. Once the doctrine is applied, the contract cannot be deemed suspended or temporarily inoperative; it is terminated entirely unless the parties expressly agree to revive it through a subsequent agreement.
72.
These are the principles that the Courts have applied time and again when asked to consider the plea of applying the doctrine of frustration. However, the doctrine of frustration is not absolute. The alleging party must prove that the frustrating event occurred without their fault or contribution. Self-induced frustration, where the event results from the party's own actions or breach, cannot be relied upon to terminate a contract.
73.
Turning back to the dispute at hand, the Covid-19 virus was first identified in December, 2019 and declared a global pandemic in March 2020. This Court in the case of Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission (Interested Party) (Petition 5 (E007) of 2021) [2021] KESC 22 (KLR), as a matter of general public notoriety, took judicial notice of the fact that the Covid-19 pandemic was a public health emergency that affected not just Kenya, but the whole world.
74.
We acknowledge that the Covid-19 pandemic was an extraordinary and unprecedented global event that disrupted every facet of life, affecting economies, healthcare systems, and daily activities across the world. Never in modern history had governments been forced to implement such widespread lockdowns, travel restrictions, and social distancing measures to contain a virus. The scale and impact of the pandemic are often compared to the Spanish Flu of 1918, which similarly caused widespread devastation, killing millions globally. Covid-19 stood out as unique in its reach and the overwhelming strain it placed on societies, economies, and public health infrastructure, with the world grappling for solutions in real time amidst uncertainty.
75.
We equally acknowledge that the pandemic had an effect on landlords and commercial properties causing income losses due to missed rental income, increased vacancies, and depreciated property values as businesses closed or moved online. Landlords also faced legal challenges over the terms of leases as well increased costs for adopting safety measures. It is the effects of the Covid- 19 pandemic on the landlords and the tenants that we are called to balance in this appeal.
76.
Both parties invited the Court to consider decisions made on the effect of the Covid-19 pandemic to contracts by courts in other jurisdictions for their persuasive value. The cases presented by both parties reflect a broad application of the doctrines of frustration and impossibility of performance in contractual disputes, particularly in light of Covid-19 related disruptions. The petitioner highlighted several decisions, including Porter Airlines Inc. v. Nieuport Aviation Infrastructure Partners GP, 2022 ONSC 5922 (Supreme Court of Canada), where force majeure rather than frustration was central, and U.S. cases such as 1140 Broadway LLC v. Bold Food, LLC, 2020 WL 7137817, 35 East 75th Street Corp. v. Christian Louboutin L.L.C., 2020 WL 7315470, and The Gap Inc. v. Ponte Gadea New York LLC, 2021 WL 861121 where the New York Courts emphasized that financial hardship alone does not meet the threshold for frustration of purpose. In In re: CEC Entertainment, Inc., No. 20-33162, 2020 WL 7356380, the U.S. Bankruptcy Court distinguished frustration from force majeure, holding that government restrictions alone were insufficient to discharge contractual obligations. The South African case Slabbert N.O. & Others v. Ma-Afrika Hotels t/a Rivierbos Guest House, (772/2021) [2022] ZASCA 152, found that impossibility due to government restrictions was temporary, and obligations resumed once restrictions were lifted. Similarly, the Irish case Kenneth Treacy v. Lee James Menswear Limited and James O’Regan, [2022] IEHC 600, concluded that financial hardship due to the pandemic did not absolve rental obligations.
77.
The respondent equally pointed on to several cases including Newbury, LLC v. Caffe Nero Ams Inc., No. 20184 CV01493-BLS2, 2021 WL 956069 where the Massachusetts Superior Court held that frustration was recognized when government orders temporarily rendered a lease’s purpose impossible. Similarly, in Development LLC v. Brooklyn Babies and Toddlers LLC, No. 510160/2020 the Appellate Division of the Supreme Court of the State of New York held that the impossibility doctrine applied because government measures directly prevented contract performance. While in the cases of Fitness Int’l LLC v. National Retail Props LP, 25 Wash. App. 2d 606, 524 P.3d 1057, 1065 (2023), and AGW Sono Partners, LLC v. Downtown Soho, LLC, 343 Conn 309, 273 A.3d 186 (2022), the Courts in the US states of Washington and Connecticut underscored the narrow application of frustration, emphasizing that contracts remain enforceable if alternative uses or partial performance are possible. What we note from these cases is that across jurisdictions, the courts underscore the stringent criteria required to invoke frustration or impossibility to discharge contractual obligations, striking a delicate balance between fairness and contractual certainty.
78.
We see no reason to depart from the principles of the doctrine of frustration as expressed in common law and applied by the courts in Kenya. As the various courts have cautioned time and again, it is a doctrine that must not be lightly invoked by parties or lightly applied by the courts. Where parties have provided for it in their agreement, then it is for the court to look at the agreement before applying the doctrine of frustration. However, where the parties have not made provision for this doctrine, then the courts fall back on common law and the parameters we have set out in the preceding paragraphs.
79.
Applying these parameters to the current matter, we note that the Covid-19 pandemic caused an exceptional disruption to educational institutions around the world. In response, governments were grappling for solutions in real-time amidst uncertainty and Kenya was no different. The most effective solution which was replicated the world over was government-mandated lockdowns and health measures forcing the temporary closure of all learning facilities.
80.
The virus was confirmed to have reached Kenya on 12th March 2020 with the initial cases reported in the capital, Nairobi and in the coastal area of Mombasa. On 15th March, 2020 the government directed all schools and higher learning institutions be closed from 20th March, 2020 until further notice. On 6th June, 2020, the Government announced that schools would begin to reopen gradually from 1st September, 2020.
81.
It was during this intervening period that the respondent issued its notice of termination on 10th July 2020. Among the reasons the respondent cited was the ‘the reduction of self-sponsored students following a Government directive on absorption of self-sponsored students as Government of Kenya students. Our Nakuru CBD campus was 100% dependent on self-sponsored students hence the unprecedented decline in student numbers.’
82.
The Court of Appeal noted that the change in law and policy as well the implementation of the government directives prior to signing the impugned lease agreement had not affected the respondent’s operations. This was demonstrated by the fact that the respondent was able to maintain its Nakuru CBD campus without a hitch until the year 2020, when it appears that the campus ran into financial trouble following the closure of the universities by the government directive due to the Covid-19 pandemic.
83.
The principle of pacta sunt servanda is one of the oldest most fundamental principles of international law that requires parties to honour their agreements and obligations. This is why the doctrine of frustration is interpreted narrowly to maintain the certainty of contracts. It is only when the frustration is substantial and the contract’s purpose becomes meaningless, that the courts should step in to apply the doctrine of frustration and discharge the parties. This intervention is intended to provide reprieve to a party where it would be unjust and unreasonable to hold them to their contract. Further, as is evident from the cases we have cited and expounded on hereinabove, a party is not absolved from performing their obligations under a contract simply because it has become more expensive or more difficult.
84.
We acknowledge that the respondent entered into the contested lease agreement to teach and train self-sponsored students. Additionally, the respondent's Nakuru CBD campus was heavily dependent on income from self- sponsored students. During the lockdown, the respondent, like many other higher learning institutions, was forced to close its doors albeit temporarily.
85.
The temporary closure of institutions of higher learning by the Government caused the respondent some financial hardship. However, we are of the considered view that this did not amount to an absolute impossibility of performance in the legal sense, especially once restrictions eased and the respondent, along with all learning institutions reopened and resumed normal learning. This is well demonstrated by the fact that once it vacated the petitioner’s premises, the respondent moved to another location within Nakuru City. It is a pertinent demonstration of the fact that the pandemic and lockdown measures by the government did not amount to the impossibility of performance. Further, the government restrictions did not bar the respondent entirely from teaching and training self-sponsored students, but only from using the traditional method of in-person teaching. One of the positives from the pandemic was the significant shift towards moving services online, and education was no different.
86.
As a result, we are of the considered view that financial hardship alone, even one stemming from an extraordinary event like the Covid-19 pandemic, does not automatically discharge a tenant’s rental obligations. Consequently, this Court arrives at a conclusion that in the circumstances of the present appeal, the Covid-19 pandemic did not constitute a frustrating event, that would allow the respondent to be discharged from further performance under the lease.
87.
Before closing, we must address the issue concerning the respondent’s notice of termination dated 10th July 2020 and subsequently vacation of the suit premises on 31st January 2021 that was in issue. We note this was not one of the issues that was certified as concerning general public importance. However, flowing from our finding hereinabove, its consideration is corollary to the main issues.
88.
The petitioner contends that the lease did not contain a termination clause, thus making the notice invalid. The respondent, in opposition, makes two key arguments. First, the respondent argues that the phrase ""sooner determination"" in the lease agreement is clear and unambiguous. It should be interpreted in its ordinary, literal sense, meaning the contract could end earlier than its full term under certain conditions. Second, the respondent using the doctrine of pari materia, arguing that the Court should interpret the lease in harmony with related laws. Specifically, Section 57(4) of the Land Act Cap 280 is cited. It provides that in a periodic tenancy, where no termination notice provision exists, either party can terminate the tenancy by giving notice equivalent to the tenancy period. This argument suggests that the lease agreement should be read to allow termination under similar conditions, aligning with this statutory provision.
89.
We note that Clauses 5.5, 5.27, 5.36 and Clause 7.10 of the Lease contained the phrase “or sooner determination” and from this, the respondent asks us to make a finding that the contract could end earlier than its full term under certain conditions. The trial court found that having perused the lease, it did not come across any termination clause. The appellate court held that the contract contents should be read in context and not as separate clauses rather as clauses that make up a whole. The Appellate Court on the hand concluded that the effect of the phrase “or sooner determination” in those clauses, was to allow the parties to opt out of the lease agreement prior to the fixed term of the lease and therefore, the trial Judge erred in finding that the phrase did not amount to a break clause entitling the parties to determine the contract before the expiry of the lease term.
90.
We are minded differently. The phrase “or sooner determination” may hint atsome intention that there was some possibility of the Lease terminating sooner than the expiry date. However, in the absence of a termination clause, this intention failed to crystallize and to our minds, the intention is neither clear nor unambiguous. From this one phrase, we are unable find that the parties intended to give themselves an exit window out of the agreed terms upon change of circumstances and we must look elsewhere to find an answer.
91.
Commercial leases in Kenya are governed by the Landlord and Tenant (Shops, Hotel and Catering Establishments) Act which was enacted in 1965 for the purpose of ‘the protection of tenants of such premises from eviction or from exploitation’. It creates controlled tenancies defined under Section 2(1) of the Act as arising when the lease is not in writing, or if it is in writing, contains a provision for termination or is for a period of less than five years.
92.
In controlled tenancies, the law severely curtails the landlord. According to Section 4 (2), (4) and (5), the party intending to terminate the lease must issue a termination notice, providing at least two months' notice to the other party. The receiving party then has one month to respond, indicating whether they intend to comply with the notice. Additionally, the termination notice cannot take effect unless it specifies the grounds upon which the requesting party seeks the termination. Further, a tenant may challenge such notice by filing a reference with the Business Premises Rent Tribunal. In such cases, the notice will not take effect until the Tribunal determines the reference, as stipulated under Section 6(1). During this process, the tenant is entitled to remain in occupation, paying the same rent, until the reference is resolved.
93.
Mr. William Maema, a senior legal practitioner in Kenya, in an article titled Kenya's archaic commercial leases law now ripe for repeal published in the Business Daily on 12th June, 2018 questioned the relevancy of the Landlord and Tenant (Shops, Hotel and Catering Establishments) Act which was enacted in 1965 in today’s economy. He contended that the statute no longer serves the interests of both the landlords and the tenants. On the one hand the owners of commercial properties, through the ingenuity of their lawyers, devised ways of ensuring that the leases avoid the application of the Act to their properties. They achieve this by drafting commercial leases in way that all the elements of a controlled tenancy as defined by the Act are excluded. Two key features of this ingenuity is that such leases have no termination clause and will run for a term exceeding five years. This enables landlords to operate outside the Act with the ability to take actions which would otherwise be prohibited under the Act. On the other hand, the tenants who the statute was intended to protect are forced to enter into long-term commercial leases, which they cannot terminate on a need basis.
94.
The impugned lease in this instant appeal appears to be one such lease, which has been crafted in such a manner as to avoid the application of the Landlord and Tenant (Shops, Hotel and Catering Establishments) Act. It is likely the reason why the respondent’s counsel requests the Court to apply Section 57 of the Land Act, Cap 280 Laws of Kenya. Section 57(1) (a) and (b) provides that where the term of a lease is not specified, and there is no provision of notice for termination, then it is deemed as a periodic lease, and the implied notice period is taken to be the periodic basis of payment of rent. The provisions provide as follows:
“
(a)
the term of the lease is not specified and no provision is made for the giving of notice to terminate the tenancy, the lease shall be deemed to be a periodic lease;
(b)
the term is from week to week, month to month, year to year or any other periodic basis to which the rent is payable in relation to agricultural land the periodic lease shall be for six months;”
95.
In such cases, Section 57(4) provides that a period tenancy may be terminated by either party giving notice to the other, the length of which is to be not less than the tenancy period. As we understand it, this means that either the landlord or the tenant can end the tenancy by giving a notice period at least as long as the period of the tenancy. For example, if it’s a monthly tenancy, at least one month's notice is required or for a weekly tenancy, at least one week's notice is needed.
96.
Applying this provision to the circumstance of this appeal, the respondent was to pay an increasing annual rent commencing Kshs.45,543,000/- and service charge quarterly in advance. Going by the provision in Section 57(4) of the Land Act, then the respondent should have given a three-month notice to the petitioner. On 10th July 2020, the respondent issued a three-month notice to the petitioner intimating its intention to terminate the lease and vacate the premises. That notwithstanding, the respondent did not reference or rely on this legal provision in its notice to the petitioner. Instead, its reliance on this provision appears to be a mere afterthought, used retroactively to justify the termination of the lease.
97.
Further, as we have found, the impugned lease lacked a termination clause, making the respondent’s actions constitute a unilateral termination. By proceeding with a unilateral termination, the respondent effectively breached the terms of the lease, rendering the termination notice void.
98.
Finding the termination notice to be void, and the respondent having vacated the suit premises in January, 2021, thereby breaching the lease, what remedies lie to the petitioner?
iii) Whether the appellant is entitled to the reliefs sought?
99.
As we have pointed out, the lease was operating outside the ambit of the the Landlord and Tenant (Shops, Hotel and Catering Establishments) Act. We therefore look to case law to find an appropriate remedy. The Environment and Land Court in the present appeal relied on the decision of the Court of Appeal in Kenya Commercial Bank Limited vs. Popatlal Madhavji & another [2019] eKLR where the appellate court held that termination of a lease without a termination clause is not possible and therefore the tenant was obligated to continue to occupy the suit premises for the entire period of the lease and pay the agreed rent. The Court held as follows:
“
But having found as we have above that an agreement to lease for a period of 5 years and 3 months had resulted from the terms outlined in the letter of 23rd December 1998 and the ensuing correspondence, the appellant was bound to a lease term of a period exceeding five years, which removed it from the ambits of Cap 301. This meant that termination of the lease mid-term was not available to the appellant. The consequence of this was that the notice of termination of 25th March 2002 could not validly terminate the lease, with the result, we find that, the appellant was obligated to continue to occupy the suit premises for the entire period of the lease, and to pay the agreed rent and service charge for the period upto the date of expiry, that being the 31st December 2003.”
100.
The Court of Appeal, in the present appeal, held that the trial court fell into error in condemning the respondent to making rental payments for the entire duration of the lease when it was no longer using or benefiting from the premises due to forces beyond its control.
101.
We note that two cases from the High Court are also often cited when dealing with this issue. In the case of Chimanlal Meghji Shah & Another vs. Oxford University Press (EA) Limited [2007] eKLR, the High Court (Warsame J. (as he then was)) ruled that it is unconscionable for a landlord to demand full rent for the remaining part of the lease period when such lease has been terminated. This is because the landlord reserves the right to offer the same premises to a different tenant for occupation. The Court went on to hold thus:
“What happens if the tenant cannot afford to pay the rent agreed and he wants to vacate the premises? What happens if the market is depressed and due to that economic depression, the tenant is unable to meet his obligation? It is because of such circumstances that landlords of premises vacated by tenants are required to look for other tenants. The landlord cannot perpetually wait and waste the premises simply because he had a fixed lease with no termination clause.”
102.
While in the case Indar Singh Limited vs Star Times Media Company Limited [2021] eKLR, the High Court (Majanja J.) held that a tenant cannot unilaterally terminate a fixed-term lease that has no termination clause. However, the defendant could not be forced to continue the occupation of the leased premises if it had decided to vacate citing the inability to meet its rental obligations. Therefore, while dismissing the plaintiff’s prayers, the court held that the plaintiff’s only remedy, in this case, would be a claim for damages for breach of the contract. The court specifically held as follows:
“
Even if the defendant had not terminated the lease and vacated the suit property as at the time this suit was brought, I would still not have granted the injunctive orders sought by the plaintiff. I am in agreement with the plaintiff that a tenant cannot unilaterally terminate a fixed term lease which has no termination clause. However, I have not come across any authority in support of the plaintiff’s contention that a tenant in a fixed term lease who is unable to pay rent to a landlord can be forced by the court to continue in occupation of the leased premises if it has decided to vacate citing inability to pay rent. In my view, the court cannot compel a tenant to continue in occupation of leased premises even if the tenant has no valid reason for vacating the premises. The plaintiff’s remedy in my view is in damages for breach of contract if it proves that the termination of the lease by the defendant was unlawful. Its remedy does not lie in compelling the defendant to continue in occupation of the suit property against its wishes.”
[Emphasis ours]
103.
The issue remaining largely unsettled, it now falls to us to find the way forward regarding how to go about the termination of a lease for a fixed term without a termination clause.
104.
We find persuasive value in the Court of Appeal’s finding in the case of Kasturi Limited vs. Nyeri Wholesalers Limited [2014] eKLR where it very aptly held that: “A tenant cannot impose or force him/herself/itself on a landlord.” The converse is equally true that a landlord cannot impose or force themselves on a tenant. This delicate balance is the cornerstone of harmonious co-existence and mutual respect in the rental world.
105.
Similarly, as Warsame J. (as he then was) articulated in Chimanlal Meghji Shah & Another v Oxford University Press (EA) Limited (supra) , we concur that it is unconscionable to compel a tenant to continue in occupation of a premises or for a landlord to demand full rent for the remaining portion of the tenancy when the tenancy has been terminated and the tenant vacated the premises. Both parties bear a responsibility to mitigate any losses incurred. Whereby landlords should actively seek new tenants to minimize potential financial harm, tenants must communicate any challenges that may affect their ability to fulfill their lease obligations. This mutual duty to mitigate loss underscores the importance of collaboration in navigating contractual challenges. This duty to mitigate was elaborated in African Highland Produce Limited v John Kisorio [2001] eKLR, where the Court of Appeal held that;
“
It is the duty of the plaintiff to take all reasonable steps to mitigate the loss he has sustained consequent upon the wrongful act in respect of which he sues, and he cannot claim as damages any sum which is due to his own neglect.”
106.
The duty to mitigate arises as soon as the injured party realizes an interest has been injured. They must act in the interest of both parties, provided this does not require them to suffer additional injury or engage in unreasonable expenditure or speculative litigation. Whether the actions in mitigation are reasonable depends on the specific facts of each case, with the burden of proving failure to mitigate resting on the defendant (See African Highland Produce Limited v John Kisorio [2001] eKLR, citing Halsbury's Laws of England, Vol. 11, Page 289, 3rd Edn 1955).
107.
For avoidance of doubt, it is our considered finding that, where the parties are compelled to disengage without mutual agreement, resulting in the termination of the lease either by the tenant vacating the premises voluntarily or by eviction initiated by the landlord, this shall be deemed a breach of contract. Consequently, we take the position that, notwithstanding the absence of a termination clause, it would be unconscionable to compel a tenant to remain in premises they no longer wish to occupy. Equally, it would be unreasonable to claim rent for the unexpired lease term after the tenant has vacated. Therefore, the remedy for such termination is rent due up to the date of vacating and damages for breach of contract. In such a case, the remedy is for the party responsible for the breach to be liable to pay damages.
108.
It is a well-established principle of law that damages for a breach of contract aim, subject to mitigation, to restore the claimant to the position they would have been in had the breach not occurred. This principle, known as restitutio in integrum, underscores the compensatory nature of contractual damages. Kenyan case law has consistently affirmed this approach, as seen in Kenya Industrial Estates Ltd vs. Lee Enterprises Ltd (NRB CA Civil Appeal No. 54 of 2004 [2009] eKLR) and Kenya Breweries Ltd v Natex Distributors Ltd (Milimani HCCC No. 704 of 2000 [2004] eKLR).
109.
However, it is equally established that general damages for breach of contract are not awardable in addition to quantified or special damages. The legal position on this issue was first stated in Dharamshi v Karsan [1974]
EA 41 by the Court of Appeal for East Africa and restated several times by the Court of Appeal in subsequent cases including Postal Corporation of Kenya v Gerald Kamondo Njuki t/a Geka General Supplies NRB CA Civil Appeal No. 625 of 2019 [2021] eKLR. The measure of damages follows the rule established in Hadley v Baxendale (1854) 9 Exch.341, which holds that damages should encompass losses arising naturally from the breach itself or those reasonably foreseeable by both parties at the time the contract was formed. This principle has been adopted in Kenyan jurisprudence, as demonstrated in Standard Chartered Bank Limited vs. Intercom Services Ltd & Others, NRB CA Civil Appeal No. 37 of 2003 [2004] eKLR. Such damages are special damages, which must be specifically pleaded and proven, a requirement reiterated in Coast Bus Service Ltd vs. Sisco Murunga Ndanyi & 2 others (NRB CA Civil Appeal No. 192 of 92 (UR)) and Charles C. Sande v Kenya Co-operative Creameries Ltd (NRB CA Civil Appeal No. 154 of 1992 (UR)).
110.
Applying these principles to the present circumstances, the petitioner argued that the respondent was obligated to continue paying rent for the lease term ending on 30th April 2022, and sought Kshs.162,469,481/- in financial losses as damages. This amount included Kshs.97,817,231/- for rent due until lease expiry and Kshs.64,652,250/- for premises restoration.
111.
The respondent vacated the premises on 31st January 2021, with a year and two months (14 months) remaining on the lease. Had the respondent not vacated the property, then the petitioner would have received the rent for these 14 months. However, we cannot turn a blind eye to the inordinate period that is 14 months that the respondents would have been expected to pay rent for premises that it was not in occupation of. Therefore, invoking the principles of mitigation, we find that it was the petitioner’s obligation to attempt and endeavour to market and find an alternative tenant for the suit premises rather than let the premises lie unoccupied for a period of 14 months. It is why, in exercise of our discretion, while also considering that we cannot predict the future, we find it reasonable to limit the petitioner’s claim to rent for a three- month period. We consider this time sufficient to conduct necessary renovations and actively market the premises to prospective tenants in a competitive market.
112.
Applying the principles of equity, we must strike a balance between the interests of the petitioner and those of the respondent. This is why, during our perusal of the record before the Court, the issue of the security deposit appears to have fallen through the cracks of the case. The security deposit for rent of Kshs.11,385,750 was paid by the respondent in accordance with Clause 3.3 of the initial Lease and by agreement, the same was applied to the impugned lease. Despite being raised by the respondent the issue was not given due consideration by the Environment and Land Court. The security deposit is a crucial component in commercial leases, serving as a financial safeguard for the landlord against potential losses or damages associated with tenant occupancy. Conversely, for tenants, the security deposit is a refundable asset, incentivizing them to maintain the premises and adhere to lease terms to recover the amount upon lease termination. Accordingly, we must give it due regard in crafting a remedy which balances the interests of both parties.
113.
While the petitioner sought damages for breach of contract, any such assessment should reflect reasonable mitigation efforts. Exercising our powers under Section 21 of the Supreme Court Act to make any orders or grant any relief that could have been made or granted by a court or tribunal of first instance, we make the following assessment. It is our considered opinion that the petitioner’s claim of Kshs.162,469,481/- is excessive for two main reasons. Firstly, the respondent agreed to pay Ksh.40,000,000/- for restoring the premises as per the consent recorded on 2nd June 2021 before the Environment and Land Court. Secondly, under the mitigation principle, we hold the view that it would have been unreasonable for the petitioner to wait over a year without securing a new tenant. As stated hereinabove, we consider three months to be a reasonable timeframe for renovations and re-leasing efforts by the petitioner.
114.
The respondent vacated the premises on 31st January 2021, with three months remaining in the lease year ending on 30th April 2021. According to the lease, the annual rent for this period was Ksh.55,357,799/-, making the prorated rent for February, March, and April 2021 Ksh.13,839,449.75. We therefore award the petitioner three months’ rent, totalling Ksh.13,839,449.75, minus the security deposit of Ksh.11,385,750/-. After deducting the security deposit, the final amount awarded is Ksh.2,453,699.75.
115.
Briefly addressing the question of VAT, on further perusal of the record, we note that the appellant failed to plead the issue of Value Added Tax in its statement of defence and counterclaim. That notwithstanding, our award pertains not to rent arrears, but rather to an award of damages. Consequently, the issue of VAT falls by the wayside.
C. Costs
116.
In the circumstances and for the reasons given above, the appeal is partially successful. In line with our decision in Jasbir Singh Rai & 3 others vs. Tarlochan Singh Rai & 4 Others, SC Petition Application No. 4 of 2012; [2014] eKLR, we are inclined to order that parties bear their own costs. Accordingly, in this instance, we find that what commends itself to us is that we direct each party to bear its own costs.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/74/eng@2024-12-06
Petition (Application) E024 of 2023,"Nairobi Bottlers Limited v Ndungu & another (Petition (Application) E024 of 2023 & Application E030, E034 & E038 of 2023 (Consolidated)) [2024] KESC 73 (KLR) (6 December 2024) (Ruling)",Ruling,Supreme Court,Supreme Court,MK Ibrahim,6 December 2024,2024.0,Nairobi,Civil,"Nairobi Bottlers Limited vs Mark Ndumia Ndungu, Coca Cola Central, East & West Africa Limited",[2024] KESC 73 (KLR),,"Before the court are four motions filed by Mark Ndumia Ndungu, the 1st respondent/applicant, arising from the decision of this court in a Taxation decision delivered on August 30, 2024. These motions seek similar orders and are addressed collectively in this ruling to save judicial time. The motions, filed on September 5, 2024, concern Petition No E024 of 2023 and Applications Nos E030, E034, and E038 of 2023. The 1st respondent/applicant seeks to set aside or review the Taxing Officer’s decision regarding instruction fees and other items related to the definition and application of ""folios."" The applicant challenges the Taxing Officer’s findings, which include disagreements on the taxed instruction fees for various applications.","The 1st respondent/applicant disputes the taxed instruction fees and other items in the bill of costs dated November 29, 2023. Specifically, the applicant claims that the Taxing Officer failed to account for several factors, such as the high compliance costs and the complex nature of the case. The applicant argues that the instruction fees were taxed too low, particularly in the context of a significant consumer rights issue involving the appellant/respondent.
In reviewing the applications, the Taxing Officer’s decisions regarding instruction fees for various petitions and applications are scrutinized. The Taxing Officer’s discretion in determining fees is grounded in the Supreme Court Rules, 2020, particularly Paragraph 9(2) of the Third Schedule, which provides for the consideration of several factors when determining the reasonableness of fees. The court emphasizes that taxation is not a mathematical exercise and must consider the nature of the appeal, the amount involved, and the complexity of the issues at hand.
The 1st respondent/applicant's objections regarding the taxation of instruction fees and the definition of ""folio"" are also discussed. The court finds that while the Taxing Officer applied the ""folio"" definition in a manner that could be updated, the Taxing Officer’s approach to instruction fees was reasonable and justified. The court upholds the Taxing Officer’s decisions on the instruction fees for Applications Nos E030, E034, and E038 of 2023, deeming them fair and in accordance with legal standards.
Finally, the court remits the bill of costs to the Taxing Officer for the purpose of reconsidering other contested items related to ""folios,"" ensuring that the sums are reasonable and aligned with the Supreme Court Rules. The ruling partially supports the 1st respondent/applicant’s motions, leading to a mixed outcome for the parties involved.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/73/eng@2024-12-06
Application E024 of 2024,Kithangari & 4 others v Mutahi (Application E024 of 2024) [2024] KESC 72 (KLR) (29 November 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, I Lenaola, W Ouko",29 November 2024,2024.0,Nairobi,Civil,"Alex njue Kithangari,Muriithi Kithangari,Peterson Mugo Kithangari, Njeru Tetu,Kathangari king'angi
vs Benson Gichohi Mutahi",[2024] KESC 72 (KLR),,"The applicants sought leave from the Supreme Court to file their Notice of Appeal out of time after the Court of Appeal's decision on June 7, 2024, overturned a ruling in their favor. The Court of Appeal had previously upheld the applicants' counterclaim, but its judgment in Civil Appeal No. 105 of 2021 at Nyeri reversed this decision. Dissatisfied with the Court of Appeal's ruling, the applicants intended to appeal to the Supreme Court but failed to meet the 14-day filing requirement for the Notice of Appeal as outlined in rule 36(1) of the Supreme Court Rules, 2020. They applied for an extension of time on August 28, 2024, citing delays due to the inaction and unresponsiveness of their legal representatives, leading them to change counsel multiple times. The respondent opposed the application, arguing that the delay was unjustified and inordinate.","The Supreme Court evaluated the application based on the principles for granting extensions of time. These principles include the following considerations:
Equitable Remedy: Extension of time is not a right but an equitable remedy available at the court's discretion.
Burden of Proof: The applicant must demonstrate to the satisfaction of the court that there is a valid reason for the delay.
Reasonable Cause: The court examines whether the delay is justifiable and whether there was due diligence in pursuing the case.
Prejudice to Respondents: The court considers whether granting the extension would cause undue prejudice to the respondent.
Timeliness: The application should not be unduly delayed, and in some cases, public interest factors should also be considered.
In this case, the applicants claimed the delay was caused by their advocates' inaction. However, the Court found that no credible evidence supported these claims, and the applicants failed to show any proactive efforts to follow up with their advocates. The delay was deemed inordinate, lasting 68 days beyond the filing deadline, and no sufficient justification was provided.
Given these findings, the Court dismissed the application for an extension of time and ruled that the applicants had not demonstrated compelling reasons for the delay. The applicants were reminded that responsibility also lies with them to ensure their cases are pursued diligently, even when represented by counsel.
As a result, the application was dismissed, with each party ordered to bear their own costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/72/eng@2024-11-29
Application E001 of 2024,Mohamed v Diamond Trust Bank Kenya Ltd & another (Application E001 of 2024) [2024] KESC 71 (KLR) (29 November 2024) (Ruling),Judgement,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, SC Wanjala, N Ndungu, I Lenaola",29 November 2024,2024.0,Nairobi,Civil,Mohamed v Diamond Trust Bank Kenya Ltd & another,[2024] KESC 71 (KLR),,"Before this Court are two applications filed by the Applicant. The first is an Originating Motion dated 11th January 2024 and filed on 25th July 2024, seeking to review the decision of the Court of Appeal, which declined to certify the applicant’s intended appeal to this Court. The intended appeal concerns the judgment delivered on 14th April 2023 in Civil Appeal No. E074 of 2021 (Diamond Trust Bank Limited vs. Fuad Mahmoud Mohamed & Diamond Trust Insurance Agency Ltd). The applicant seeks certification for an appeal that raises matters of general public importance.
The second application is a Notice of Motion dated 17th July 2024, filed on 25th July 2024, seeking leave to amend the Originating Motion. This ruling will dispose of both applications, which are correlated, in order to save judicial time.
Upon reviewing the Originating Motion filed pursuant to Article 163(4)(b) and (5) of the Constitution, and Sections 15(1) & 16(2) of the Supreme Court Act 2011, the applicant raises several questions for determination:
Whether the applicant is entitled to leave to appeal to the Supreme Court following the dismissal of its appeal from the Court of Appeal.
Whether, based on the facts and circumstances set out in the application, a substantial miscarriage of justice would occur if the applicant were locked out of the appellate process.
Whether the Court of Appeal's decision refusing certification should be reviewed.
Costs.","Upon considering the averments in the supporting affidavit of Fuad Mahmoud Mohamed, the applicant argues that the case involves issues of general public importance, such as the duties and obligations in a bancassurance arrangement. Despite the Court of Appeal’s finding that bancassurance was not sufficiently pleaded, the applicant believes that the issue is of significant public interest and seeks the Court's review of the certification.
The 1st respondent, through a replying affidavit sworn by Faith Ndonga, opposes the application, arguing that the application for certification before the Court of Appeal was filed out of time, rendering it incompetent. The 1st respondent further argues that the Court of Appeal correctly determined that the issue raised by the applicant does not transcend the contractual matter at hand and is not of general public importance.
Additionally, the applicant seeks to amend the Originating Motion to specify the points of general public importance. The proposed amendments include clarifying whether a bank offering bancassurance services owes a duty of care to its customers and the legal status of a judgment that proceeds without a critical document.
The 1st respondent opposes the amendment, citing an inordinate delay and arguing that it lacks a statutory basis. The respondent claims that the amendments aim to address weaknesses in the original application and will prejudice the 1st respondent.
Upon considering the applications, responses, and opposing arguments, we first address the propriety of the substantive application for review of certification. We observe that the application for review was filed well beyond the 14-day window stipulated under Rule 33(2) of the Supreme Court Rules. The applicant filed the Originating Motion on 17th January 2024 and presented the physical copy on 25th July 2024, a delay of approximately six months.
Rule 12 of the Supreme Court Rules requires pleadings to be filed in both printed and electronic form, and in case of inconsistency, the printed copy prevails. The applicant’s failure to meet this requirement and seek an extension of time renders the Originating Motion improperly filed.
Moreover, the applicant did not seek leave for an extension of time for filing the Originating Motion. As per Rule 4 of the Court’s Rules, a party must apply for an extension of time before proceeding. Given that the motion is not properly on record, it is unnecessary to delve into the merits of the appeal or the certification issue.
In light of the above, we find that the Originating Motion is not properly before the Court and must be struck out. Consequently, the application to amend the Originating Motion also fails.
Regarding costs, we adopt the principle that costs follow the event. However, considering the circumstances of this case, each party shall bear its own costs.
Orders:
The Originating Motion dated 11th January 2024 and filed on 25th July 2024 is hereby struck out.
The Notice of Motion dated 17th July 2024 and filed on 25th July 2024 is hereby dismissed.
No order as to costs.",Struck Out,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/71/eng@2024-11-29
Petition (Application) 5 of 2017,"British American Tobacco Kenya PLC (Formerly British American Tobacco Kenya Limited) v Ministry of Health & 2 others; Kenya Tobacco Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party); Kariuki, Ndegwa & Kubuthu (Applying as Secretary, Chairperson & Treasurer of Kiambu County Welfare Association) & 6 others (Interveners) (Petition (Application) 5 of 2017) [2024] KESC 68 (KLR) (22 November 2024) (Ruling)",,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, SC Wanjala, N Ndungu, I Lenaola",22 November,2024.0,Nairobi,Civil,"British American Tobacco Kenya PLC (Formerly British American Tobacco Kenya Limited) v Ministry of Health & 2 others; Kenya Tobacco Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party); Kariuki, Ndegwa & Kubuthu (Applying as Secretary, Chairperson & Treasurer of Kiambu County Welfare Association) & 6 others (Interveners)",[2024] KESC 68 (KLR),,"Upon perusing the Notice of Motion dated 17th July 2024 and lodged before this Court on 21st August 2024, the Applicants sought the following orders:
a. To be enjoined as parties in the matter and designated as ""Intervener/Applicant"" in Supreme Court Petition No. 5 of 2017 for the purpose of applying for a review of the judgment made on 26th November 2019, in accordance with Section 21A of the Supreme Court Act Cap 9B, Laws of Kenya. b. That the costs of the application be provided for.
The affidavit in support of the motion, sworn by James Gicheru Kariuki, and written submissions both dated 17th July 2024, indicated that the applicants sought to be enjoined in the matter to apply for the review of the judgment of 26th November 2019. Their petition to the Chief Justice had been referred to the Office of the Ombudsman, which after analyzing the petition, advised them to move the Court accordingly. The applicants argued that only a party to the proceedings could apply for a review of the judgment and that they should be enjoined as parties for this purpose to reveal some concealed statutory provisions.","In considering the application, the Court took into account the case of British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health & 2 others, where the guidelines for public participation were set out, and the Court upheld the decision of the Court of Appeal. The Court also noted that the judgment of 26th November 2019 upheld the Regulations and the Tobacco Act provisions as constitutional, and did not violate any rights of the appellants or tobacco industry players.
Upon reviewing the applicable laws and rules, the Court determined the following:
Supreme Court Act and Rules: The Supreme Court Act 2011 and the Supreme Court Rules 2020 provide two instances for a party to be enjoined in Supreme Court proceedings. Rule 19 allows for amici curiae (friends of the Court) to participate based on expertise, impartiality, or public interest. Rule 24 permits the joinder of interested parties, with certain conditions, including the application being filed within seven days of the response to the proceedings.
Enjoining as an Intervener: The Court noted that the Supreme Court Act and Rules do not contemplate a situation where a party can be joined as an intervener after the final decision of the Court. The Rules and the Practice Directions are clear that amicus curiae or interested parties must apply during the proceedings, not after the judgment is rendered.
Failure to Show Prejudice or Grounds for Review: The applicants failed to demonstrate the grounds they intended to advance in seeking a review of the judgment, apart from alleging concealed statutory provisions. They also failed to show any prejudice they would suffer if their application was denied.
Misguided Application: The application was deemed misguided, frivolous, and an abuse of the court process. It was filed almost five years after the judgment was rendered, and no response had been filed by the respondents.
Conclusion
For the reasons outlined, the Court dismissed the applicants' Notice of Motion with no order as to costs, given that the motion was unopposed.
Orders:
The Applicant’s Notice of Motion dated 17th July 2024 and filed on 21st August 2024 is hereby dismissed.
No order as to costs, as the motion was not opposed.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/68/eng@2024-11-22
Application E017 of 2024,"Kibutiri (Suing as the Legal Representative of the Estate of Loise Wanja Kibutiri) v Njoro, Kibutiri & Kibutiri (Sued as the Legal Representatives of the Estate of James Njoro Kibutiri) & another (Application E017 of 2024) [2024] KESC 70 (KLR) (22 November 2024) (Ruling)",Judgement,Supreme Court,Supreme Court,"MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",22 November 2024,2024.0,Nairobi,Civil,"Kibutiri (Suing as the Legal Representative of the Estate of Loise Wanja Kibutiri) v Njoro, Kibutiri & Kibutiri (Sued as the Legal Representatives of the Estate of James Njoro Kibutiri) & another",[2024] KESC 70 (KLR),,"Upon perusing the Originating Motion by the applicant dated 9th May 2024 and filed on 13th May 2024 pursuant to Article 163(4)(b) of the Constitution, Section 15 of the Supreme Court Act, Cap 9B, and Rule 33 of the Supreme Court Rules, 2020, the applicant seeks:
A review of the ruling by the Court of Appeal (Musinga, Kantai & Gachoka, JJ.A) dated 26th April 2024, which denied certification of the intended appeal as one involving matters of general public importance.
Certification of the intended appeal against the judgment of the Court of Appeal (Ouko (P) (as he then was), Okwengu & Makhandia, JJ.A) delivered on 25th September 2020 in Civil Appeal No. 156 of 2019, David Muthee Kibutiri (suing as the legal representative of the estate of Loise Wanja Kibutiri) vs. Thomas Kibutiri Njoro & Others, as consolidated with Civil Appeal No. 192 of 2019, David Kibutiri Njau (suing as the legal representative of the estate of Loise Wanja Kibutiri) vs. David Muthee Kibutiri & Others.
The application was supported by an affidavit sworn by David Muthee Kibutiri, contending that the appeal raises substantial questions of general public importance concerning the doctrine of resulting trusts. The questions posed included:
The nature and legal conceptualization of a resulting trust.
Whether resulting trusts imply gifting without express intention.
Whether the contributor’s intention solely determines ownership.
The timing and permanence of ownership under resulting trust principles.
The public interest of the doctrine’s application in Kenyan jurisprudence.
The applicant relied on legal authorities including Snell’s Principles of Equity (27th Ed.), and cases such as Re Golcar Sick and Funeral Society, Westdeutsche Landesbank Girozentrale vs. Islington LBC, Pettitt vs. Pettitt, Kerr vs. Baranow, and Vanasse vs. Sequeine. The respondents did not file any response to the application.","The Court considered the relevant legal provisions including Article 163(5) of the Constitution, Section 15B of the Supreme Court Act, and Rule 33 of the Supreme Court Rules 2020, in light of the Court’s precedents on certification, particularly:
Hermanus Phillipus Steyn vs. Giovanni Ruscone SC App No. 4 of 2013
Malcolm Bell vs. Daniel Toroitich Arap Moi & Another SC App No. 1 of 2013
The Supreme Court examined the basis for the Court of Appeal’s denial of certification. It found that the appellate court dismissed the application not on the substantive issue of whether the matter was of general public importance, but because the application was filed out of time without an extension being sought or granted.
Specifically, the appellate court held:
“This application was filed on 5th November 2020, forty-one (41) days after the impugned judgment. No extension of time was granted by the Court prior to the filing. This anomaly renders the entire application incompetent...”
Accordingly, the Supreme Court held that the Court of Appeal did not reject the application on the merits of general public importance, but due to procedural default. Thus, there was no basis for the Supreme Court to interfere with the appellate court's invocation of its own procedural rules.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/70/eng@2024-11-22
Petition E015 of 2024,Nyagol v Judicial Service Commission & another (Petition E015 of 2024) [2024] KESC 69 (KLR) (22 November 2024) (Judgment),,Supreme Court,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",22 November 2024,2024.0,Nairobi,Civil,Nyagol v Judicial Service Commission & another,[2024] KESC 69 (KLR),,"The Appellant, Judith Nyagol, filed the appeal dated 4th April 2024, which was amended on 15th May 2024 pursuant to a consent Order dated 14th May 2024. The appeal is brought under Article 163(4)(a) of the Constitution. The Appellant challenges the judgment of the Court of Appeal (P. Nyamweya, F. Ochieng & W. Korir, JJ.A) delivered on 23rd February 2024 in Civil Appeal No. E097 of 2021 wherein the Court of Appeal overturned the decision of the Employment and Labour Relations Court (Wasilwa, J.) in ELRC Petition No. E005 of 2020 and held that the Respondents followed due procedure when dismissing the Appellant from employment. The Court of Appeal also dismissed the Appellant’s Cross- Appeal where she sought reinstatement.
2.
Notably, before this Court the 1st and 2nd Respondents filed a notice of preliminary objection dated 6th June 2024 challenging this Court’s jurisdiction to hear the appeal on grounds that it does not raise questions touching on the application or interpretation of the Constitution.
B. Background
3.
The Appellant was employed by the 1st Respondent on 20th June 2012 as a Resident Magistrate and deployed to Sirisia Law Courts. She was later transferred to Kericho Law Courts, where she served in a similar capacity. It was at this station that she was arrested on 20th August 2015 by officers from the Ethics and Anti- Corruption Commission (EACC) on allegations of corruption.
4.
Subsequently, she was charged with the offence of corruptly soliciting for benefit contrary to Section 39(3) of the Anti-Corruption and Economic Crimes Act (ACECA). The particulars were that on 27th July 2015, while serving as a judicial officer at Kericho Law Courts, she corruptly solicited for a benefit of Kshs.20,000/= from Wilson Yegon, for purposes of securing a favourable penalty in Kericho Case No. 3140 of 2014 wherein Wilson Yegon was the accused person. She was also charged with corruptly receiving a benefit contrary to Section 39(3) of ACECA. The particulars were that the Appellant received a benefit of Kshs.10,000/= from Wilson Yegon as an inducement to deliver a favourable outcome in the said Criminal Case.
5.
Meanwhile, the Appellant received a letter dated 4th September 2015 interdicting her from employment and a charge of similar date. The charge read as follows:
That on 27th July 2015 at Kericho Law Courts as Resident Magistrate you corruptly solicited a benefit of 20,000/= from Wilson Yegon through Robert Cheruiyot as inducement so as to award a favourable penalty in a Kericho case file Number 3140 of 2014 where the said Wilson Yegon was an accused person.
Further to this on 20th August, 2015 at the Kericho Law Courts, as the Resident Magistrate, you corruptly received a benefit of Kshs.10,000/= from Wilson Yegon through Robert Cheruiyot as inducement so as to award a favourable penalty in a Kericho case file No. 3140 of 2014 where the said Wilson Yegon was an accused person.
This is contrary to Section 39(a) as read with Section 48(1) of ACECA.”
6.
Upon hearing the prosecution’s 12 witnesses, the Anti-Corruption Court held that there was no evidence: to show that the Appellant either asked Robert Cheruiyot (1st accused), to solicit the bribe on her behalf or that she contacted anyone to solicit for a bribe; or that the Appellant received the bribe from the 1st accused. Furthermore, that it was not established beyond reasonable doubt that the money recovered from the Appellant’s purse was not planted there, especially considering that the door to her chambers was open and there was no one inside at the time of the search conducted by the EACC officers. In any event, Wilson Yegon was eventually convicted. Consequently, on 15th September 2016, the Appellant was acquitted under Section 210 of the Criminal Procedure Code.
7.
Subsequently, the Appellant presented proof of her acquittal to the 1st Respondent who in turn, informed her by a letter dated 27th January 2017, to await the final judgment of the criminal case since the 1st accused had been placed on his defence. On 13th January 2017, the Appellant’s co-accused was convicted of soliciting for benefit contrary to Section 39(3) as read with Section 48(1) of ACECA and corruptly receiving a benefit contrary to Section 39(2) as read with Section 48(1) of ACECA. He was fined Kshs.100,000/= and in default to serve 1-year imprisonment for each count.
8.
On 22nd August 2017, the Appellant received a letter of similar date titled “commencement of fresh charges against you” from the Office of the Chief Justice communicating the following charges:
Charge 1
Breach of Rule 6 of the Judicial Code of Conduct and Ethics, Legislative Supplement No. 24, Legal Notice No. 50.
Rule 6 of the Judicial Code of Conduct and Ethics states that “a judicial officer shall not knowingly convey or permit others to convey the impression that anyone is in a special position to influence him.” That you knowingly permitted one Robert Cheruiyot to convey the impression to one William Yegon that he was in a special position as a staff of Kericho Law Courts to influence you to award a favourable penalty in Kericho CMC Criminal Case No. 3140/2014 Republic vs William Yegon contrary to Rule 6 of the Judicial Code of Conduct and Ethics, 2003.
Charge 2
Breach of Rule 5 of the Judicial Code of Conduct as read together with Paragraph 9(a) Appendix 1, Part III of the Public Officers Ethics Act, 2003.
Rule 5 of the Judicial Code of Conduct and Ethics states that in all activities a Judicial Officer shall exhibit respect for the rule of law, comply with the law, avoid impropriety and appearance of impropriety and act in a manner that promotes public confidence in, the integrity and the impartiality of the Judicial Service.
That in or the month of August 2015, the officers from the Ethics and Anti-Corruption Commission recovered Kshs.10,000/= from your bag in your chambers at Kericho Law Courts, money believed to have been a bribe for you to give a favourable penalty to the accused person in Kericho CMC Criminal Case No. 3140/2014, Republic vs William Yegon.
9.
We note at this early stage that the interdiction letter which attached charges of the 4th September 2015 referred to a ‘Wilson Yegon’, and yet the Respondents letter to the Appellant of the 22nd August 22017 referred to a ‘William Yegon’, However, we can glean from the record that the name “William” was inadvertently or otherwise mistakenly used in the place of “Wilson”. Nonetheless, the Appellant responded and denied the allegations in a letter dated 30th August 2017. She was later summoned by the Respondents through a letter dated 5th February 2018 for a disciplinary hearing scheduled for 5th March 2018. The Appellant appeared before the disciplinary committee on the material date with her advocate, Wambeyi Makomere. According to the Appellant, her advocate was denied audience.
10.
Later, on 24th August 2018, the Appellant received a dismissal letter based on her conduct during the events leading up to the corruption case. According to the letter, the Appellant’s conduct was deemed improper and exhibited a lack of propriety. Dissatisfied with the decision, the Appellant applied for a review, through her letters dated 24th September 2018 and 7th November 2018, as well as reminders dated 25th September 2020 and 2nd June 2020. By a letter dated 1st October 2020, the 1st Respondent declined to review its decision stating that the Appellant had not presented new material facts which would warrant a review and further, the acquittal in the criminal case could not be the basis for her reinstatement.","i. Whether the appeal meets the constitutional threshold under Article 163(4)(a) of the Constitution
44.
This Court’s jurisdiction is set out in Articles 58, 140 and 163 of the Constitution and the Supreme Court Act, Cap 9B of the Laws of Kenya. The instant appeal is anchored on Article 163(4)(a) of the Constitution, Section 15(2) of the Supreme Court Act and Rules 38(2) and 39 of the Supreme Court Rules, 2020 and the Appellant has claimed that issues of constitutional interpretation or application have been raised.
45.
There are numerous decisions touching on this subject, Lawrence Nduttu & 6000 Others vs Kenya Breweries Ltd & Another, SC Petition No. 3 of 2012 being the leading authority. Further, given our finding in Rutongot Farm Ltd. vs Kenya Forest Service & 3 Others, SC Petition No. 2 of 2016; [2018] eKLR, and considering the pleadings, history and trajectory of the matter as well as the parties’ submissions, we find that the present appeal raises questions centred on the interpretation and application of the Constitution. Specifically, the appeal is pegged on the alleged violation of the Appellant’s rights under Articles 47 and 50 of the Constitution. We also note that the dispute presented before the ELRC was similarly anchored on whether there was any violation of the Appellant’s constitutional rights. This invariably will entail an exercise of evaluation of questions around the interpretation and application of the Constitution.
46.
We therefore find this Court has jurisdiction to hear and determine the appeal. The preliminary objection by the Respondents is therefore unmerited and dismissed.
ii) Which legislation applies to the employment matters of judicial officers and staff: the Judicial Service Act (JSA) or the Employment Act (EA)?
47.
On this question, the Appellant contends that the Court of Appeal erred in applying Section 41 of the EA as opposed to Articles 47 and 50 of the Constitution, or even Section 4 of the FAAA and the JSA. She further urged that different benches of the Court of Appeal have in the past, taken different positions as relates to this issue.
48.
The Respondents, on the other hand, contended that the issue was raised before this Court for the first time and was not the subject of consideration by the Superior Courts below. In any event, that both the EA and the JSA apply to the present appeal. They further supported this submission by stating that the Appellant heavily relied on the provisions of the EA at the ELRC and was therefore estopped from claiming that the EA does not apply.
49.
We have considered the contents of the petition before the ELRC. The Appellant relied on various Articles of the Constitution, Sections 43(1) and 47(5) of the EA, the JSA and the Judiciary Human Resource Policies & Procedures Manual, in that order. In the body of the petition, however the Appellant focused primarily on the constitutional provisions. Equally, the ELRC (Wasilwa, J.) relied on Sections 41 and 45(2) of the EA, the JSA, FAAA and the Judiciary Human Resource Policies and Procedures Manual and held that the Appellant was not subjected to a fair disciplinary process, which meant that her dismissal was also unfair. Similarly, at the hearing of the appeal, the Appellant relied on the EA and submitted that the Respondents’ actions contravened the JSA, the Evidence Act, the EA, and various Articles of the Constitution.
50.
The question as to which legislation applies to the termination of a judicial officer’s employment, though not expressly raised before the superior courts below, is an issue that has transmuted from the natural course of the proceedings.
51.
It is the rule of thumb in statute interpretation that a specific law governing a matter should be applied instead of a general law touching on the matter, lex specialis derogat legi generalis. In India, for instance the Supreme Court applies a harmonious construction of the law, that is, general and specific statutes will generally be considered to give effect to a legal policy. However, if the two cannot be reconciled, a general law is impliedly repealed, to the extent that a special law provides for an issue. (See Commercial Tax officer, Rajasthan vs Binani Cement Ltd. & Another, Civil Appeal No. 336 of 2003) This position is founded on the Latin maxim generalia specialibus non derogant which means that general law yields to special law where they operate in the same field and on the same subject. The exception however, is where it is clear from the language employed that the Legislature intended for a general law to prevail over a special law, in which case, a special law would have to yield to a general law.
52.
In St. Stephen’s College vs University of Delhi, (1992) 1 SCC 558, Kasliwal J., in his partial dissent to the majority judgment, stated as follows:
“
140.
…The golden rule of interpretation is that words should be read in the ordinary,natural and grammatical meaning and the principle of harmonious construction merely applies the rule that where there is a general provision of law dealing with a subject, and a special provision dealing with the same subject, the special prevails over the general. If it is not constructed in that way the result would be that the special provision would be wholly defeated. The House of Lords observed in Warburton v. Loveland, (1824-34) All ER Rep 589 as under:
“
No rule of construction can require that when the words of one part of statute convey a clear meaning
… it shall be necessary to introduce another part of statute which speaks with less perspicuity, and of which the words may be capable of such construction, as by possibility to diminish the efficacy of the first part.” (Anandji Haridas and Co. (P) Ltd. v. S.P. Kasture, (1968) 1 SCR 661, Patna Improvement Trust v. Lakshmi Devi, 1963 Supp (2) SCR 812, Ethiopian Airlines v. Ganesh Narain Saboo, (2011) 8 SCC 539, Usmanbhai Dawoodbhai Memon v. State of Gujarat, (1988) 2 SCC 271, South India Corpn. (P) Ltd. v. Secy., Board of Revenue, Trivandrum, (1964) 4 SCR 280, Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27)”
53.
This rule has gained notoriety so much so that Lord Cooke of Thorndon in Effort Shipping Co. Ltd. vs Linden Management, SA [1998] AC605 stated that “… it represents simple common sense and ordinary usage”. Bennion, Statutory Interpretation, 5th Ed. (2008) also explains that it is a rule that is based “… on the rules of logic, grammar, syntax and punctuation, and the use of language as a medium of communication generally.” This rule also applies to general provisions in one statute and the special provisions in another, and also in resolving a conflict between general and special provisions in the same legislative instrument.
54.
Applying the principle of generalia specialibus non derogant to the present context, the JSA, being a special law for matters of appointment, removal and discipline of judges, judicial officers and staff supersedes the EA, to the extent that it specifically provides for certain matters. The EA, on its part, will apply in matters relating to the employment and other consequential aspects of judges, judicial officers and staff generally and where there are gaps in the JSA.
iii. Whether the Appellant’s right to a fair trial was violated, and if so, how
55.
Under this head, the Appellant raised several issues that we have summarized as follows:
a.
The extent of the applicability of circumstantial evidence in disciplinary proceedings for judicial officers;
b.
Whether there was sufficient evidence to overturn the ELRC’s decision;
c.
Application of the doctrine of double jeopardy in matters relating to disciplinary proceedings for judicial officers and whether there was indeed double jeopardy in the present case;
d.
Whether in denying the Appellant’s counsel the opportunity to address the 1st Respondent’s disciplinary committee breached the Appellant’s right to fair trial;
e.
Whether the Appellant was dismissed on account of the charges dated 4th September 2015 or those dated 22nd August 2017;
f.
Whether the delay in communicating the Respondents’ decision prejudiced the Appellant’s right to a fair trial; and
g.
Should the Supreme Court expand the principles in Mathew Kipchumba Koskei vs Baringo Farmers, ELRC Cause No. 37 of 2013; [2013] eKLR?
56.
On circumstantial evidence, the Appellant stated that if indeed there was any, it was disparaged by the judgement of the Anti-Corruption Court. The Respondents, on the other hand, stated that there was overwhelming circumstantial evidence incompatible with her evidence of innocence, and her responses to the questions raised were inconsistent thus diminishing her credibility. The report from the 1st Respondent at paragraph 77 reads as follows:
“
77.
That upon deliberation the Committee notes that despite there being no direct evidence linking Hon. Nyagol to the criminal charges brought against her, there is however circumstantial evidence that she was aware of the events leading to the criminal charges. As such her conduct exhibited impropriety and compromised the integrity and impartiality of Judicial Service. In the circumstances it can be said that she knowingly conveyed and permitted Mr. Cheruiyot to convey an impression that she was in a special position to influence the judgment.”
The Court of Appeal, on its part, merely adopted and reiterated the reasons given by the Respondents and did not therefore test the alleged circumstantial evidence. To our minds and in the circumstances, it is obvious to us that the Court of Appeal abdicated its primary role as a first appellate court, to re-analyze and re-evaluate the evidence placed before the trial court.
57.
In finding as above, we take cognizance of our decision in the case of Mutava vs Tribunal Appointed to Investigate the Conduct of Justice Joseph Mbalu Mutava, Judge of the High Court of Kenya, SC Petition 15” B” of 2016; [2019] KESC 49 (KLR), wherein at paras. 203-205, we held as follows:
203.
… We need to state that once a standard of proof has been agreed upon, the evidence on record whether circumstantial or direct must be tested against that accepted standard…
204.
… To our mind therefore, all the cases cited by the petitioner, including the case of R v. Taylor, speak to one thing: they reaffirm the principle that circumstantial evidence is the use of reasoning and logic to get to a conclusion. When relying on circumstantial evidence, a Court or Tribunal is presented with a set of facts through which an inference may be drawn to prove an existence of a fact that inference, must be supported by the facts presented. Since both parties agree on the applicable standard of proof, the evidence on record must then be tested against that standard. In this case, the inference should not go beyond reasonable doubt but should be higher than a balance of probabilities. In essence, it is not enough that an alleged fact is more likely to have happened but there should be a level of certainty or real possibility that it must have happened.
205.
The Supreme Court of Papua New Guinea in the case of Nara v. State [2007] PGSC 54; SC1314 (28 November 2007) aptly captured the principles guiding the application of circumstantial evidence as follows:
“
What these principles say in simple terms is that where a case against an accused person is only circumstantial, he must be acquitted unless such a person's guilt is the only rational and reasonable inference open within the four corners of the circumstantial evidence that is actually before the Court on the required standard of proof, beyond any reasonable doubt. This means the Court must consider only the evidence properly adduced and presented before the Court and nothing else.” [Emphasis ours]
58.
We note that in the above context, by its judgment delivered on 13th January 2017, the Anti-Corruption Court held that no evidence was adduced to establish that the Appellant had directed the 1st accused to solicit any money on her behalf. Neither was there any evidence indicating that the Appellant had solicited for the bribe directly from Wilson Yegon. In addition, the said Wilson Yegon, was ultimately convicted in the criminal case, contrary to the expectation of an acquittal upon giving the bribe. The EACC investigating officers also confirmed they did not interrogate Yegon to verify who actually received the money. Secondly, at the time of the alleged recovery of Kshs.10,000/= from the Appellant’s handbag, the door to the Appellant’s chambers was slightly open, the handbag’s contents were strewn on the floor and the Appellant was not in the chambers. Thirdly, the inventory was compiled in the Appellant’s absence and the handbag was taken to the police station from her office in her absence. Fourthly, the evidence tendered was contradictory as to whether the Appellant’s fingers were swabbed to confirm whether she had handled the recovered money or not. The Anti-Corruption Court ultimately held that there was no thread in the evidence for it to follow and there was no evidence that the Appellant solicited for money through the 1st accused, to give a favourable outcome. There was also no evidence that she received the money, given that Wilson Yegon was asked by the 1st accused to wait in Court 4, as he delivered the bribe. The ELRC reiterated these findings and, on its part, held that there was no reason to terminate the Appellant’s employment.
59.
Looking at the record, we note that the Anti-Corruption Court went to great lengths to describe the loopholes in the case against the Appellant, which loopholes we have outlined above. We also note that when put on his defence, the Appellant’s co-accused claimed that the Appellant sent him to solicit money on her behalf from Yego, and further that he was informed at the police station that he would be released if he cooperated and said that he gave the Appellant the money. In addition, we have considered the report of the JSC Human Resource & Administration Committee on the disciplinary proceedings against the Appellant dated 4th June, 2018, the minutes of the disciplinary case heard on 5th March, 2018, the judgments of the superior courts below and the Respondents’ response.
60.
To our minds, the circumstantial evidence relied on by the Respondents was:
a.
The Appellant left her handbag and phone in her chambers without alerting the Magistrate-in-Charge which inferred that she left her chambers in a hurry to evade the EACCofficers.
b.
The Appellant walked to a nearby hospital instead of using her car.
c.
The Appellant could not explain who opened her chambers, (despite the spare key being in the custody of the Executive Officer who would also share it with the cleaners and court clerks).
d.
The Appellant could not explain how the money got into her handbag.
e.
She was inconsistent as to whether she left her handbag on the table or in the drawer of her chambers.
61.
To our minds, the facts as outlined above cannot reasonably lead to the inference of guilt on the part of the Appellant. The Respondents seem to allege that the offence likely occurred without establishing a tangible level of real possibility. We are therefore inclined to agree with the ELRC that, cognizant of the decision of the Anti-Corruption Court and noting the chronology of events, there was nothing indicative that the Appellant’s involvement was the only possible inference to be made in the circumstances. There was a notable and vital break in the chain of events that invariably deconstructs any notion that the Appellant’s guilt was the only reasonable inference to have been made either by the trial court, the ELRC or even the JSC.
62.
Further, we note that in her application for review, the Appellant attached an affidavit sworn by Robert Cheruiyot on 21st September 2018 wherein he confirmed the Appellant’s narrative. Considering that the Respondents indicated in the charge that the Appellant and Robert Cheruiyot were in agreement in soliciting a benefit from Wilson Yegon, we cannot fathom how this affidavit was said not to adduce any new or persuasive evidence speaking to the Appellant’s innocence, or at the very least, call for further inquiry by the Respondents. The Respondents ought to have considered the evidence contained in the Appellant’s application for review and reached a different finding.
63.
Closely related to the question of circumstantial evidence, is whether the Court of Appeal properly appreciated or applied the doctrine of double jeopardy. The Court of Appeal held that double jeopardy did not apply because the disciplinary process was not based on the Appellant’s criminal culpability. The Respondents on their part submitted that it only applies to criminal proceedings, not civil or administrative proceedings. The Appellant, on her part contended that the two charges as framed by the Respondents have a common root with the criminal case and they raise substantially similar issues. She further submitted that Sections 18(1) to (3) of the Third Schedule of the JSA are normative derivatives of Article 50(20)(o) of the Constitution, which Article applies to civil, criminal and quasi-criminal disputes.
64.
The Black’s Law Dictionary, 9th Edition defines ‘double jeopardy’ as “… being prosecuted or sentenced twice, for substantially the same offence.”
65.
In the United States of America, double jeopardy is captured in the Fifth Amendment to the US Constitution which reads as follows:
“
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
It is also provided for in the American Convention on Human Rights in the following terms:
“
Article 8. Right to a Fair Trial
4.
An accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause.”
66.
In the European context, prohibition against double jeopardy is enshrined in Article 4 of the Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No.117). It has been ratified by all Member States, save for Germany, the United Kingdom and the Netherlands. The Protocol reads:
“
Right not to be tried or punished twice
1.
No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2.
The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3.
No derogation from this Article shall be made under Article 15 of the Convention.”
67.
In Canada, the Constitution Act, 1982 under the Canadian Charter of Rights and Freedoms provides for double jeopardy in the following terms:
11.
Any person charged with an offence has the right
(h)
if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;”
68.
In R v. Van Rassel, [1990] 1 S.C.R. 225, the Supreme Court of Canada held that double jeopardy is a principle of general application with more specific rules. They are:
a.
Autrefois acquit-this is a special plea that rests with the plea of autrefois convict and pardon under Section 535 of the Criminal Code. It is established once the following conditions are proved:
i.
The matter is the same, in whole or in part; and
ii.
The new count must be the same as at the first trial, or be implicitly included in that of the first trial, either in law or on account of the evidence presented if it had been legally possible then to make the necessary amendments. The charges need not be absolutely identical. (See Section 537 of the Criminal Code)
b.
The rule in the decision of the Supreme Court of Canada, Kienapple v.R [1975] 1 S.C.R 729 is based on the broader principle of res judicata. It applies when two separate charges are based on the same delict or cause so that one cannot be convicted of the second charge if they had been convicted on the first charge. Issue estoppel bars a court from deciding a matter that has already been the subject of a judicial decision.
69.
In India, double jeopardy is recognized in Article 20(2) of the Constitution, Section 300 of the Criminal Procedure Code, Section 40 of the Indian Evidence Act, Section 71 of the Indian Penal Code and Section 26 of the General Clauses Act, 1897. The elements of double jeopardy are also set out in the case of Vijayalakshmi vs Vasudevan (1994) 4 SCC 656 as follows:
i.
The accused has been tried by a competent court for the same offence or one for which he might have been charged or convicted at a trial, on the same facts;
ii.
The accused has been convicted or acquitted at the trial; and
iii.
Such conviction or acquittal is in force.
70.
The Supreme Court of India reiterated the foregoing in the case of TP Gopalakrishnan vs The State of Kerala, Criminal Appeal Nos. 187-188 of 2017. In paragraph 28 of the decision, the Court considered what “same offence” means and held:
28.
… The term ‘same offence’ in simple language means, where the offences are not distinct and the ingredients of the offences are identical. Where there are two distinct offences made up of different ingredients, the embargo under Article 20 of the Constitution of India, has no application, though the offences may have some overlapping features. The crucial requirement of Article 20 is that the offences are the same and identical in all respects, vide State (N.C.T. of Delhi) vs. Navjot Sandhu (2005) 11 SCC 600.”
71.
In addition, in the case of Sangeetaben Mahendrabhai Patel vs State of Gujarat (2012 (7) SCC 621, the Supreme Court of India held:
24.
In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence.” [Emphasis ours]
72.
Section 35(3)(m) of the Constitution of South Africa is similar to our Article 50(2)(o) of the Constitution, both speaking to the rights of an accused person. They both provide that “every accused person has the right to a fair trial, which includes the right—not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted.”
73.
In the case of the S vs Basson (CCT 30/03A) [2005] ZACC 10: 2005 (12) BCLR 1192 (CC); 2007 (3) SA 582 (CC); 2007 (1) SACR 566 (CC), the Constitutional Court of South Africa cited the case of R v Manasewitz, 1933 A 165 at 173-4 where the Court set out the 3 elements that establish the plea of autrefois acquit:
… I accept, for the purpose of these reasons, the following requisites to establish a plea of autrefois acquit, namely that the accused has been previously tried (1) on the same charge, (2) by a Court of competent jurisdiction and (3) acquitted on the merits. Obviously, an accused so tried must have been in jeopardy. The proposition is sometimes stated slightly differently thus: That the accused has been previously indicted on the same charge, was in jeopardy,and was acquitted on the merits.” [Emphasis ours]
74.
This position was also applied in the case of S v Basson (CCT 30/03) [2004] ZACC 13; 2005 (1) SA 171 (CC); 2004 (6) BCLR 620 (CC); 2004 (1) SACR 285 (CC).
75.
Article 14(7) of the ICCPR (1966) provides that “[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”.
76.
William Blackstone in his Commentaries on the Laws of England (Vol. 1V 18th Ed. 1829, Chapter XXVI) states:
First the plea of autrefois acquit or a former acquittal, is grounded on the universal maxim of the Common Law of England that no man is to be brought into jeopardy of his life, more than once, for the same offence. And hence it is allowed as a consequence, that when a man is once fairly not guilty upon an indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime.”
77.
In the Kenyan context, Article 50 (2) (o) of the Constitution and Section 138 of the Criminal Procedure Code, Cap 75 of the Laws of Kenya provide for the plea of autrefois acquit and autrefois convict which are founded on the doctrine of double jeopardy, that is, one must not be tried for an offence for which they have been previously acquitted or convicted. This doctrine of double jeopardy is based on the Latin maxim nemo debet bis vexari pro una et eadem causa which means that no man shall be put in jeopardy twice for the same offence. It is also founded on public policy that there ought to be an end to the same litigation. The High Court (Odero, J.) in Nicholas Kipsigei Ngetich & 6 Others vs Republic, Criminal Case No. 123 of 2010 [2016] KEHC 1507 (KLR) expounded it to be a protection afforded to an accused person from the prejudice of going through a second trial after the State is made privy to his/her entire defence and to also protect citizens from undue oppression by the State. The importance of double jeopardy cannot be overemphasized. In this connection, the High Court (Gikonyo, J.) in Johnson Kobia M’Impwi vs Director of Public Prosecutions, Criminal Case 333 of 2018; [2020] KEHC 4685 (KLR) described it not only as a procedural defence but a constitutional protection against subsequent trial based on a prior acquittal or conviction. This Court has also had occasion to weigh in on this discourse in the case of Steyn vs Ruscone, SC Application No. 4 of 2012; [2013] KESC 11 (KLR) where we posited that a party cannot present their dispute before one forum or court and subsequently present the exact dispute over the same subject matter before another forum, even where both fora have jurisdiction. Further, in Wetangula & Another vs Kombo & 5 Others, SC Petition No. 12 of 2014 ;2015] KESC 12 (KLR), we held that Section 87(1) of the Elections Act Cap 7 of the Laws of Kenya, allows for electoral malpractice with a criminal underpinning to be prosecuted under the relevant criminal law process. This in itself does not violate double jeopardy since election proceedings are not in the same category of “trial for an offence” and are sui generis nature.
78.
Applying the foregoing to the issue at hand, we note that the ELRC, on its part, interpreted the fresh charges of 22nd August 2017 which it found to be dissimilar to those of 4th September 2015, to amount to double jeopardy. We disagree with the ELRC’s exposition of double jeopardy. According to our reading and understanding of the Constitution, double jeopardy applies when there has been a previous conviction or an acquittal on a charge, not when 2 proceedings over the same cause are subsisting.
79.
Ordinarily, criminal proceedings may be prosecuted alongside civil proceedings. See Section 93A of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya. However, Section 18(2) of the Third Schedule of the JSA provides as follows:
If criminal proceedings are instituted against an officer, proceedings for their dismissal upon any grounds involved in the criminal charge shall not be taken until the conclusion of the criminal proceedings and the determination of any appeal therefrom:
Provided that nothing in this paragraph shall be construed as prohibiting or restricting the power of the Chief Justice to interdict or suspend such officer”.
Against this background, the case of Mathew Kipchumba Koskei vs Baringo Teachers SACCO, Cause 11 of 2012; [2013] eKLR lays outs the general principles applicable where there is a criminal element in a disciplinary case. However, given the specific provisions in the JSA, the said principles do not apply. To that end, we decline the Appellant’s invitation to develop the said principles, which in any event emanate from a court of first instance.
80.
Furthermore, our understanding of Section 18(2) of the Third Schedule of the JSA is that the above provision prohibits the commencement of disciplinary proceedings during the pendency of criminal proceedings. The Black’s Law Dictionary, 9th Edition at page 1324 defines proceeding as ‘the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.’ The author further writes that ‘proceeding’ concerning the court may include-
1.
The institution of the action.
2.
The appearance of the defendant.
3.
All ancillary or provisional steps, such as arrest, attachment of property, garnishment, injunction, writ of ne exeat.
4.
The pleadings.
5.
The taking of testimony before trial.
6.
All motions made in the action.
7.
The trial.
8.
The judgment.
9.
The execution.
10.
Proceedings supplementary to execution, in code practice.
11.
The taking of the appeal or writ of error.
12.
The remittitur, or sending back of the record to the lower court from the appellate or reviewing court.
13.
The enforcement of the judgment, or a new trial, as may be directed by the court of last resort. Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 3-4 (2d ed. 1899).
In the charge of 4th September 2015, the Chief Justice directed the Appellant to give a written response to the charge within 21 days. Preparing a response is part of the disciplinary proceedings in view of the definition above. To that extent, therefore, we find and hold that disciplinary proceedings were indeed commenced against the Appellant contrary to the law. To this end, we agree with the Appellant and the ELRC, that the Chief Justice violated Rule 18(2) of the Third Schedule of the JSA.
81.
We have also set out above the offences in the criminal case and the charges drawn by the Respondents. Are they similar? To answer this question, the ingredients of the offences must be set out. In this connection, we find guidance in the TP Gopalakrishnan Case (Supra) and Sangeetaben Mahendrabhai Patel Case (Supra) where the Supreme Court of India held that “… The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence.”
82.
In the instant case, the charges in the criminal court were corruptly soliciting for a benefit, corruptly receiving a benefit and conspiracy to commit an economic crime. The Respondents, on the other hand drew charges to the effect that the Appellant knowingly conveyed or permitted Robert Cheruiyot to convey the impression that he was in a special position to influence her as a Judicial Officer; the Appellant failed to exhibit respect to the rule of law, comply with the law, avoid impropriety and appearance of impropriety and acted in a manner that did not promote public confidence in the integrity and impartiality of the Judicial Service.
83.
The war against Corruption in Kenya has been incorporated in key government policies over the last three decades and several statutes have been enacted in consequence. Corruption under Section 2 of the Anti-Corruption and Economic Crimes, is defined as follows:
“
corruption’ means-
a.
an offence under any of the provisions of sections 39, 44, 46 and 47; (Sections 44, 46 and 47 refer to bid rigging, abuse of office and dealing with suspect property respectively)
b.
bribery;
c.
fraud;
d.
embezzlement or misappropriation of public funds;
e.
abuse of office;
f.
breach of trust; or
g.
an offence involving dishonesty—
i.
in connection with any tax, rate or impost levied under any Act; or
ii.
under any written law relating to the elections of persons to public office;’”
Section 2 of ACECA defines economic crime to include laundering the proceeds of corruption, acting dishonestly or fraudulently with regard to the maintenance or protection of public revenue or public property, and failure to pay taxes, fees, levies or charges due to a public body. In addition, for purposes of going after unexplained assets, Sections 47(3) and 55(1) of ACECA define corrupt conduct as conduct that constitutes corruption or economic crime, whether it took place before or after the commencement of the Act for as long as it constituted an offence at all material times.
84.
To our minds, the charges dated 22nd August 2017 read against the facts of the case constitute the same issue as the subject of the criminal charges. Considering the definitions set out above, we do not doubt that the offences/ issues in the cases are similar and we, therefore, agree with the Appellant that the Respondents contravened the principle of double jeopardy.
85.
On whether the Appellant’s counsel was denied a chance to be heard, we note that neither of the Superior Courts below handled this issue despite it being raised in Petition No. E005 of 2020. Mr. Wambeyi Makomere represented the Appellant before the Respondents’ disciplinary committee. The Respondents recognized his presence. The record reads:
“
Com. Ms. Mercy Deche: …then the Commissioners will ask you any questions that they deem fit, which you will answer and after that, your lawyer need not say anything because you will have an opportunity to file submissions...
Hon. Judith Nyagol: Yes.
Com. Ms. Mercy Deche: …but we welcome you to this session. However, if you need any clarification, you are not gagged from clarifying anything. So, Hon. Nyagol, tell us, we have not sworn you in as yet, sorry….
Hon Judith Nyagol: It is okay…
The record further reads:
“
Com. Ms. Mercy Deche: Thank you. You wanted to say something, Counsel?
Mr. Wambeyi Makomere: Yes, Madam Chair, I just wanted to see if I can consult with her (Appellant) concerning that question because there are a few things that are – Probably to assist her finish.
Com. Ms. Mercy Deche: You can consult her at the end. Is that okay?
Mr. Wambeyi Makomere: Very well.”
86.
Subsequently in the proceedings, although this excerpt may be construed to mean that Counsel was given a very limited role in the process, he was given the opportunity to address the disciplinary committee on the timelines for filing submissions. Could the foregoing reasonably be read to mean that the Appellant’s counsel was denied audience? We think not. The Appellant’s counsel was given audience. Further, he did not register any opposition to the directions issued by the committee.
87.
This then brings us to the next limb of the aspect of fair trial, and that is whether it was prejudicial to fail to avail the witnesses. It would appear that the Respondents relied predominantly on the judgment of the criminal court which was also the basis of the ‘complaint’. They did not call any witnesses and did not produce any evidence. While it was upon the Respondents to elect which witnesses to call if any, it was upon them to prove their case and not leave it to conjecture or even worse, to shift the burden of proof to the Appellant. To that extent, we find that failure to avail witnesses was fatal to the Respondents’ case, trial and ultimate decision.
iv. Whether the Appellant was prosecuted for the charges of 4th September 2015 or those of 22nd August 2017.
88.
The Respondents’ report on the disciplinary proceedings reads that the trial was on account of the charges dated 22nd August 2017. In addition, the proceedings of the disciplinary hearing held on 5th March 2018, the application for review dated 24th September 2018 and ‘further’ application for review dated 7th November 2018 indicate that the charges read out to the Appellant were those dated 22nd August 2017. The termination letter dated 24th August 2018, however read that the Appellant was dismissed based on the charges dated 4th September 2015.
89.
The Court of Appeal held that the Appellant was all along aware that she was facing a disciplinary hearing on account of the charges of 22nd August 2017 and that the Respondents erroneously indicated that they dismissed the Appellant from employment on account of the charges of 4th September 2015 as opposed to the charges of 22nd August 2017. Further, the court observed that, going by the chronology of events, the Appellant suffered no prejudice on account of the Respondents indicating that she was dismissed from employment on account of the charges of 4th September 2015.
90.
We disagree. The right to a fair hearing and a fair trial, as provided under the Constitution and the relevant laws, including the FAAA is clear. A person has a right to know the exact case, including charges, they are facing. This enables them to mount a defence, decide which witnesses to call, if any, and prepare adequately for the hearing. In the instant case, our understanding is that the disciplinary hearing was based on the charges dated in August 2017 but the Appellant was subsequently dismissed based charges dated in September 2015. While the Respondents indicate that the dismissal letter had an error in terms of the date of the charge, it is notable that to date, they have not issued an amended version. Secondly, the letter communicating the charges dated August 2017, spoke to ‘fresh charges’ but did not specifically speak to the fate of the charges of September 2015, which could still be pending, there being no evidence to the contrary. The Appellant was therefore, at best, left in limbo, not knowing which exact set of charges she was facing. The same was prejudicial to the Appellant’s rights to a fair hearing or a fair trial.
iv. Whether the remedy of reinstatement is available to the Appellant.
91.
The JSA does not speak to the remedies available to a judicial officer who, after termination from employment, successfully challenges the said termination before a Court of law. In line with the Latin maxim generalia specialibus non derogant and to allow for harmonious interpretation of the statutes, we find and hold that the provisions of the EA and ELRCA apply. Section 49(3) of the EA, as read together with Section 12(3)(vii) of the ELRCA, provides that the ELRC has the power to make a range of orders, including reinstatement within 3 years of dismissal, subject to such conditions as the Court thinks fit in line with any written law. A reading of Section 12(3)(vii) of the ELRCA provides that reinstatement is pegged on the court’s discretion. In the case of Ferdinand Ndungu Baba Yao Waititu vs Republic, SC Petition No. 2 of 2020; [2021] KESC 11 (KLR) we relied on the case of Mbogo vs Shah; [1968] EA 93 to the effect that a court’s discretion should only be interfered with where the court misdirected itself in some matter or where it is manifest from the whole case that the court was wrong in the exercise of its discretion.
92.
The Court of Appeal declined to issue an order of reinstatement because the statutory timelines had lapsed, a valid consideration set out in the ELRCA and the EA. The Appellant did not set out how, if at all, the Court of Appeal failed to exercise this discretion judiciously. We, therefore, shall not interfere with this finding.
93.
In the circumstances, the appeal is partially successful. In line with our decision in Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai & 4 Others, SC Petition Application No. 4 of 2012; [2014] eKLR, we are inclined to award costs to the Appellant.
The Amended Appeal dated 15th May 2024 succeeds in the following terms–
a.
The Judgment of the Court of Appeal dated 23rd February, 2024 is hereby set aside to the extent that it set aside the judgment of the Employment and Labour Relations Court.
b.
The judgment of the Employment and Labour Relations Court dated 7th October, 2021 is hereby reinstated in the following terms:
i.
A declaration is hereby issued that the dismissal of the Appellant was unfair and unjustified as provided under Section 45(2) of the Employment Act.
ii.
The 1st Respondent shall pay the appellant Kenya Shillings Five Million (Kshs.5,000,000/=) for the unfair and unjustified dismissal which cut off the appellant’s career prematurely.
iii.
The 1st Respondent shall pay the appellant all withheld salary from the time of interdiction on 4th September, 2015 to the time of her dismissal on 21/8/2018.
iv.
The 1st Respondent shall pay the costs of the suit plus interest at court rates with effect from the date of the judgment.
2.
The 1st Respondent shall bear the costs in the Court of Appeal and in this Court.
3.
For the avoidance of doubt, all other prayers in the appeal are dismissed.
4.
We hereby direct that the sum of Kshs.6,000/= deposited as security for costs upon lodging of this appeal, be refunded to the Appellant.
Orders accordingly.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/69/eng@2024-11-22
Petition (Application) E010 of 2024,Dock Workers Union & another v Portside Freight Terminals Limited & 10 others (Petition (Application) E010 of 2024 & Petition E011 of 2024 (Consolidated)) [2024] KESC 66 (KLR) (8 November 2024) (Ruling),,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",8 November 2024,2024.0,Nairobi,Civil,Dock Workers Union & another v Portside Freight Terminals Limited & 10 others,[2024] KESC 66 (KLR),,"The Dock Workers Union, the 1st appellant in SC Petition No. E010 of 2024, filed a petition challenging the development of a second grain handling facility at the Port of Mombasa. Later, the Union sought to withdraw the petition, arguing that the project would create jobs, increase revenue for the Kenya Ports Authority, and lower grain prices. The Union claimed its Executive Committee had not authorized its joinder in earlier proceedings or the filing of the petition. The 2nd appellant, opposed the withdrawal, alleging improper motives and perjury by the Union’s Secretary General. Despite these allegations, the respondents in the petition did not file any responses or objections to the application.
Issues
Whether the Supreme Court had the power to deny a party that sought to withdraw proceedings before it. Held
Through the provisions of rule 27(1) of the Supreme Court Rules, 2020, a party could with leave of the Supreme Court, withdraw the proceedings at any time before the delivery of judgment. A party’s right to withdraw its case from court could not be denied, and the court could not prohibit a party from doing so.
Since the Union had expressed its desire to withdraw its petition, and despite the 2nd appellant’s arguments and concerns, the Supreme Court allowed the Union’s Motion for leave to withdraw SC Petition No. E010 of 2024. The withdrawal effectively left SC Petition No. E011 of 2024 [Okiya Omtatah Okoiti vs. Portside Freight Terminals Limited & 10 Others] as the only petition of appeal in the matter.
An award of costs was an exercise of discretion. Costs follow the event. The 2nd appellant, in his replying affidavit, had not sought for costs of this application. The appeal was being withdrawn before the respondents had filed any responses or substantive submissions to the consolidated appeal. There would be no prejudice to any of the parties.
Petition withdrawn, no order as to costs.","Upon reading the applicant’s (Union) notice of motion dated August 14, 2024, expressed to be brought under rule 27 of the Supreme Court Rules, 2020 and Practice Direction No 48 of the Supreme Court (General) Practice Directions, 2020 for orders, that:
a.
The Petition No E010 of 2024 filed by the Dock Workers Union against Portside Freight Terminal Limited & 10 others as respondents, be withdrawn;
b.
In the alternative, leave be granted to the Dock Workers Union, the 1st appellant, to cease participating as a petitioner and its further participation in the matter be dispensed with; and
c.
The costs of this application and Petition No E010 of 2024 sought to be in the discretion of the court (sic); and
2.
Upon considering the supporting affidavit sworn by the Union’s Secretary General, Simon Sang, on August 14, 2024 together with its written submissions of even date to the effect that: in addition to the construction and development of a grain handling facility and island berth at G- Section Area Kenya Port Authority, Portside Companies (1st, 2nd and 3rd respondents) had agreed to develop an offshore berth, which will be a common user berth, at the port of Mombasa which will result in additional cargo traffic; it has now become apparent to the Union that more job opportunities will be created at the Port of Mombasa for its members and the wider public, besides generating additional revenue for Kenya Ports Authority (KPA) and the likely decrease in grain and food prices by reason of competition that will result from the introduction of a second player in the sector; and
3.
Considering further, that before the High Court, the Union was an interested party whereas the dispute essentially involved private interests, which do not concern the Union in any real sense; that neither the Executive Committee nor the membership of the Union were aware that the applicant had been joined in the High Court or Court of Appeal and such joinder had not been authorized; equally, neither the Executive Committee nor the membership of the Union has permitted the filing of the instant petition before this court. In any event, KPA which is a material stakeholder, seems to support the development of a second bulk grain handling facility as it has not participated in these proceedings. Consequently, the Executive Committee of the Union has therefore resolved to withdraw this petition as there is no plausible reason for the Union to proceed with this matter in view of the aforementioned benefits to both its members and the wider public; and
4.
Noting that the 2nd appellant in a replying affidavit sworn by Okiya Omtatah Okoiti on September 5, 2024 has opposed this motion on the grounds that: the Union has not demonstrated that it would be detrimental to the interests of the dock workers and the public interest if the project in issue was to be established either at Lamu or Dongo Kundu in compliance with KPA’s masterplan; that the Union’s Secretary General who is the deponent of the affidavits by the Union, was aware of the proceedings and actively participated in them; that although the 2nd appellant has no objection to the petition being withdrawn as prayed, he reasonably suspects that the same is being withdrawn for improper motives and to advance corrupt practices. What is more, he alleges perjury on the part of, Mr. Simon Sang, the Union’s Secretary General by his affidavits before this court; and
5.
Cognizant that none of the respondents have filed any pleadings in response to or in opposition to this motion; and
6.
Having considered the application, affidavits and rival arguments, We now opine as follows:
i.
By the provisions of rule 27(1) of the Supreme Court Rules, 2020, “A party may with leave of the court, withdraw the proceedings at any time before the delivery of judgment.”
ii.
We are alive to the fact that a party’s right to withdraw its case from court cannot be denied, and the court cannot prohibit a party from doing so. This court observed as much in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), where it held:
“
A party’s right to withdraw a matter before the court cannot be taken way. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.”
iii.
Bearing this in mind, since the Union has expressed its desire to withdraw its petition, and despite the 2nd appellant’s arguments and concerns, we hereby allow the Union’s motion for leave to withdraw SC Petition No E010 of 2024. This withdrawal effectively now leaves SC Petition No E011 of 2024 Okiya Omtatah Okoiti v Portside Freight Terminals Limited & 10 others as the only petition of appeal in the matter.
iv.
On costs, we underscore the fact that an award of costs is an exercise of discretion and follows the principle set out by this court in Rai & 3 others v Rai, Estate of & 4 others, [2014] KESC 31 (KLR) that costs follow the event. In applying this principle, we note that the 2nd appellant, in his replying affidavit, has not sought for costs of this application. Moreover, we note from the record, that the appeal is being withdrawn before the respondents had filed any responses or substantive submissions to the consolidated appeal. There will be no prejudice to any of the parties. In view of the foregoing and in the exercise of our discretion, we make no orders as to costs.
7.
Consequently, and for the reasons aforestated, we make the following Orders:
i.
The applicant’s notice of motion dated August 14, 2024 be and is hereby allowed;
ii.
SC Petition No E010 of 2024 dated March 21, 2024 and filed on April 4, 2024, be and is hereby marked as withdrawn, leaving SC Petition No E011 of 2024 Okiya Omtatah Okoiti v Portside Freight Terminals Limited & 10 others as the only petition of appeal; and
iii.
There shall be no orders as to costs.
It is so ordered",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/66/eng@2024-11-08
Petition E005 of 2024,Kamau v Karanja & another (Petition E005 of 2024) [2024] KESC 64 (KLR) (8 November 2024) (Judgment),,Supreme Court,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",8 November 2024,2024.0,Nairobi,Civil,Kamau v Karanja & another,[2024] KESC 64 (KLR),,"At the heart of the instant case was a long- drawn ownership dispute of the suit property, which began in 1986. The appellant had filed a constitutional petition together with an application under certificate of urgency at the Environment and Land Court (ELC) in 2018. In the two, the appellant applied for interim orders to restrain the respondents from further subdividing, selling, trespassing and or in any manner interfering with the suit property. In response to the application, the 1st respondent raised a preliminary objection on the ground that the court had no jurisdiction to hear the petition as the same did not disclose the rights and the manner in which the respondents violated them; and that both the application and the petition offended section 7 of the Limitation of Actions Act. The ELC agreed and sustained the preliminary objection on two fronts: that the petition did not set out with a reasonable degree of precision the constitutional rights that had been violated or threatened, the specific constitutional provisions alleged to have been violated, and the reliefs sought; and that the petition was time-barred by virtue of section 7 of the Limitation of Actions Act. The petition at the ELC was thus struck out. Aggrieved, the appellant filed an appeal at the Court of Appeal. The Court of Appeal affirmed the ELC’s decision. Further aggrieved, the appellant filed the instant appeal.
Issues
Whether failure of respondents to participate in proceedings relieved appellants from proving their claims on a balance of probabilities. What was the effect of failure to specify under which limb of article 163(4) of the Constitution under which a litigant was invoking the Supreme Court’s appellate jurisdiction? What were the requirements for one to appeal to the Supreme Court as of right in matters involving the interpretation or application of the Constitution? Held
Both the respondents had not participated in the proceedings despite being accordingly notified of the appeal. Sections 107 and 109 of the Evidence Act cast the burden of proof on a party who desired to get a judgment from the court to prove the existence of any legal right or liability and the burden of proof as to any particular fact lay on the person who wished the court to believe in its existence, unless it was provided by law that the proof of that fact lay on any particular person. Even though the respondents had not participated in the proceedings, the respondent's absence did not relieve the appellant from proving his claim on a balance of probabilities.
The appellant had not specified under what limb of article 163(4) of the Constitution the appeal had been brought. Given the court’s specialized jurisdiction, a party desiring to invoke its jurisdiction under article 163(4) must specifically identify the limb upon which the petition was premised. In view of the fact that the two avenues of the court's appellate jurisdiction under article 163(4)(a) and (b) of the Constitution were distinct, counsel or a litigant invoking that jurisdiction to appeal a decision of the Court of Appeal must strictly demonstrate either that the appeal was as of right under article 163(4)(a) or that the appeal had been certified as involving a matter of general public importance under 163(4)(b).
It was a basic rule of procedure that jurisdiction must, in the first instance exist when the proceedings were initiated and because the question of jurisdiction was so fundamental, it could be raised at any stage of the proceedings before the final decision was rendered. It could be raised by any party or even by the court suo motu. In fact, it was customary for the court to independently confirm that an appeal had been properly filed and that it had jurisdiction before hearing it.
The onus of proving that the appeal involved a question of constitutional interpretation or application was upon the party relying on article 163(4)(a) of the Constitution. The court did not automatically acquire jurisdiction merely because a party claimed in their pleadings or submissions that the appeal concerned the interpretation or application of the Constitution.
A party must identify with precision the relevant articles of the Constitution that were the subject of interpretation or application and show that the subject of the appeal before the court was the same one upon which either the High Court or courts of equal status and indeed the Court of Appeal based their respective decisions. Where the decision being challenged on appeal had nothing or little to do with the interpretation or application of the Constitution, such a decision could not be the subject of a further appeal to the court under the provisions of article 163(4)(a).
Though the grievance was presented as a constitutional question, there was no constitutional issue involved that required the ELC’s interpretation or application. The question was simply, who between the appellant and the 1st respondent was entitled to the suit property. From the pleadings, the issues raised in the petition were purely factual, and the reliefs sought had no bearing on the application or interpretation of the Constitution at all.
Based on the fact that the petition did not specify what constitutional rights had been violated, the trial court allowed the 1st respondent’s notice of preliminary objection, agreeing that it lacked jurisdiction to entertain the petition. The court struck out the petition for failure to set out the constitutional provisions threatened or violated by the respondents, the specific constitutional provisions violated, and the reliefs sought. The claim was statute-barred in terms of section 7 of the Limitation of Actions Act.
The two courts below were unanimous in their conclusions that the appellant did not particularize or present evidence of how the respondents breached his rights. The petition was dismissed at a preliminary stage without its merits being considered by both courts. Mere citation of constitutional provisions in the pleadings did not in itself bring an appeal within the scope of article 163(4)(a) of the Constitution.
The appellant had failed to directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution and the matter turned purely on factual issues being camouflaged as constitutional violations, and for which the court lacked jurisdiction to determine.
Appeal dismissed.","Jurisdiction under Article 163(4)(a) of the constitution Constitution
22.
At the onset, we reiterate that the appellant has not specified under what limb of Article 163(4) of the Constitution this appeal has been brought. It is only in paragraph 20 of the written submissions that the appellant has cited a case in reference to Article 163(4)(a) of the Constitution. Is that enough for us to assume that the appeal has been brought pursuant to Article 163(4)(a)? This Court has cautioned, time without number, that, given its specialized jurisdiction, a party desiring to invoke its jurisdiction under Article 163(4) must specifically identify the limb upon which the petition is premised. See Steyn v Ruscone [2013] KESC 11 (KLR) and Ibren v Independent Electoral and Boundaries Commission & 2 others [2018] KESC 75 (KLR).
23.
In view of the fact that the two avenues of this Court's appellate jurisdiction under Article 163(4)(a) and (b) of the Constitution are distinct, counsel or a litigant invoking that jurisdiction to appeal a decision of the Court of Appeal must strictly demonstrate either that the appeal is as of right under (a) of Article 163(4) or that the appeal has been certified as involving a matter of general public importance under (b) of that Article.
24.
It is a basic rule of procedure that jurisdiction must, in the first instance exist when the proceedings are initiated, and because the question of jurisdiction is so fundamental, it can be raised at any stage of the proceedings before the final decision is rendered. It can be raised by any party or even by the Court suo motu.
In fact, it is now customary for this Court to independently confirm that an appeal has been properly filed and that it has jurisdiction before hearing it.
25.
To ascertain whether or not the jurisdiction has been properly invoked, the Court will consider the nature of the pleadings and proceedings in the trial court, the remedy or remedies sought, and the decisions of the superior courts below. The onus of proving that the appeal involves a question of constitutional interpretation or application is upon the party relying on Article 163(4)(a). The Court does not automatically acquire jurisdiction merely because a party claims in their pleadings or submissions that the appeal concerns the interpretation or application of the Constitution.
26.
A party must also identify with precision the relevant Articles of the Constitution that were the subject of interpretation or application and show that the subject of the appeal before this Court was the same one upon which both the High Court or courts of equal status and indeed the Court of Appeal based their respective decisions. Where the decision being challenged on appeal has nothing or little to do with the interpretation or application of the Constitution, such a decision cannot be the subject of a further appeal to this Court under the provisions of Article 163(4)(a).
27.
These are collectively the ratio decidendi to be extracted from our decisions in Nduttu & 6000 others v Kenya Breweries Ltd & another [2012] KESC 9 (KLR), Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR), Peninah Nadako Kiliswa v Independent Electoral & Boundaries Commission, Ford Kenya & Edith Were Shitandi [2015] KESC 17 (KLR), Opore v Independent Electoral and Boundaries Commission & 2 others [2018] KESC 5 (KLR) and Daniel Kimani Njihia v Francis Mwangi Kimani & Thika District Land Registrar [2015] KESC 19 (KLR). In the latter, we expressly declared that;
“
… the extraordinary standing of this Court would demand that, in principle, litigants be clear as to the terms of the jurisdiction they are invoking. The litigant should invoke the correct constitutional or statutory provision; and an omission in this regard is not a mere procedural technicality, to be cured under Article 159 of the Constitution.” (Our emphasis).
28.
Although we have given the background to this dispute in one of the preceding paragraphs, it bears repeating that, at the heart of this case is a long- drawn ownership dispute of the suit property, which began in 1986. But of immediate relevance to answer is the first question we have framed is a constitutional petition together with an application under certificate of urgency filed at the Environment and Land Court at Nyahururu in 2018. In the two, the appellant applied for interim orders to restrain the respondents from further subdividing, selling, trespassing and or in any manner interfering with the suit property. In response to this application, the 1st respondent raised a preliminary objection on the ground that the court had no jurisdiction to hear the petition as the same did not disclose the rights and the manner in which the respondents violated them; and that both the application and the petition offended Section 7 of the Limitation of Actions Act.
29.
The Environment and Land Court (Oundo, J) agreed and sustained the preliminary objection on two fronts: that the petition did not set out with a reasonable degree of precision the constitutional rights that had been violated or threatened, the specific constitutional provisions alleged to have been violated, and the reliefs sought; and that the petition was time-barred by virtue of Section 7 of the Limitation of Actions Act. For these two reasons, the petition was struck out. The Court of Appeal affirmed this decision on the second appeal.
30.
The question before us now is whether this appeal meets the criteria for invocation of Article 163(4)(a) as enunciated in Nduttu (supra), Joho (supra), Peninah Nadako Kiliswa (supra), in a long line of such similar decisions. In other words, does this appeal strictly involve constitutional interpretation or application; what were the questions that engaged the two courts below, and how did the two courts resolve the said questions?
31.
It is apparent to us that, though the grievance was presented as a constitutional question, there was no constitutional issue involved that required the ELC’s interpretation or application. The question was simply, who between the appellant and the 1st respondent was entitled to the suit property? It is evident from the pleadings that the issues raised in the petition were purely factual, and the reliefs sought had no bearing on the application or interpretation of the Constitution at all. The appellant simply asked the court to declare;
“
i.
“The proceedings and final orders in Nyahururu Principal Magistrate Court Succession Cause No. 83 of 2006 in respect of the Estate of Hezekiah Karanja Njagi be declared null and void in so far as they pertain to the suit property;
ii.
The issuance of the title deed to the 1st respondent similarly be declared illegal, null and void;
iii.
The subdivision in respect of all that parcel of land, namely, Nyandarua/Olkalau Central/1088 be nullified;
iv.
The title deed issued to the 1st respondent on 31st May 2007 in respect of Nyandarua/Olkalau Central/1088, and all entries or transactions resulting from the said title deed be canceled; and
v.
The 2nd respondent be directed to issue to the appellant a new title deed for all that piece of land, namely, Nyandarua/Olkalau Central/1088.”
32.
Based on the fact that the petition did not specify what constitutional rights had been violated, the trial court allowed the 1st respondent’s Notice of Preliminary Objection, agreeing that it lacked jurisdiction to entertain the petition.
33.
The Court struck out the petition for failure to set out the constitutional provisions threatened or violated by the respondents, the specific constitutional provisions violated, and the reliefs sought. Secondly, the court found that the claim was statute-barred in terms of Section 7 of the Limitation of Actions Act.
34.
There having been no constitutional question before the trial court, none arose, indeed none was expected to arise in the Court of Appeal, which affirmed the decision of the trial court. The Court of Appeal confined its consideration of the first appeal to the trial court’s determination on whether or not the petition raised constitutional issues and whether it was barred by the statute of limitation. The two courts below were unanimous in their conclusions on the twin issues that the appellant did not particularize or present evidence of how the respondents breached his rights. The petition was dismissed at a preliminary stage without its merits being considered by both courts. We reiterate that the mere citation of constitutional provisions in the pleadings does not in itself bring an appeal within the scope of Article 163(4)(a) of the Constitution.
35.
We, therefore, come to the inescapable conclusion that the appellant has failed to directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution and that, in our view, the matter turned purely on factual issues now being camouflaged as constitutional violations, and for which this Court lacks jurisdiction to determine.
36.
Having arrived at this conclusion, no purpose will be served to go into the second issue framed in this appeal as it does not present exceptional circumstances or distinctive opportunity for the Court to provide interpretive guidance on the question, as was the situation in Rai & 3 others v Rai & 5 others [2013] KESC 21 (KLR); Speaker of the Senate & another v Attorney- General & another; Law Society of Kenya & 2 others (Amicus Curiae) [2013] KESC 7 (KLR); and Sonko v County Assembly of Nairobi City & 11 others [2022] KESC 76 (KLR). This is indeed another of those cases where we must down tools as we do at this stage.
37.
We accordingly dismiss this appeal for lack of merit.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/64/eng@2024-11-08
Petition (Application) 42 of 2019,Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others (Petition (Application) 42 of 2019) [2024] KESC 67 (KLR) (8 November 2024) (Ruling),,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",8 November 2024,2024.0,Nairobi,Civil,Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others,[2024] KESC 67 (KLR),,"By a Judgment dated March 24, 2021, this court made the following orders:
The Petition of Appeal dated November 6, 2019, and filed on November 7, 2019, is hereby allowed.
The Judgment of the Court of Appeal sitting at Nairobi dated September 27, 2019, is hereby quashed and set aside.
For the avoidance of doubt, the Judgment of the High Court delivered on February 26, 2016, is hereby upheld.
The costs of this Appeal shall abide by the outcome of the appeal.
Additionally, the appellant/applicant wrote to the court on April 1, 2021, and May 13, 2021, invoking section 21(4) of the Supreme Court Act, No. 9B of the Laws of Kenya, requesting clarification on the issue of costs in the proceedings before the Court of Appeal. This was followed by the filing of the Notice of Motion on November 23, 2022, and July 9, 2024, seeking clarification regarding the appellant's costs in the Court of Appeal proceedings, Nairobi Civil Appeal No. 141 of 2015.","Upon reviewing the Notice of Motion dated November 23, 2022, and filed on July 9, 2024, the appellant/applicant sought clarification on the costs in the Court of Appeal proceedings, arguing that although the costs of the appeal were awarded to the appellant, the judgment did not pronounce itself on costs before the Court of Appeal. The appellant/applicant contended that, according to the rule of thumb, costs follow the event, as established in the case of Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others, SC Petition No. 4 of 2012. It was urged that, since the appellant was the successful party, the costs should be awarded in their favor and borne by the 1st respondent, the Commission on Administrative Justice.
Despite service of the application and submissions, the respondents did not respond. In considering the application, the court invoked section 21(4) of the Supreme Court Act, which allows for correction of any oversight, clerical error, or error apparent on the face of a judgment or ruling. The court also referred to Rule 28(5) of the Supreme Court Rules, 2020, which permits the review of decisions in exceptional and meritorious circumstances.
The court confirmed that failure to pronounce itself on the issue of costs in the Court of Appeal was an error that could be corrected under the Slip Rule. Referencing the case of Fredrick Outa vs Jared Odongo Okello & 3 Others, SC Petition No. 6 of 2014, the court reaffirmed that such errors must be obvious and not alter the substance of the judgment.
Additionally, the court acknowledged that, while costs generally follow the event, it retains discretion to determine the appropriate party to bear the costs, as stipulated in section 21(2) of the Supreme Court Act. In this instance, the appellant was the successful party, and there was no reason not to award costs for the proceedings in the Court of Appeal.
Finally, the court concluded that the appellant/applicant’s application had merit and issued the following orders:
The Notice of Motion dated November 23, 2022, and filed on July 9, 2024, is hereby allowed.
The Judgment dated March 24, 2021, is hereby reviewed, and the appellant/applicant is awarded the costs of the proceedings in the Court of Appeal in Civil Appeal No. 141 of 2015.
As the respondents did not oppose the motion, no order was made as to costs for this motion.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/67/eng@2024-11-08
Petition E003 of 2024,Mwei v Attorney General & 3 others (Petition E003 of 2024) [2024] KESC 65 (KLR) (8 November 2024) (Judgment),,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, N Ndungu, W Ouko",8 November,2024.0,Nairobi,Civil,Mwei v Attorney General & 3 others,[2024] KESC 65 (KLR),,"The Appeal dated 19th January, 2024, and lodged on 4th March 2024, seeks to set aside the Judgment of the Court of Appeal (Ochieng, Achode & Korir, JJ. A) delivered on 25th January 2024 in Samwel Kiplangat Mwei v Attorney General of Kenya & 3 Others, Civil Appeal No. 196 of 2019. The Court of Appeal upheld the High Court (Muya, J.) decision in Samwel Kiplangat Mwei v Attorney General of Kenya & 3 Others, HCCA No. 19 of 2017, which decision, in turn, had upheld the Principal Magistrate’s decision in Samwel Kiplangat Mwei v Attorney General of Kenya & 3 Others, PMCC No. 33 of 2009, which had dismissed the Appellant’s case.
The Appellant, Samwel Kiplangat Mwei, was arrested on or around 15th December 2006 by Officer Munyanja, the 3rd Respondent, on account of a complaint lodged by Johnstone Terer, the 2nd Respondent, alleging that the Appellant had destroyed part of the common boundary between Kericho Chesoen Plot Nos. 34 and 35. He was taken to Bomet Police Station on the same day and later confined by the 4th Respondent, CJ. Opiyo. The Appellant was eventually released without any charges being brought against him.
In response to this, the Appellant filed a suit on 25th February 2009 against the 2nd Respondent for unlawful arrest and confinement, seeking damages for assault, injury, and loss. This suit was initially filed before the Magistrates’ Court and progressed through various stages of litigation, including appeals and the reinstatement of his case after being dismissed for want of prosecution. Ultimately, the Magistrate's Court at Sotik dismissed the Appellant’s case on 21st September 2017, ruling that while the Appellant was arrested and confined, he was released on cash bail and the Respondents had acted legally.
The Appellant then appealed the decision to the High Court, which upheld the decision of the Magistrate’s Court on 25th January 2024. The Court of Appeal subsequently dismissed his appeal in Civil Appeal No. 196 of 2019, which led to the current appeal before the Supreme Court.","The Appellant filed this appeal with the Supreme Court on 19th January 2024, raising four principal grounds, including issues related to the law governing the appeal process, the role of evidence in proving facts, and claims of fraud in the judgment entered against him. The Appellant sought to have the judgment of the Court of Appeal set aside and to confirm the ruling entered on 17th April 2015 by the Principal Magistrate, Hon. P. Olengo.
In response, the Respondents raised a preliminary objection, arguing that the appeal did not meet the jurisdictional threshold under Articles 163(4)(a) and (b) of the Constitution, asserting that the matter did not involve the interpretation or application of the Constitution. The Appellant, in his submissions, contended that the Supreme Court had the jurisdiction to hear the appeal, citing relevant provisions under Article 163(4)(a) of the Constitution and Section 15A of the Supreme Court Act.
The key issue for determination was whether the Supreme Court had jurisdiction to hear the appeal. The Court examined previous rulings and established that a Court cannot entertain proceedings without jurisdiction, as jurisdiction is a foundational requirement. In this case, the Appellant failed to clearly specify the jurisdiction invoked and did not demonstrate that the appeal raised issues concerning the interpretation or application of the Constitution, which would have brought the matter within the Supreme Court’s jurisdiction.
The Court found that the Appellant had not raised constitutional issues in the earlier proceedings in the High Court or the Court of Appeal and that the matter did not transmute into one involving constitutional interpretation. As a result, the appeal was dismissed.
The Supreme Court upheld the preliminary objection raised by the Respondents, ruling that the appeal failed to meet the jurisdictional threshold. The Appellant was commended for his persistence in representing himself, and the Court decided that each party should bear their own costs. Additionally, the security deposit of Kshs. 6,000 was ordered to be refunded to the Appellant.
The final orders were as follows:
The Notice of Preliminary Objection dated 4th April 2024 is upheld.
The Appeal dated 19th January 2024 is dismissed.
Parties shall bear their own costs.
The sum of Kshs. 6,000 deposited as security for costs upon lodging of the appeal be refunded to the Appellant.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/65/eng@2024-11-08
Petition E031 of 2024,"Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) (Petition E031, E032 & E033 of 2024 (Consolidated)) [2024] KESC 63 (KLR) (29 October 2024) (Judgment)",,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",21November 2024,2024.0,Nairobi,Civil,Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) [2024],[2024] KESC 63 (KLR),,"Three appeals were filed before this Court at the instance of the appellants namely, SC Petition Nos. E031, E032 & E033 of 2024. In addition, two cross appeals were filed jointly by the 15th -19th & 22nd respondents and the 38th -49th respondents, respectively. The appeals primarily revolve around whether the Finance Act, 2023 was enacted in line with the prescribed constitutional and statutory parameters; and the reliefs that can issue upon a court finding a statute unconstitutional. Consequently, on 15th August 2024, this Court on its own motion consolidated the appeals and designated SC Petition No. E031 of 2023 as the lead file. The consolidated appeal challenges the judgment of the Court of Appeal (M’inoti, Murgor and Mativo, JJ.A.) dated 31st July, 2024 in Civil Appeal No. E003 of 2023 as consolidated with Civil Appeal Nos. E016, E021, E049, E064 & E080 of 2023, which declared, inter alia, the Finance Act, 2023 unconstitutional.",,Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/63/eng@2024-10-29
Petition (Application) E021 of 2024,Kenya National Highways Authority v Five Star Agencies Limited & another (Petition (Application) E021 of 2024) [2024] KESC 62 (KLR) (25 October 2024) (Ruling),,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",25 October 2024,2024.0,Nairobi,Civil,Kenya National Highways Authority v Five Star Agencies Limited & another [2024],[2024] KESC 62 (KLR),,"This case concerned an application seeking, inter alia, the striking out of a Petition of Appeal filed under Article 163(4)(a) of the Constitution, which allows appeals to the Supreme Court as of right in matters involving interpretation or application of the Constitution.
The applicant argued that the appeal raised no constitutional issues, either at the trial court or in the Court of Appeal. It was alleged that the respondent was attempting to convert procedural issues relating to garnishee proceedings into constitutional matters, in a bid to avoid the certification requirement under Article 163(4)(b).
The case involved the enhancement of compensation for compulsorily acquired land from Kshs. 87 million to Kshs. 413 million. The appellant was not party to the trial, only sought joinder post-judgment, and thus the applicant contended they had no locus standi to raise the matter as an appeal of right under Article 163(4)(a).","The Supreme Court examined the jurisdictional question by reviewing:
Whether constitutional issues were litigated in the lower courts;
Whether the appellant had locus standi;
Whether the appeal met the threshold under Article 163(4)(a).
The court reaffirmed that for an appeal as of right under Article 163(4)(a):
The issues must have revolved around constitutional interpretation or application before the lower courts;
The Court of Appeal must have made its decision based on those constitutional issues;
The appellant must have actively litigated the issues in the lower courts.
The court referenced earlier rulings, including:
Lawrence Nduttu & 6000 others v Kenya Breweries Ltd – emphasizing that an appeal must stem from constitutional matters determined by the Court of Appeal;
Law Society of Kenya v Communications Authority of Kenya – clarifying that only an aggrieved party with locus standi can bring an appeal under this article.
Upon examination of the record, it was found that:
The issues before the trial court and Court of Appeal related mainly to execution of a judgment through garnishee proceedings, and whether the appellant was a necessary party;
The appellant lacked locus standi, and no constitutional interpretation occurred in the lower courts;
Therefore, the matter did not qualify as an appeal as of right under Article 163(4)(a).",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/62/eng@2024-10-25
Application E050 of 2023,FAAF v RFM & 2 others (Application E050 of 2023) [2024] KESC 61 (KLR) (18 October 2024) (Ruling),Ruling,Supreme Court of Kenya,Supreme court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",18 October 2024,2024.0,Nairobi,civil,"Fatuma Athman Abud Faraj vs Rose Faith Mwawasi ,Judith Malele Mwawasi,Marlin Coram Pownali",[2024] KESC 61 (KLR),,"Representation:
Ms. Asli Osman for the applicant (Ahmednasir Abdullahi Advocates, LLP)
Mr. Joseph Munyithya for the 1st and 2nd respondents
(Munyithya, Mutungi, Umara & Muzna Co. Advocates)
No appearance for the 3rd respondent
1.
Whereas on 23rd January 2024 six (6) Justices of this Court, with Ouko SCJ being indisposed, in SC Petition No. 17 (E021) and 24 (Eo27) of 2022 (consolidated) - Zehrabanu Janmohamed (S.C Suing as the Executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi) & Another vs. Nathaniel K. Lagat & 4 Others recused themselves from hearing any matters filed by the firm of M/S Ahmednasir Abdullahi Advocates LLP, or wherein Mr. Ahmednasir Abdullahi, SC appears either by himself, through an employee of his law firm, or any other person holding his brief, or acting pursuant to his instructions due to his persistent improper conduct towards the Court; and
2.
Noting however, that prior to making the said order of recusal, this Court had on 23rd December 2023 issued interim ex-parte orders of stay of execution of the Court of Appeal judgment dated 10th November, 2023 in Mombasa Civil Appeal No. E043 of 2023, and stay of proceedings in Mombasa HC Succession Cause No. 200 of 2015 pending the hearing and determination of the instant Motion, which orders have remained in force; and
3.
Bearing in mind that those orders were issued ex-parte, and the nature of the matter, we are constrained by necessity to proceed and make a full determination of this part-heard Motion. However, for the record, save for the present ruling and for the reasons above, our recusal in the Zehrabanu matter, shall apply with equal force to the main appeal being SC Petition No. E035 of 2023 as long as the firm of M/S Ahmednasir Abdullahi Advocates LLP remains on record, or Mr. Ahmednasir Abdullahi, SC appears either by himself, through an employee of his law firm, or any other person holding his brief, or acting pursuant to his instructions; and
4.
Cognisant that Mombasa HC Succession Cause No. 200 of 2015, was filed at the instance of Rose Faith Mwawasi (the 1st respondent) and Judith Malele Mwawasi (the 2nd respondent) following the demise of Salim Juma Hakeem Kitendo who died intestate on 22nd May, 2015; and that Fatuma Athman Abud Faraj (the applicant), the 1st respondent, and Marlin Coram Pownali (the 3rd respondent), not only claimed to be the deceased’s widows, but also that their respective children are beneficiaries of the deceased’s estate. However, the applicant disputed this claim contending, that the 1st respondent’s marriage with the deceased was marred with fraud while, on the other hand, the 3rd respondent lacked capacity to solemnise a subsequent marriage with the deceased on account of a previous subsisting monogamous marriage with another man. Furthermore, that one of the 1st respondent’s children namely, SSJHK, was not sired by the deceased while the other three were born out of wedlock hence they were deemed as illegitimate children under Islamic law; and that the 3rd respondent’s child who was born about six months after the celebration of her alleged marriage with the deceased was not entitled to the estate; and","Bearing in mind that the High Court (Onyiego, J.), by a judgment dated 25th March, 2022 found that, the distribution of the deceased’s estate was subject to Islamic law; only the applicant and the 1st respondent were the deceased’s widows; the 1st respondent’s first child, SSJHK (minor), was not a beneficiary to the estate; and where a child is born out of wedlock by a deceased male Muslim, he/she is entitled to be treated as a dependent or beneficiary of the deceased’s estate by virtue of Section 29 of the Law of Succession Act (Cap 160 Laws of Kenya). Towards that end, the court issued the following orders:
“
i.
That it is hereby declared and ordered that the objector (the applicant herein) and the 1st petitioner (the 1st respondent herein) are widows of the deceased and therefore beneficiaries entitled to a share of the estate in accordance with Islamic sharia law. (sic)
...
iii.
The children of the objector known as ASJM (Son), ASJM (Son), BSJM (Son) and MSJM (Daughter) being children born within wedlock are heirs hence beneficiaries to the estate entitled to a share in accordance with the Islamic sharia law. (sic)
...
v.
The fate of the three children sired by the 1st petitioner and the interested party (the 3rd respondent herein) whose paternity is in dispute shall be subjected to a DNA test after extracting samples from their bodies and compared with those extracted from the bodies of at least two of the objector’s children whose paternity is not in dispute. (sic)
v.
For avoidance of doubt, the children to be subjected to DNA test are HSJK (child to the interested party), LSK, TSK and HK (children of the 1st petitioner).
...
viii.
Parties to agree on which of the two children of the objector will donate DNA samples for examination before a mutually agreed laboratory. (sic)
ix.
... a fresh grant do issue to the 1st petitioner and objector jointly.”; and
6.
Appreciating that the applicant and the 3rd respondent challenged the High Court’s decision in the Court of Appeal, Mombasa Civil Appeal No. E043 of 2022, and the said court (Gatembu, Nyamweya & Odunga, JJ.A.) by a judgment dated 10th November, 2023 (the impugned judgment) upheld the High Court’s decision save for the issue of DNA testing. The appellate court found that the issue of DNA sampling had neither been raised by any of the parties nor should it have been the basis upon which the children’s entitlement to the deceased’s estate was determined. Accordingly, the court set aside the order relating to DNA testing and substituted it with an order that the applicant’s, 1st and 3rd respondents’ children are entitled to benefit from the estate of the deceased either as dependants or beneficiaries. The court also remitted the matter back to the High Court for determination of the respective entitlements of the beneficiaries; and
7.
Upon perusing the Notice of Motion dated 14th December, 2023 and filed on 18th December, 2023 by the applicant pursuant to Sections 21 & 23A(1)(a) of the Supreme Court Act (Cap 9B Laws of Kenya) and Rules 31 & 32 of the Supreme Court Rules, 2020 seeking inter alia orders that -
“
…
d.
That this Honourable Court be pleased to issue a stay of execution of the judgment and order of the Court of Appeal at Mombasa Civil Appeal No. E043 of 2023 pending the hearing and determination of the applicant’s appeal against the said judgment.
e.
That this Honourable Court be pleased to issue an order for stay of proceedings at the High Court Mombasa Succession Cause No. 200 of 2015 pending the hearing and determination of the applicant’s appeal.
f.
That this Honourable Court be pleased to issue any other order that it deems just and expedient.
g.
That the costs of the application be in the cause.”; and
8.
Upon considering the affidavit sworn by the applicant in support of the Motion and her submissions of even date to the effect that, she has filed an appeal before this Court, SC Petition No. E035 of 2023, challenging the impugned judgment; the said appeal is arguable as the Court of Appeal failed to appreciate the provisions of Article 24(4) of the Constitution and Section 2 (3) of the Law of Succession Act; in that, the distribution of the deceased’s estate is subject to Islamic law, and as such, illegitimate children cannot inherit from the said estate; the Court of Appeal totally misapprehended the fact that Article 27 of the Constitution which enshrines the right to equality and freedom from discrimination is subject to the limitation/qualification under Article 24(4) of the Constitution in so far as the distribution of the estate of a deceased Muslim is concerned; and that the Court of Appeal’s decision was tantamount to finding that Article 27 reigned supreme over the explicit provisions of Article 24(4) of the Constitution ; and
9.
Taking into account the applicant’s contention that the Court of Appeal had remitted the matter back to the High Court for distribution of the deceased’s estate in terms of the impugned judgment, and in turn, the respondents have since filed an application dated 11th November, 2023 before the High Court for such distribution; therefore, she is apprehensive that the deceased’s estate will be distributed before the appeal herein is determined rendering the appeal nugatory; that the issues raised in the appeal also have a significant bearing on public interest; and that the Motion had met the parameters for granting the orders sought as delineated in Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others, SC Applic. No. 5 of 2014; [2014] eKLR (Gatirau Munya Case); and
10.
Upon examinig the replying affidavit sworn by the 1st respondent on 30th April 2024, on her own behalf and the 2nd respondent, the gist of which is that following the High Court judgment, the said court (Mutai, J.) vide a ruling dated 3rd August, 2023 directed that school fees for the applicant’s children as well as a monthly upkeep for the applicant in the sum of Kshs. 340,000 be drawn from the deceased’s estate pending further orders of the court; that the said orders undermine the rights of the other beneficiaries to the said estate since only the applicant and her children are currently benefiting from the estate; that from August, 2023 to April, 2024 the applicant had collected a sum of Kshs. 2,720,000, excluding the amount paid as school fees for her children; the applicant seeks a blanket stay of the High Court proceedings, and there ought to be a balance between the rights of all the beneficiaries; and therefore, this Court should also stay the execution of the aforementioned orders of the High Court of 3rd August,2023; and
11.
Noting that on 23rd December, 2023 this Court issued ex-parte interim orders of stay of execution of the impugned judgment and stay of the High Court proceedings, High Court in Succession Cause No. 200 of 2015 pending the determination of this Motion; and
12.
Further noting that this Court’s jurisdiction regarding issuance of interim orders in the nature of stay of execution and proceedings is aptly delineated under Section 23A of the Supreme Court Act; and that the rationale for such orders is to preserve the subject matter of the appeal pending the resolution of the contested issues as appreciated in Board of Governors, Moi High School, Kabarak & Another vs. Bell & 2 Others (Petition 6 & 7 of 2013 & Civil Application 12 & 13 of 2012 (Consolidated)) [2013] KESC 12 (KLR); and
13.
Upon deliberations on the Motion and the rival arguments, we opine as follows:
i.
The parameters within which this Court may issue orders of stay of execution and proceedings are well settled. An applicant, in that regard, is required to establish that his/her appeal is arguable, and that unless the orders sought are granted, the appeal would be rendered nugatory in the event it succeeds. However, an additional criterion arises where the matter in question has a public interest connotation and in such a case, an applicant is required to also establish that it is in the public interest that the order of stay be granted. See Gatirau Munya Case.
ii.
Having considered the grounds of appeal as advanced in this Motion as well as set out in the applicant’s appeal, we find that the question of the interpretation of Article 27 vis-à-vis Article 24(4) of the Constitution as it pertains to the distribution of the estate of a deceased Muslim calls for our consideration. Therefore, without delving into other grounds and/or the merits of the applicant’s appeal, we find that SC Petition No. E035 of 2023 is arguable. See Kampala International University vs. Housing Finance Company Limited (Petition (Application) 34 (E035) of 2022) [2023] KESC 5 (KLR).
iii.
On the nugatory aspect, we are persuaded that the deceased’s estate may be distributed in terms of the impugned judgment, the subject of the appeal before this Court, SC Petition No. E035 of 2023, which is pending determination. Consequently, we find that the applicant’s appeal may be rendered nugatory unless the orders sought are granted. In any event, nothing has been placed before us to demonstrate that any action(s) taken pursuant to the impugned judgment would be capable of being reversed should the appeal be successful.
iv.
Besides, we are alive to the fact that the determination of the issue(s) in dispute in the applicant’s appeal will have a significant bearing on the distribution of the estates of Muslims who die intestate. In the circumstances, we are convinced that it is in the public interest to issue the orders sought.
v.
Be that as it may, we cannot overlook the 1st and 2nd respondents’ contention that by dint of the High Court’s ruling dated 3rd August 2023, the applicant and her children have solely been benefiting from the deceased’s estate to the exclusion of other beneficiaries. Having weighed the said concern coupled with the fact that the applicant has not denied drawing such amounts from the estate despite the ex-parte interim orders issued by this Court, we find that it is necessary to strike a balance between the rights of all beneficiaries in order to preserve the estate as well to ensure equality of arms between the parties.
vi.
Consequently, we find that the Motion has met the threshold of granting the stay orders sought. In addition, we find that it is also in the interest of justice to issue an order staying further execution of the High Court’s ruling dated 3rd August, 2023 with respect to monies being drawn out of the deceased’s estate pending the hearing and determination of the appeal or further orders of this Court, as the case may be.
vii.
Taking into account the nature of this matter and this Court’s decision in Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai & 4 Others, SC Petition No. 4 of 2012; [2014] eKLR, we deem it just to order that each party bears their own costs.
14.
Consequently and for the reasons afore-stated, we make the following Orders:
i.
The Notice of Motion dated 14th December, 2023 and filed on 18th December, 2023 is hereby allowed in the following terms:
a.
An order of stay of execution of the judgment of the Court of Appeal in Mombasa Civil Appeal No. E043 of 2023 dated 10th November, 2023 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023.
b.
An order of stay of the proceedings in High Court Mombasa Succession Cause No. 200 of 2015 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023.
c.
An order of stay of further execution of the High Court ruling dated 3rd August, 2023 in High Court Mombasa Succession Cause No. 200 of 2015 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023 or further orders of this Court, as the case may be.
ii.
Each party shall bear their costs of the Motion.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/61/eng@2024-10-18
Petition (Application) E027 of 2024,Heineken East Africa Import Company Limited & another v Heineken International BV & 2 others (Petition (Application) E027 & E028 of 2024 (Consolidated)) [2024] KESC 59 (KLR) (Civ) (18 October 2024) (Ruling),Ruling,Supreme Court of Kenya,Supreme court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu",23rd October 2024,2024.0,Nairobi,Civil,Heineken East Africa Import Company Limited vs Heineken International BV and Maxam Limited,[2024] KESC 59 (KLR),,"Ruling
1.
Two separate appeals, being Petition No E027 of 2024 and Petition E028 of 2024 have been lodged before this court arising out of the Court of Appeal Judgment in Civil Appeal No 403 of 2020 as consolidated with Civil Appeal No E404 of 2020. In Petition No E027 of 2024, the petitioner, Heineken East Africa Import Company Limited has filed a notice of motion application seeking stay of execution of the Court of Appeal Judgment. The 2nd respondent, Maxam Limited on the other hand has filed a notice of motion application seeking to strike out the petition of appeal. In Petition No E028 of 2024, the petitioner, Heineken International BV has similarly filed a notice of motion application seeking stay of execution of the Judgment of the Court of Appeal while the 2nd respondent has equally filed a notice of motion application seeking to strike out the petition of appeal. In order to save on precious judicial time and in view of the related nature of the applications, this ruling disposes the four (4) applications set out above.
i. Petition No E027 of 2024
a. Notice of Motion Application dated 1st June, 2024
2.
The notice of motion application dated June 1, 2024 and filed on June 13, 2024 pursuant to sections 3, 3A, 21(1)&(2) and 23(A) of the Supreme Court Act, and rule 32 of the Supreme Court Rules, seeks, inter alia, an order of stay against the execution and or enforcement of the Judgment delivered on May 24, 2024 by the Court of Appeal at Nairobi in Civil Appeal No. 403 of 2020 as consolidated with Civil Appeal No. E404 of 2020. The application is supported by the affidavit of Kevin Santry, a director of Heineken East Africa Import Company Limited, sworn on June 1, 2024. The petitioner additionally filed submissions dated June 1, 2024, a supplementary affidavit sworn by Victor Mailu, the applicant’s counsel on July 4, 2024, and a Rejoinder dated July 4, 2024.
3.
The petitioner avers that: in a Judgment delivered on July 29, 2019 the High Court awarded the 2nd respondent special damages of Kshs 1,799,978,868.00 and a declaration that the 2nd respondent’s constitutional rights under article 19 and 27 were violated; the Court of Appeal suo moto upheld the High Court’s decision predicated on the imperatives of article 10 of the Constitution when applying or interpreting contract law; it did not consider that the Distribution Agreement expressly excluded compensation for any such losses; and that parties did not have an opportunity to be heard in relation to the novel application of article 10, thereby occasioning violation of article 25(c) of the Constitution.
4.
The petitioner contends that its appeal is arguable and not frivolous, and that unless the order of stay is granted, the appeal, if it were to succeed would be rendered nugatory. It urges that it is in the public interest that the order of stay be granted. To support its averments, it cites this court’s decisions in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC App No 5 of 2014 [2014]eKLR and Kenya Airports Authority vs. Otieno Ragot & Company Advocates SC App No E011 of 2023 [2024] KESC 44 (KLR).
5.
The petitioner further submits that the Court of Appeal perceived a normative basis for award of the special damages as the equity set out in article 10 of the Constitution whereas no such claim was advanced by the 2nd respondent. It urges that its petition raises eight pertinent questions for determination, inter alia: whether the Court of Appeal erred in law by holding that it is an imperative of article 10 when applying or interpreting contract law; whether it is an imperative of article 10(2) of the Constitution that investments made by beer distributors in Kenya constituted irrebuttable goodwill constituting as property; whether the Court of Appeal erred by holding that there was clear presumption that unilateral termination is not available in the distributorship agreement; whether the distributorship agreement could only be terminated by “mutual separation” and which was to be guided by, conform and be consistent with, the imperatives of article 10(2) of the Constitution, and adds that the decision of the Court of Appeal took a trajectory of constitutional interpretation or application which became the basis of the financial award.
6.
It is the petitioner’s case that a bank guarantee for the substantial sum of Kshs 1,799,978,868.00 is at risk of being called in any time by the 2nd respondent. It adds that once it is paid out it will be out of this court’s reach, and further that restitution may be impossible as the 2nd respondent has no known assets, and there is no certainty that the assets will be available at the time of restitution.
7.
The 1st respondent (Heineken International BV), as indicated by its counsel during the mention before the Hon. Deputy Registrar, is not opposed to the petitioner’s application for stay, and therefore did not file a response or submissions to the notice of motion dated June 1, 2024.
8.
In response and in opposition to the application, the 2nd respondent filed the replying affidavit of Ngugi Kiuna, its Managing Director, sworn on July 1, 2024 and submissions dated July 1, 2024. The 2nd respondent contends that: the petitioner has failed to discharge the burden for the grant of an order for stay of execution to the required standard; the Judgment of the Court of Appeal is incapable of execution in any manner whatsoever to warrant an order for stay of execution as it upheld and affirmed the High Court Judgment. This court’s decision in Edwin Harold Dayan Dande & 3 others v Director Public Prosecutions & 2 others Petition 4(E005) of 2024 [2022] KESC 23 (KLR) is cited in this regard. It further avers that the Supreme Court cannot stay execution of a decree pending before the High Court and the proceedings therein, adding that the bank guarantee was issued in compliance with the High Court order made on November 14, 2019 as security for the decretal sum. Therefore, it urges that all matters pertaining to the guarantee can only be addressed before the High Court.
9.
The 2nd respondent avers that: the appeal is not arguable; the issue for determination at the Court of Appeal was a pure and singular contract principle on “repudiatory breach” of the Distribution Agreement; the Court of Appeal did not interpret or apply the Constitution in reaching its determination, but did the opposite, admonishing the High Court for elevating a matter in the realm of private law into a public law dispute by introducing constitutional issues, which were totally unnecessary in the determination of the dispute at the High Court; and further annulled all constitutional interpretations and applications including public law remedies and reliefs introduced by the High Court.
10.
The 2nd respondent further urges that: this court does not have jurisdiction to determine the matter as the Court of Appeal decision was on simple principles of the law of contract; it is not enough to generally plead that the case involves issues of constitutional interpretation and application; only cardinal issues of constitutional law or of jurisprudential moment, legal issues founded on cogent constitutional controversies deserve further input of the Supreme Court under article 163(4)(a); and that challenges of finding or conclusions on matters of fact by the trial court of competent jurisdiction after taking and evaluating evidence do not bring an appeal under the ambit of article 163(4)(a) of the Constitution.
11.
According to the 2nd respondent, the petition seems to be seeking an advisory opinion on matters that may have been discussed by the Court of Appeal, on the effects and consequences of article 10 of the Constitution on private contracts, which did not affect the decision of the Court of Appeal. The 2nd respondent contends that the matters on the face of the notice of appeal require certification under article 163(4)(b) of the Constitution on matters of general public importance before lodging the appeal. It adds that the dispute between the parties is a private contract and therefore the circumstances of public interest do not arise.
12.
On the issue of restitution, the 2nd respondent avers that it was the sole distributor of the petitioner’s Heineken products throughout the Republic of Kenya for over four (4) years with a turnover of billions of shillings per year. It therefore argues that failure of restitution, in the event the petition succeeds is therefore unfounded and is made in bad faith. It adds that in any event the petitioner’s breach of the Agreement had a bearing on the 2nd respondent’s financial status, and it is entitled to enjoy the fruits of the Judgment of July 29, 2019. It submits that it is only just, equitable and in the interest of justice that the petitioner’s application dated June 1, 2024 be dismissed with costs.
b. Notice of Motion Application dated 26th June, 2024
13.
The 2nd respondent filed the notice of motion application dated June 26, 2024 on June 27, 2024 pursuant to articles 163(3)(b), 163(4)(a) and (b), 163(8) of the Constitution, sections 21(1) and (2), 23(2)(i) and 29D of the Supreme Court Act 2011, rules 31(1),(2) and (3), 32 (1)(a) and (b) of the Supreme Court Rules, 2020. The petitioner seeks, inter alia, that the petition of appeal dated June 1, 2024 and filed on June 13, 2024 be struck out for want of jurisdiction, and consequently the notice of motion application dated June 1, 2024 and filed on June 13, 2024 be struck out. The application is supported by the affidavit sworn on June 26, 2024 and the further affidavit sworn on July 15, 2024 both by Ngugi Kiuna.
14.
The 2nd respondent contends that: this court does not have jurisdiction to hear and determine the matter pursuant to article 163(4)(a) as the grounds of appeal set out do not disclose a case involving the interpretation and application of the Constitution; the Court of Appeal determined that it was an error for the trial court to base its findings on the renewal of the Kenya Distribution Agreement on the application of public law principles or interpretation of the Constitution as the law of contract is sufficient in the adjudication of contractual cases.
15.
It further argues that: the judges of appeal made minimal and brief reference to article 10 of the Constitution, which reference does not have any significant effect on the final outcome of the Judgment; the petitioner has not demonstrated the impact or the effect the reference of article 10 had on the entire judgment; the reference on article 10 was peripheral and not central to the final determination; the Court of Appeal was clear on the import of article 10 of the Constitution; it expressly stated that its decision was based on the principles of the “law of contract” and not the interpretation of the Constitution; and further that the petitioner has not controverted the deficiency and incompetence of the notice of appeal, and therefore admits and concedes that the court does not have jurisdiction.
16.
Its case is that the petitioner and the 1st respondent succeeded in eliminating all references to the interpretation and application of the Constitution which the High Court had erroneously relied upon, and it is only the 2nd respondent that can competently urge the reinstatement of the constitutional interpretation and application which were in its favour, but dismissed by the Court of Appeal. The 2nd respondent further urges that the petitioner cannot invent a cause of action that has not been declared in the limited and self-contained Notices of Appeal to revive the dismissed constitutional matters in order to impermissibly base its appeal to the Supreme Court. It adds that the constitutional anchoring is not disclosed on the face of the notice of appeal, references to article 10 of the Constitution is an afterthought to circumvent the mandatory requirement of seeking certification, and that the decision of the Court of Appeal is based on the concept of “repudiatory breach” and not on any constitutional premise.
17.
The 2nd respondent avers that the Judges of the Court of Appeal evaluated all the evidence, submissions and documents tendered during the trial at the High Court in arriving at the conclusion that the letter and Notice of Termination dated January 27, 2016 issued by the petitioner and the 1st respondent on a “without prejudice” basis could not be construed as amounting to a lawful or valid Notice of Termination under Clause 17 of the Distribution Agreement. It adds that in its dispositive decision, the Court of Appeal relied on the House of Lords decision in Attorney General v Blake [2000] 4 All ER 385 on the award of restitutionary damages for breach of contract and not on any interpretation or application of the Constitution. To support its case, it relies on this Court’s decisions in Lawrence Nduttu & 6000 others vs. Kenya Breweries Ltd. & Another [2012]eKLR, Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] eKLR and Espie Njuguna & 46 others vs. Spire Properties K Limited & 12 others Pet.No.28 (E030) of 2022 [2023] KESC 37 (KLR) to urge that this court does not have jurisdiction to hear and determine the matter pursuant to article 163(4)(a) of the Constitution.
18.
In response and in opposition to the application, the petitioner filed the replying affidavit of Victor Mailu, its counsel on record sworn on July 11, 2024 and submissions dated 1July 1, 2024. The petitioner urges that: contested issues before the superior courts revolved around the interpretation or application of various constitutional provisions; in the Re-Amended Plaint filed at the High Court, the 2nd respondent alleged that the petitioner’s and the 1st respondent’s actions were in violation of Articles 19 and 27 of the Constitution; the High Court in its Judgment applied or interpreted the constitutional issues declaring that the petitioner’s and 1st respondent’s actions were in violation of article 19 and 27(2) of the Constitution; the Court of Appeal held that the declarations under article 19 and 27(2) were unnecessary under the principle of constitutional avoidance; the Court of Appeal invoked article 10 of the Constitution as a normative basis for application of ‘good faith, equity and fairness’ as applicable in interpreting contract law, and justified the award of special damages; the interpretation of contract law took a constitutional trajectory as the court stated that, the law of contract must now be read and applied inside the baseline threshold prescribed by article 10(2)(b) of the Constitution; the appeal before this court challenges the application of article 10 of the Constitution to private contracts; and the points of law raised and facts in the petition of appeal are based on the application or interpretation of constitutional issues.
19.
The petitioner further avers that: the application and interpretation of contract law within imperatives set by article 10 was invoked by the appellate court in its Judgment whereas no party made a plea nor arguments; the appellate court further held that the commercial relationship between the parties was sui generis and the award of special damages was justified on the basis on article 10 of the Constitution; its notice of appeal meets the requirements of rule 36(2)(a) of the Supreme Court Rules by specifying the dispositive parts of the appellate court’s judgment which is subject of the appeal; and that the 2nd respondent’s application is bad in law and an abuse of the court process. To support its averments, the petitioner relies on this court’s decisions in Peter Munya (supra); George Mike Wanjohi vs. Steven Kariuki & 2 others App. No. 6 of 2014 [2014]eKLR; Geo Chem Middle East vs. Kenya Bureau of Standards SC Pet. No. 47 of 2019 [2020] KESC 1 (KLR) and Anami Silverse Lisamula vs. Independent Electoral and Boundaries Commission & 2 others [2019] KESC 55 (KLR) and urge that the appeal took a trajectory of constitutional interpretation or application.
(ii) Petition No E028 of 2024
a. Notice of Motion Application dated 24th June, 2024
20.
The petitioner, Heineken International BV has filed the notice of motion application dated June 24, 2024, but within Application No. E021 of 2024. The application is filed pursuant to sections 3, 3A, 21(1) and (2), 23A and 24 of the Supreme Court Act, 2011 and rules 3(5) and 31(6) of the Supreme Court Rules, 2020 seeking, inter alia, a stay of execution and/or enforcement of the entire Judgment and resultant order of the Court of Appeal delivered on May 24, 2024 in Civil Appeal No 403 of 2020 as consolidated with Civil Appeal No E404 of 2020.
21.
The application is premised on the grounds on the face of the application and the supporting affidavit sworn on June 24, 2024 by Kevin Santry, a director of Heineken International BV and submissions dated July 24, 2024. The petitioner avers that its appeal is arguable with decent prospects of success, and has met the threshold set in Kenya Electricity Transmission Ltd v Instalanciones Inabensa S.A [2021] eKLR. It argues that the appeal raises weighty constitutional issues premised on the Court of Appeal’s erroneous introduction of new issues and article 10(2) of the Constitution suo moto as they were never pleaded or submitted upon by the parties at the High Court or Court of Appeal. It avers that the appellate court exceeded its jurisdiction under article 164(3) of the Constitution and was in violation of the petitioner’s right to property, fair trial, fair administrative action and access to justice provided under articles 40, 25(c), 47, 48 and 50(1) and (2) of the Constitution.
22.
According to the petitioner, the Court of Appeal erred gravely by suo moto applying the national values and principles of governance under article 10(2) to: establish and make a finding of a repudiatory breach of the Distributorship Agreement; to determine and award special damages to the 2nd respondent for loss of business amounting to Kshs 1,799,978,868.00 in violation of the petitioner’s constitutional rights; to find that the 2nd respondent created substantial goodwill for the petitioner; and holding that the special relationship between beer manufacturers and distributors creates an inherent power imbalance favouring manufacturers was sui generis and therefore any mutual separation must conform to the imperatives of article 10(2) of the Constitution.
23.
The petitioner contends that the appeal will be rendered nugatory if the execution of the appeal is not stayed, the Court of Appeal having ordered and upheld the High Court award of the sum of Kshs.1,799,978,868.00. It argues that the amount is colossal and cannot be recovered from the 2nd respondent, who had previously admitted that it is financially ailing and has no known assets. Further, the 2nd respondent has taken positive steps to commence execution including filing of an application dated June 6, 2024 seeking leave to execute the High Court’s decree issued on August 15, 2019 before taxation and the final determination of its bill of costs dated August 1, 2019. It avers that the High Court issued directions for the expedited hearing of the application and directed parties to return to court on July 4, 2024 to obtain a ruling date.
24.
The petitioner posits that the petition raises issues pertinent to the public interest as the consolidated Judgment of the Court of Appeal will affect contract law in Kenya and the manner in which distribution agreements particularly in the beer industry will be performed, enforced and interpreted going forward. It relies on this court’s decisions in Peter Munya (Supra), Board of Governors, Moi High School Kabarak & Ano. vs. Malcolm Bell [2013] eKLR where it was held that the court’s capability to arrive at a just decision on the merits of the appeal would be substantially diminished unless the court was able to make an interlocutory order to preserve the subject matter of the dispute.
25.
The 1st respondent (Heineken East Africa Import Company Limited), informed the court during the mention before the Hon Deputy Registrar that it supports the petitioner’s application for stay, and therefore did not file a response or submissions to the notice of motion dated June 24, 2024.
26.
In response to the application, the 2nd respondent filed the replying affidavit of Ngugi Kiuna sworn on July 5, 2024, and submissions dated July 8, 2024. The deponent reiterates the averments as was set out in the replying affidavit sworn on July 1, 2024 in response to the 1st respondent’s application for stay dated June 1, 2024 filed in Petition No E027 of 2024. The 2nd respondent’s submissions are also a replica of the submissions dated July 1, 2024 filed in Petition No E027 of 2028 and therefore we shall not rehash the averments therein. The 2nd respondent urges that: the court does not have jurisdiction to stay the proceeding pending before the High Court; the petition is not arguable as it is incompetent for want of jurisdiction; the court does not have jurisdiction pursuant to article 163(4)(a) of the Constitution and therefore, the application dated June 24, 2024 ought to be dismissed with costs to it.
b. Notice of Motion Application dated 8th July, 2024
27.
The 2nd respondent, Maxam Limited filed the notice of motion application dated July 8, 2024 pursuant to articles 163(3)(b), 163(4)(a) & (b)163(8) of the Constitution, sections 21(1) & (2), 23(2)(i) and 29D of the Supreme Court Act 2011, rule 31(1),(2)&(3), 32 (1)(a)&(b) of the Supreme Court Rules 2020, seeking, inter alia, that the petition of appeal dated June 24, 2024 and filed on June 27, 2024 be struck out for want of jurisdiction, and consequently the notice of motion application dated June 24, 2024 and filed on June 27, 2024 be struck out for want of jurisdiction.
28.
The application is supported by the affidavit of Ngugi Kiuna sworn on July 8, 2024. The 2nd respondent also filed submissions dated July 8, 2024. The application and submissions are similar to those dated June 26, 2024 filed in Petition No E027 of 2024. The 2nd respondent additionally filed a further affidavit sworn on July 17, 2024 by Ngugi Kiuna and further submissions of even date. The 2nd respondent maintains that this court does not have jurisdiction to hear and determine the petition of appeal citing this court’s decisions in Espie Njuguna (supra), Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others [2020] KESC 36 (KLR), Aviation & Allied Workers Union of Kenya v Kenya Airways Limited & 3 others [2017] KESC 11 (KLR) to urge that the Court of Appeal did not interpret or apply the Constitution and adds that the petition is an attempt to craft a backdoor jurisdictional creep to this court.
29.
In response and in opposition to the notice of motion application dated July 8, 2024, the petitioner filed the replying affidavit of Ikoha Muhindi, the petitioner’s Counsel on record sworn on July 16, 2024, and submissions dated July 16, 2024. The petitioner urges that: its application dated June 24, 2024 is properly before court as the proceedings in the matter relate to interpretation and application of the Constitution and therefore within the purview of article 163(4)(a) of the Constitution; the High Court applied both article 19 and 27(c) of the Constitution and issued declarations that the petitioner’s and 1st respondent’s actions were in violation of article 19 of the Constitution and that the conduct of offering lower market prices to other distributors of the Heineken Lager beer, approving higher market prices to the 2nd respondent on the same products and arbitrarily reducing the 2nd respondent’s approved margins as discriminatory and offended article 27(2) of the Constitution; and that the Court of Appeal engaged in and analysed the application of article 19 and 27(c) of the Constitution, and suo moto introduced and determined interpretation and application of article 10(2) of the Constitution on the Distribution Agreement.
30.
The petitioner further submits that the crux of the Court of Appeal’s decision was premised on heavy reliance and novel interpretation and application of article 10(2) of the Constitution to the Distribution Agreement on: the extension of national values and principles of governance to a private agreement between the 1st and 2nd respondents; interpretation of article 10(2) to conclude that the investments made by beer distributors constitute irrebuttable goodwill protected as property under constitutional principles; by applying article 10(2) the appellate court concluded that the appointment of third party distributors by the petitioner and the 1st respondent constituted a repudiatory breach of the Distribution Agreement leading to the award of special damages for business losses; holding that the relationship between beer manufactures and distributors was sui generis creating a power imbalance that must conform to the principles of article 10(2) of the Constitution; and that it applied article 10(2) to find that the 2nd respondent was in fact and in law a business joint venture of the petitioner and the 1st respondent entitling the 2nd respondent to share in the petitioner’s profits thus redefining the nature of the contractual relationship implying that the constitutional principles of fairness and equity necessitate profit sharing arrangements even in the absence of explicit contractual terms.
31.
The petitioner further avers that its notice of appeal meets the statutory requirements of rule 36(2)(a) of the Supreme Court Rule. It urges that the 2nd respondent’s application lacks any legal basis and is intended to delay the hearing and determination of the petition and stay application, thus it ought to be dismissed with costs.","32.
Jurisdiction is a preliminary issue and ought to be dealt with at the onset. Without jurisdiction a court is obligated to down its tools as it does not have the power to adjudicate upon the proceedings before it.
33.
This court has settled with finality its jurisdiction pursuant to article 163(4)(a) of the Constitution in several of its decisions. We have held that not all intended appeals lie from the Court of Appeal to the Supreme Court. It is only those appeals arising from cases involving the interpretation or application of the Constitution that can be entertained by this court. In Lawrence Nduttu (supra) we stated as follows
“
(27)
… it is not the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application. [28] The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a). If an appeal is challenged at a preliminary level on grounds that it does not meet the threshold in article 163(4)(a), the court must determine that challenge before deciding whether to entertain the substantive appeal or not. But the court need not wait for a preliminary objection before applying the test of admissibility in article 163(4)(a). It is the court’s duty as the ultimate custodian of the Constitution to satisfy itself that the intended appeal meets the constitutional threshold.”
34.
In Hassan Joho (supra) we stated that:
""
[37]
…the test that remains, to evaluate the jurisdictional standing of this court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the superior courts and has progressed through the normal appellate mechanism so as to reach this court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution.”
35.
As we determined in Rutongot Farm Ltd v Kenya Forest Service & 3 others SC Petition No 2 of 2016 [2018] eKLR, the questions that need to be answered are: (i) What was the question in issue at the High Court and the Court of Appeal? (ii) Did the superior courts below dispose of the matter after interpreting or applying the Constitution? (iii) Does the instant appeal raise a question of constitutional interpretation or application, which was the subject of judicial determination at the High Court and the Court of Appeal?
36.
The genesis of the dispute between the parties is the Distribution Agreement dated May 21, 2013 made between Heineken East Africa Import Company Limited and the 2nd respondent, for a term of three (3) years with effect from May 1, 2013. The Agreement was to automatically be extended for a period of one year and subsequent one-year periods unless terminated by either party giving the other written notice of termination within three (3) months. On January 27, 2016 Heineken International BV issued Maxam Limited, the 2nd respondent with a termination notice. Aggrieved by this action, the 2nd respondent instituted a suit vide a Re-Amended Plaint dated December 18, 2013 seeking several orders inter alia: a permanent injunction restraining the petitioner and the 1st respondent from, (a) terminating the Distribution Agreement and (b) appointing any other distributor for the distribution of the Heineken larger beer brand in Kenya; a declaration that the Notice of Termination from the 1st respondent to the 2nd respondent was unlawful, irregular, unprocedural and therefore null and void ab initio; a declaration that the Kenyan Distribution Agreement dated May 21, 2013 between the petitioner and the 1st respondent is in full force and effect as per the terms and conditions set out therein; a declaration that the petitioner and 1st respondent’s actions and breaches aforesaid have infringed on the 2nd respondent’s rights as protected by article 19 of the Constitution; and a declaration that the petitioner and 1st respondent’s conduct of offering lower market prices to other distributors of the Heineken Lager Beer, approving higher market prices to the 2nd respondent on the same products and arbitrarily reducing the 2nd respondent’s approved margins is discriminatory and offends the provisions of article 27(2) of the Constitution.
37.
We note that in its judgment, the High Court framed the issues for determination as: whether the Distribution Agreement is admissible for want of Stamp Duty; whether there was breach of legitimate expectation; whether the termination notice was valid and whether the 2nd respondent is entitled to any remedy. From the issues set out, we note that none concerned an interpretation or application of the Constitution. In its Judgment the court mainly addressed the termination of the Distribution Agreement. It held that: the termination notice was not issued in accordance with clause 18 of the Agreement as no reason was given for termination of the agreement; the notice thus did not result in termination of the subsisting Agreement of May 21, 2013; and the Agreement was constructively terminated by the deliberate appointment of numerous other distributors even after the reinstatement of interim orders by the trial court on August 28, 2017 without the issuance of any fresh legally binding Termination Notice.
38.
On the award of the claim of special damages, reliance was placed on a Valuation Report produced by an expert witness to prove the claim of Kshs 1,799,978,868.00. The trial court found that the special damages were pleaded and proved. It noted that the Valuation Report was also neither challenged nor controverted by any expert witness of equal measure on the part of the petitioners and as such was an admission on their part. The court thus amongst other orders, awarded the sum of Kshs.1, 799,978,868.00 as special damages for loss of business as tabulated by the 2nd respondent. Although one of the prayers sought by the 2nd respondent in the re-amended plaint and the declaration made in the Judgment that the petitioner and the 1st respondent’s actions were in violation of article 19 and 27(2) of the Constitution, this order had no impact on the main question on the validity of the termination notice issued to the 2nd respondent.
39.
The petitioners anchor their respective appeals on what the Court of Appeal stated concerning article 10 of the Constitution. From a perusal of the appellate court’s Judgment we note that the court made findings concerning article 10 of the Constitution at paragraphs 63, 130, 131 and 145 of the Judgment. This is to the effect that, “the law of contract must now be read and applied inside the baseline threshold prescribed by article 10(2)(b) of the Constitution” and that “the courts are therefore bound by the imperatives set out in article 10 when applying or interpreting contract law.” The Court of Appeal further stated that, “in the assessment of damages arising from a breach of exclusive beer distribution agreements, being a sui generis class, requires that the special commercial and legal characteristics of these agreements are taken into account. We also accept the proposition that, consistent with the sui generis nature of this commercial relationship, and as an imperative of article 10(2) of the Constitution investments made by beer distributors in Kenya constitute irrebuttable goodwill, automatically qualifying as property.”
40.
We however note that the Court of Appeal held that it was in error for the trial court to base its findings on the renewal of the Kenya Distribution Agreement on the application of public law principles or interpretation of the Constitution. In this respect, it found that the Law of Contract was sufficient in the adjudication of contractual cases when applied in the context of the procedural imperatives contained in article 159(2)(d) (without undue regard to procedural technicalities) and article 10 (national values) of the Constitution. The Court of Appeal dismissed the appeals save for the grounds of legitimate expectation and the order for account for profits. It set aside the injunction order terminating the distribution agreement and appointing any other distributor including the declaration that there was a violation of article 19 and 27(2) of the Constitution. The appellate court upheld the award of special damages for loss of business of Kshs.1,799,978,868.00 to be paid by the petitioners arising from their repudiatory breach of the Kenya Distribution Agreement and the declaration issued by the High Court that the Notice of Termination was unlawful, irregular, unprocedural and therefore null and void.
41.
It is clear that whereas there was mention of constitutional provisions by the High Court and the Court of Appeal, the material question before the two superior courts was on the validity of the termination notice issued to the 2nd respondent. In arriving at its final orders, the two courts examined the Distribution Agreement, in the grant of the orders sought. Its final determination was therefore not pegged on and indeed had nothing to do with the interpretation or application of the Constitution. The petitioners have urged that the Court of Appeal’s decision took a constitutional trajectory based on its finding on article 10 of the Constitution. An examination of the judgment of the appellate court demonstrates that whereas there was a mention of article 10(2) of the Constitution, this was only to aid the court but had no impact on the final decision as the court. Further, the appellate court even held that the law of contract was sufficient in determining the matter and found that the trial court erred to base its findings on the renewal of the Kenya Distribution Agreement on the application of public law principles or interpretation of the Constitution.
42.
In Aviation & Allied Workers Union of Kenya v Kenya Airways Limited & 3 others Petition 4 of 2015 [2017] KESC 11 (KLR) where this court was faced with a similar issue, we stated as follows:
“
…Although the superior courts may have made reference to certain provisions of the Constitution, it was only in broad terms in the spirit of the new constitutional order, which requires that all decisions made by any public organ, officer or person, must lie in consonance with certain constitutional signals. In that regard, the Constitution is a living charter which governs our daily lives. Hence the pertinence of the Industrial Court’s finding that the 1st respondent, in making its decisions, is to be guided by the values and principles enshrined in article 10 of the Constitution. To answer the question, therefore, whether article 10 of the Constitution was the subject of the court’s interpretation, we find that the appellant’s case at the Industrial Court, as well as the 1st respondent’s case at the Court of Appeal, squarely entailed the interpretation and application of the terms of the Employment Act and the Labour Relations Act, in so far as their focal point was the issue of redundancy. All references to the terms of the Constitution were guided only by the object of incorporating this charter’s spirit, values and principles.”
43.
In Benson Ambuti Adega (supra) we held that where the interpretation or application of the Constitution has only but a limited bearing on the merits of the main cause, then the jurisdiction of this court may not be properly invoked. The mere reference to the rich generality of a constitutional principle as the Court of Appeal did in the present case on article 10 is not a sufficient ground to invoke article 163(4)(a). A perusal of the judgment of the Court of Appeal demonstrates that the main issue concerned the validity of the termination notice pursuant to the Distribution Agreement. We note that the court based its decision mainly on the repudiatory breach of the contract. At paragraph 108, the court held as follows:
“
The appointment of the third party distributors by Heineken EA and Heineken B.V during the litigation between the parties was accordingly in breach of Clause 26 of the Kenya Distribution Agreement. In addition, since the appointment of the third party distributors essentially terminated the exclusive nature of the Kenya Distribution Agreement, we find it to have been a repudiatory breach by Heineken E.A and Heineken BV, as it essentially deprived Maxam Ltd of the core benefit of the Kenya Distribution Agreement.”
44.
Further in its final orders at paragraph 155, Order No 5 it stated; “We affirm and uphold the award by the High Court to Maxam Ltd of special damages for loss of business of Kshs 1,799,978,868.00 to be paid by Heineken EA and Heineken BV, arising from their repudiatory breach of the Kenya Distribution Agreement.” This was not based on the interpretation or application of the Constitution, specifically of article 10(2). The interpretation or application of article 10 therefore had a limited bearing to the decision of the Court of Appeal. It is crystal clear to us that the petitioners’ cases do not meet the requisite jurisdictional threshold under article 163(4)(a) of the Constitution.
45.
Having determined that we have no jurisdiction to determine the appeals, the notice of motion applications seeking stay of execution fall by the way side.
46.
Consequently, for reasons aforesaid, we make the following orders:
i.
The notice of motion application dated June 26, 2024 and filed on June 26, 2024 be and is hereby allowed;
ii.
The notice of motion application dated July 8, 2024 and filed on even date be and is hereby allowed;
iii.
The notice of motion application dated June 24, 2024 and filed on June 27, 2024 is hereby struck out for want of jurisdiction;
iv.
The notice of motion application dated June 1, 2024 and filed on June 13, 2024 is hereby struck out for want of jurisdiction;
v.
The Petition of Appeal No E027 of 2024 dated June 1, 2024 and filed on June 13, 2024 is hereby struck out for want of jurisdiction;
vi.
The Petition of Appeal No E028 of 2024 dated June 24, 2024 and filed on June 27, 2024 is hereby struck out for want jurisdiction;
vii.
We hereby direct that the sum of Kshs 6,000/= deposited as security for costs in Petition of Appeal No E027 of 2024 and Appeal No E028 of 2024 herein be refunded to the petitioner.
viii.
There shall be no orders as to costs.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/59/eng@2024-10-18
Application E020 of 2024,Njenga v Masto Holdings Limited & 4 others; The Co-Operative Bank Of Kenya (Interested Party) (Application E020 of 2024) [2024] KESC 60 (KLR) (18 October 2024) (Ruling),Ruling,Supreme Court of Kenya,Supreme court,"MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",18 October 2024,2024.0,Nairobi,Civil,Judith Wanjiru Njenga vs Masto Holdings Limited and PM Ng’Ang’A and The Chief Land Registrar and The Attorney General and National Land Commission and The Co-Operative Bank Of Kenya,[2024] KESC 60 (KLR),,"Representation:
Mr. Mbichire for the Applicant
(Mbichire & Company Advocates)
Dr. Muthomi Thiankolu for the 1st Respondent
(Muthomi & Karanja Advocates)
Mr. William Muthee for the Interested Party
(TripleOK Law LLP Advocates)
1.
Upon reading the Motion dated June 19, 2024and filed on June 25, 2024by the applicant, pursuant to articles 47, 48, 50, 163(4)(b) of the Constitution, section 3, 3A and 23A of the Supreme Court Act, rule 32 of the Supreme Court Rules, 2020 seeking the following orders:
1.
That this Honourable Court be pleased to grant a stay of execution of the Judgment of the Court of Appeal at Nairobi delivered on the April 26, 2024by Honourable Justices F Tuiyott, L. Achode and M Gachoka JJ A in Civil Appeal No 632 of 2019 Mastro Holdings Ltd v Judith Njenga & 4 others pending the determination of the Certification Application filed in Civil Application SUP No E010 of 2024 before the Court of Appeal;
2.
That this Honourable Court be pleased to issue a temporary injunction restraining the 1st respondent, its members, its agents, servants, employees and/or representatives from entering, taking possession of and in any other manner interfering with the suit property namely LR No 209/522/2 pending the determination of the Certification Application filed in Civil Application SUP No E010 of 2024 before the Court of Appeal;
3.
That this Honourable Court be pleased to grant such other appropriate relief as it deems fit to give effect to the orders sought herein; and
4.
That costs of this application be provided for; and
2.
Upon perusing the grounds on the face of the application, the supporting affidavit by Judith Wanjiru Njenga sworn on June 19, 2024and written submissions of even date wherein the applicant contends that she has been the registered proprietor of LR 209/522/2 (hereinafter the “suit property”) which has been the subject matter of several suits between herself, the 1st respondent and the interested party herein on allegations that the suit property was charged to the interested party and sold to the 1st respondent; she contends that the suit property comprises her matrimonial home to which she holds an original title; that the 1st respondent produced a fraudulent copy of title and which has never been verified by lands office or supported by any search nor was the original copy produced in court. After a protracted court battle before the Environment and Land Court, the Court (Bor J) found in favour of the applicant issuing a permanent injunction against the 1st respondent stopping him from harassing, evicting, trespassing upon or in any manner interfering with the suit property; upon appeal by the 1st respondent, the Court of Appeal overruled the trial court and revoked the applicant’s title, ordered for rectification of the register in favour of the 1st respondent, issued a permanent injunction against the applicant and ordered for the applicant’s eviction to be enforced by the OCS Central Police Station; the Court of Appeal granted the applicant reprieve of sixty (60) days from the date of the judgment to vacate the land, failing which she would be evicted.
3.
Further, aggrieved by the decision of the Court of Appeal, the applicant lodged an application on May 17, 2024seeking leave to appeal and certification to appeal under article 163(4)(b) of the Constitution, which application was heard on June 11, 2024 and ruling reserved for November 8, 2024; that her application seeking stay of execution and/or status quo was rejected by the Court of Appeal on account of lack of jurisdiction; that should her application for certification and eventual decision by this Court be successful, it would amount to an act in futility as the 1st respondent would have proceeded with her eviction from the suit property; that her application before this court is merited as her intended appeal is arguable urging that the Court of Appeal disregarded any attempt to interrogate the issues of validity of the instrument of charge that gave rise to the statutory power of sale and ended up validating a charge that was not registered against the title; the Court of Appeal further failed to rule as regards the operational parts of the transfer of a proprietary right or interest in property under the provisions of section 23(1) of the Registration of Titles Act and whether the provisions of section 69 (B) (2) of the Indian Transfer of Property Act are absolute and afford protection to a ‘purchaser’ even where there was a flawed process followed in the exercise of a statutory power of sale.
4.
Moreover, the applicant adds that the decision by the Court of Appeal was in conflict with the dicta in the decision by this court in Dina Management Limited vs County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR); that due to the date given for the ruling on certification, she is left exposed to eviction pursuant to the orders in the Judgment of the Court of Appeal as the sixty(60) days granted in the judgment expired on 25th June, 2o24; she adds that she is aged 80 years old and has been in occupation of the suit property for over 50 years (since 1974) and without the stay of execution she will be forcefully evicted which will cause her irreparable harm that cannot be compensated by any form of damages.
5.
Additionally, the applicant acknowledges that the rules of this court, in particular, rule 31(2) of the Supreme Court Rules, 2020, do not permit applications to be brought before a petition is lodged; she, however, urges that this court is her saving grace to help her maintain her home and preserve the suit property; she implores the court to exercise its jurisdiction to grant conservatory status quo orders under its inherent powers to prevent a miscarriage of justice and preserve the subject matter of the intended appeal; she cites the cases of Deynes Muriithi & 4 Others vs Law Society of Kenya & Another [2016] e KLR and Board of Governors, Moi High School, Kabarak & Another vs Bell & 2 Others (Petition 6 & 7 of 2013 & Civil Application 12 & 13 of 2012 (Consolidated)) [2013] KESC 12 (KLR) to bolster her plea; and
6.
Upon perusing the response by the 1st respondent by way of preliminary objection dated July 3, 2024 anchored on sections 15B and 23A of the Supreme Court Act and rules 31(2) and 32 of the Supreme Court Rules, 2020 and submissions dated July 5, 2024; citing the decisions in National Land Commission vs. Tom Ojienda & Associates & 2 Others [2024] KESC 16 (KLR) and Mbugua alia George Boniface Nyanja vs. Iqbal (Personal representative of the Estate of the Late Ghulan Rasool Janmohamed [2024] KESC 41 (KLR) the 1st respondent argues that the court has no jurisdiction on account of the applicant’s Motion being premature or unripe to the extent that the applicant’s right to appeal to this Court has yet to crystallize as her application for certification or leave to appeal is still pending before the Court of Appeal; interlocutory applications in appeals to the Supreme Court can only be filed within an existing appeal; therefore the question of whether the applicant has met the legal threshold for grant of stay of execution or any other relief is equally premature or unripe; it is also argued that the two decisions the applicant relies on being Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] e KLR and Deynes Muriithi & 4 Others vs Law Society of Kenya & another [2016] e KLR are irrelevant and distinguishable as they relate to cases involving appeals as of right under article 163(4)(a) of the Constitution; while the case of Board of Governors, Moi High School, Kabaraka & Another vs. Malcolm Bell [2013] eKLR is equally irrelevant and distinguishable as the applicant therein had already secured certification and timeously filed their Petition and Record of Appeal; this court is urged to dismiss or strike out the application, with costs; and
7.
Upon perusing the preliminary objection dated July 2, 2024and written submissions dated July 4, 2024by the interested party in opposition to the application and on similar grounds as those advanced by the 1st respondent;","Having considered the totality of the applications, responses and rival arguments by the parties, We Now Opine as follows:
i.
Guided by the provisions of section 23A of the Supreme Court Act, this Court has jurisdiction to issue an order for stay of execution, an injunction, stay of further proceedings or any other conservatory or interim orders, on such terms as the Court may deem fit. It is well established following our decision in the case of Gatirau Peter Munya vs. Dickson Mwenda & 2 others, SC Application No. 5 of 2014, [2017] eKLR that an applicant must satisfy the Court that the appeal is arguable and is not frivolous; that unless the orders of stay are granted, the appeal will be rendered nugatory; and thirdly, it is in the public interest that the order of stay be granted.
ii.
However, appreciating what we stated in Aviation & Allied Workers Union Kenya v. Kenya Airways & Others; SC Application No. 50 of 2014, [2015] eKLR that where a court’s jurisdiction, is objected to by any party to the proceedings, such an objection must be dealt with as a preliminary issue, before the meritorious determination of any cause. We must therefore evaluate whether the instant application has met the set jurisdictional threshold.
iii.
Noting that in the cases of James Mbatia Thuo & Ephantus Mwangi v Kenya Railways Corporation & Attorney General of Kenya, SC Civil Application No. 10 of 2017 [2018] eKLR and Boniface Mbugua v Mohammed Jawayd Iqbal (Personal representative of the Estate of the late Ghulam Rasool Jammohamed), SC Misc. Application No. 7 (E011) of 2021 [2021] eKLR this court held that interlocutory applications have no legal basis in the absence of an appeal accompanied by a memorandum of appeal. We further note that this judicial pronouncement is now enacted in the Supreme Court Rules, 2020 in which rule 31(2) provides that: “an interlocutory application shall not be originated before a petition of appeal or a reference is filed with the court.”
iv.
For the above reason, no interlocutory application can be brought before a petition of appeal or reference is lodged. Put another way, an interlocutory application must be based on an existing petition or Reference. We are thus inclined to agree with the 1st respondent and interested party that without a substantive appeal to anchor the applicant’s motion, this Court is bereft of jurisdiction to grant the orders sought.
v.
Further, the applicant states that she had sought conservatory orders of stay of execution before the Court of Appeal but the same was denied due to a lack of jurisdiction. However, having perused the record, we note that the applicant, though represented by counsel, rather than file a proper application under the relevant rules before the Court of Appeal, erroneously sought stay of execution before the Deputy Registrar of the Court of Appeal when the parties appeared for settlement of terms. We say no more on the issue.
vi.
Consequently, while we appreciate and understand the applicant’s circumstances, the court lacks the requisite jurisdiction to grant the orders sought.
9.
Accordingly, and for the reasons aforestated we make the following orders:
i.
The applicant’s Notice of Motion dated June 19, 2024and filed on June 25, 2024be and is hereby dismissed;
ii.
Each Party shall bear their costs of the Application.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/60/eng@2024-10-18
Petition (Application) E012 of 2023,Dari Limited & 5 others v East African Development Bank (Petition (Application) E012 of 2023) [2024] KESC 58 (KLR) (Civ) (11 October 2024) (Ruling),Ruling,Supreme Court of Kenya,Supreme court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko",11 October 2024,2024.0,Nairobi,Civil,"Dari Limited and Raphael Tuju, Mano Tuju, Alma Tuju, YMA Tuju, SAM Company Limited and East African Development Bank
,",[2024] KESC 58 (KLR),,"1.
This Ruling disposes of the Notice of Motion dated May 16, 2024and filed on May 17, 2024, seeking stay of this Court’s proceedings pending the determination of the complaint lodged before the Judicial Service Commission (hereinafter JSC) as well as costs. The Motion is brought pursuant to articles 48, 50(1), 163(3) and (4)of the Constitution, Section 24 of the Supreme Court Act, and rule 32 of the Supreme Court Rules. It is instructive to note that prayers 1, 2, and 3 are now spent following the court’s directions for the disposal of the instant application issued on May 21, 2024.
2.
The proceedings before this Court were instituted by the appellants/applicants through their Petition No. E012 of 2023 dated April 25, 2023and lodged on April 26, 2023, against the Judgment of the Court of Appeal (M’inoti, Laibuta & Gachoka, JJA) delivered on April 20, 2023 in Civil Appeal No 70 of 2020. The crux of the appeal is the interpretation of the jurisdiction of the High Court under the Foreign Judgment (Reciprocal Enforcement) Act. We shall say no more on the appeal, its merits or demerits as it is not for determination before us at this juncture.
3.
However, it is imperative to set out in summary the proceedings before this court leading to the instant application. Following the filing of the appeal, on one hand, the appellants/applicants filed the notice of motion(Application E017 of 2023) dated April 25, 2023, seeking stay of execution and stay of proceedings before the High Court. On the other hand, the respondent filed two Motions, Petition (Application) E012 of 2023 dated 2June 3, 2023, and application E017 of 2023 of even date, both seeking to strike out the appellants/applicants’ supplementary affidavits by Raphael Tuju, Amos Oketch and Edward Kenneth Okundi. By a composite Ruling delivered on October 6, 2023, the court disposed of all three applications, dismissed the appellants/applicants’ application and allowed the respondent’s applications.
4.
Aggrieved, the appellants/applicants filed two new applications; Notice of Motion (Application E017 of 2023) dated October 12, 2023, seeking review of the Court’s Ruling dated October 6, 2023; and Notice of Motion (Petition (Application) E012 of 2023) dated October 26, 2023, seeking to strike out the respondent’s replying affidavit sworn by Justa Kiragu on May 12, 2023, or in the alternative, leave to adduce additional evidence in terms of the affidavits of Raphael Tuju, Amos Oketch and Edward Kenneth Okundi sworn on October 26, 2023.
5.
On October 31, 2023, the court issued a hearing notice scheduling the main appeal for hearing on November 13, 2023. Of pertinence is that the two applications were pending when the Court listed the appeal for hearing. In reaction to the hearing notice, by a letter dated November 6, 2023, addressed to the President of the court, the appellants notified the court of the two pending applications and requested the court to have the main appeal set down for hearing after the determination of all the pending applications.
6.
In response, vide a letter dated November 6, 2023, the court through its Deputy Registrar categorically communicated that it had no intention or reasons to rush the matter unprocedurally. Further, that the court’s only objective was to expeditiously dispose of all cases filed before it without undue delay. Noting the pending applications, the hearing notice of November 13, 2023was vacated to allow for their determination. Thereafter, the two applications were determined by way of submissions and dismissed by two separate Rulings dated November 7, 2023.
7.
After the Rulings of November 7, 2023, the appellants/applicants filed two more applications; the Notice of Motion (Petition (Application) No. E012 of 2023) dated January 26, 2024, seeking to adduce additional evidence in a further witness statement dated December 21, 2023, recorded by one David Washington Barnabus Ochieng with the Directorate of Criminal Investigations; and the Notice of Motion (Petition (Application) No. E012 of 2023) dated February 2, 2024, seeking to strike out the respondent’s replying affidavit sworn by Carol Luwaga on January 31, 2014, in response to the latter motion. By a composite Ruling delivered on April 26, 2024, both applications were dismissed.
8.
By a second letter dated February 5, 2024, addressed to the President of the court, the appellants/applicants complained of the manner in which the court handled their applications, challenging the merits of the Rulings of October 6, 2023and November 7, 2023. They accused the court of handling the applications in a manner that led them to believe that the court was working towards a pre- determined outcome. In a response dated February 13, 2024, the full Bench of the court, through the Registrar, acknowledged receipt of the letter dated February 5, 2024, and reassured the appellants/applicants that the Judges were mindful of the oath of office as they discharge their constitutional mandate. Be that as it may, the court made it clear that it cannot be directed as to the manner in which it discharges this mandate.
9.
Subsequently, on April 30, 2024, the appellants/applicants through the firm of Okatch & Partners Advocates, filed a complaint before the JSC against a Bench of the Court (Mwilu, DCJ & VP; Ibrahim, Wanjala, Njoki, & Ouko, SCJJ) that had heard and determined the impugned Rulings. The complaint was brought pursuant to section 3 of the Judicial Service Act, Part II, sections 8,9,11,14,15 and 16 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 and section 29E of the Supreme Court Act. The gist of their complaint is that the Court has dealt with applications filed before it and issued case management directions in a manner that disregards the appellants/applicants’ rights to fair hearing and access to justice. Further, that the Court has been working towards a pre-determined goal in the matter.
10.
Thereafter, vide a Notice of Change of Advocates dated May 2, 2024, the appellants/applicants appointed the firm of Okatch & Partners Advocates, to conduct this matter on their behalf and in place of the firm of VA Nyamodi & Company Advocates. Upon the determination of all the pending interlocutory applications, on May 6, 2024, the court issued a hearing notice to the parties scheduling the matter for hearing on May 21, 2024. The court’s hearing notice triggered the instant application under certificate of urgency. Upon considering the Certificate of Urgency, on May 17, 2024, the court directed that the application be mentioned on the May 21, 2024, when the main appeal was scheduled for hearing.
11.
On May 21, 2024, when the appeal came up for hearing, the question of the appellants/applicants’ representation was raised. It was unusually contended that the firm of Okatch & Partners Advocates was on record for the appellants/applicants with regards to the instant application only, while the firm of VA Nyamodi, led by Paul Muite SC (to the exclusion of the firm of Okatch & Partners Advocates) was on record for the appellants/applicants in the main appeal. The court adjourned the hearing pending the determination of the instant application. Moreover, it directed that the application was to be determined by way of written submissions, and issued consequential compliance directions to that effect.
12.
Turning back to the motion before us, we note the grounds on the face of the application, and supporting affidavit sworn by Raphael Tuju on May 16, 2024. Wherein, the appellants/applicants argue that; the jurisdictional issues raised in the appeal transcend the parties’ case and the court’s determination is binding on all the courts below. The deponent avers that the court (specifically Lady Justice Philomena Mwilu (DCJ & VP), Justice Mohammed Khadar Ibrahim, Justice (Dr) Smokin Wanjala, Lady Justice Njoki Ndungu and Justice William Ouko, SCJJ), has ignored important and pertinent matters and procedures that are directly relevant and integral to the main issues in the appeal. It is his assertion that despite the appellants/applicants’ complaints, the Court has ignored or refused to take any action in remedy thereof. The deponent is categorical that the Judges’ actions are not only unfair to the appellants/applicants, they are also indicative of the fact that the court is working towards a predetermined outcome. The deponent goes on to aver that the court has actively and continually worked to defeat the appellants/applicants’ rights to fair hearing and access to justice.
13.
It is the appellants/applicants’ further case that the five Judges have conducted themselves in a manner that is impartial and departs from the basic expectations of a court of law; that the court has fallen short of its mandate under the Constitution; that the said Judges’ conduct falls short of the required standard of conduct under the Judicial Service (Code of Conduct and Ethics) Regulations2020, and the Judicial Service Act; and that the impugned actions and omissions necessitated the filing of the complaint against the five Judges to the JSC.
14.
Consequently, it is their case that once the complaint is heard and determined, the Judges will have a chance to introspect, recalibrate and appreciate the impact of their decisions and the JSC will give proper directions on the hearing of the main appeal. In the foregoing, it is only fair to first allow the complaint before the JSC to run its course, and as such, it is just and equitable that the instant application be determined on a priority basis.
15.
In their submissions dated May 16, 2024, the appellants/applicants reiterate their grounds in support of the application. In addition, they argue that they have completely lost faith in the court’s administration of justice and would ideally call for the recusal of the said Judges. They cite the House of Lords decision in R v Bow Street Metropolitan Stipendiary Magistrates & Others Ex Parte Pinochet Urgate to the effect that where a Judge’s action gives rise to a suspicion of lack of impartiality, this is enough for the Judge to recuse himself from the proceedings. However, they are quick to add that guided by this court’s decisions in Gladys Boss Shollei & Another v Judicial Service Commission and Another (Petition 34 of 2014) [2022] KESC 5 (KLR), despite the fact that they have adduced enough grounds for recusal, the doctrine of necessity and of statutory authority would militate against such a prayer. In the circumstances, they urge that it is only fair for the court to allow the JSC to hear and determine the pending complaint before proceeding to hear the main appeal.
16.
Opposing the motion, the respondent filed its replying affidavit sworn by Carol Luwaga on May 27, 2024, to the effect that the application lacks merit as no justification has been demonstrated for the orders prayed to issue. The respondent states that the application has failed to meet the principles for grant of stay of proceedings and is therefore, one for dismissal. In response to the specific arguments by the appellants/applicants, the respondent sets out in great detail the sequence of the proceedings and court orders issued by this court and the superior courts below, illustrating the appellants/applicants’ continued contempt and disobedience of the same.
17.
Moreover, the respondent sets out the events and parties’ conduct during the proceedings before this court leading to the impugned Rulings, urging that the application fails to demonstrate how the court’s determination would warrant the grant of stay. It is the respondent’s further case that in any event there is no nexus between the appeal and the complaint before the JSC. Furthermore, it is the respondent’s case that the allegations levelled by the appellants/applicants against the court are unsubstantiated by evidence.
18.
The respondent also asserts that the appellants/applicants are undeserving of the orders for stay of proceedings on account of their continuing contempt and non- compliance with the superior court rulings and orders as well as this court’s case management directions. It is also the respondent’s averment that the appellants/applicants have intentionally delayed the conclusion of the dispute; attempted to harass the Judges handling this matter with unsubstantiated allegations of bias and/or applications for their recusal both before the superior courts and this court; continually advanced a false basis for their failure to pay the outstanding loan amount; and therefore, have approached the courts with unclean hands and are underserving of any equity.
19.
In its written submissions dated May 28, 2024, the respondent submits that the appellants/applicants have failed to meet the principles for grant of stay of proceedings under section 23A of the Supreme Court Act settled in Khan v International Commercial Company (K) Ltd (Petition (Application) E009 & E010 of 2023 (consolidated) [2023] KESC 84 (KLR) (Ruling). It emphasises that grant of stay of proceedings is only entertained in very deserving cases, to protect parties’ right to expeditious trials. In any event, it is the respondent’s argument, firstly, that the appellants/applicants have lodged an unsubstantiated complaint before the JSC and failed to expressly identify the law the court has contravened as a consequence of its impugned Rulings or case management directions. The respondent submits that the JSC has yet to acknowledge or confirm the substance of the complaint. Therefore, the mere lodging of the same by the appellant cannot operate as a basis for grant of stay. It is the respondent’s argument that the appellants/applicants have failed to explore all the legitimate avenues for redress before the court including moving the court for review of the impugned Rulings. The respondent submits that the real intention of the appellant vide the instant application, is to inhibit the court from exercising its mandate under article 163 of the Constitution.
20.
Secondly, the respondent submits that the appellants/applicants have not approached the court in good faith and therefore are not entitled to the discretionary prayer sought. The respondent contends that the appellants/applicants have employed reprehensible tactics to delay the conclusion of the appeal including employing calculated and deliberate intimidation of the Judges of the court; their application is not in compliance with the Supreme Court Rules or the Civil Procedure Rules that guide litigation in Kenya; and that the conduct of the appellants/applicants’ counsel is without decorum and does not preserve the dignity of the court.
21.
The respondent relies on this court’s jurisprudence in Odinga & 16 Others v Ruto & 10 Others; Law Society of Kenya & 4 Others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 54 (KLR) (Election Petitions) (Judgment); and R v Ahmad Abolfathi Mohamed & Sayed Mansour Mousavi (Petition 39 of 2018) [2019] KESC 48 (KLR) (Judgment) to caution and frown against behaviour unbecoming of advocates, as officers of the court. In conclusion, it is urged that justice delayed is justice denied and the respondent should be allowed to enjoy the fruits of its Judgment based on the foreign court Judgment issued on June 19, 2019. In the circumstances, the respondent urges that it will be greatly prejudiced if the application is allowed.
22.
The court also takes note of the appellants/applicants’ rejoinder affidavit sworn by Raphael Tuju on June 4, 2024and supplementary submissions of even date both filed on June 10, 2024, reiterating the grounds in support of the application. The appellants/applicants also urge the court to render justice and allow the application by exercising its powers to grant discretionary orders under section 24A, or to grant interlocutory reliefs under 24(1) of the Supreme Court Act, or exercise its inherent powers under articles 159, 163 of the Constitution and rule 3(3) and(5) of the Court’s Rules to regulate its own processes as settled in Board of Governors, Moi High School Kabarak & Another v Bell & 2 Others (Petition No 6 &7 of 2013 & Civil Application No 12 &13 of 2012(consolidated) [2013] KESC 12 (KLR) (Ruling). It is also their submission that contrary to the respondent’s argument, the JSC complaint was registered on May 17, 2024 as JSC Petition No 35 of 2024; and the instant application can be distinguished from the facts leading to the Khan v International Commercial Company (K) Ltd [supra] decision, for reasons that the instant application was brought in good faith, filed in the earliest time possible without any delay, and seeks to economically utilise the Court’s time;
23.
Furthermore, the appellants/applicants urge that the complaint before the JSC raises clear grounds of impropriety and misconduct which has affected their perception of fairness; the application is not meant to delay the determination of the appeal before this court; and, even though restrained from arguing the merits of the appeal at this stage, in response to the respondent’s assertions, it is imperative to point out that the Judgment of the foreign court was acquired by reliance on perjured evidence and statement. In conclusion, they contend that the rights to fair hearing and access to justice are inalienable and must be protected by all institutions including the apex court.","24.
The appellants/applicants herein are seeking a stay order from this court in the most unusual, strange, and we daresay, disingenuous strategy. Through this application, they are moving the court to stay these proceedings awaiting the conclusion and determination of a complaint they have filed at the JSC against the Five-Judge Bench constituted to hear and determine their Appeal. In their Petition before the JSC, the appellants/applicants have brazenly accused the five Judges of impropriety and misconduct. They allege that the Court is working towards a predetermined outcome. The details of their petition have already been highlighted in paragraphs 12, 13, 14 and 15 of this Ruling.
25.
We shall limit ourselves to the technical and substantive adequacy of the Motion before us, so as not to prejudice the appellants/applicants’ prosecution of their petition before the JSC. Towards this end, it is clear that the appellants/applicants are not seeking a stay of the Judgment of the Court of Appeal. Instead, they are seeking a stay of their own appeal pending the determination of a complaint they have filed against the five of us at the JSC. As such, the principles established for grant of stay by this court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR are not applicable to this application. In the same vein, it does not require superlative archival effort to discover that there exists no provision of the Constitution, the Supreme Court Act, or Rules of this Court as would entitle a litigant to make such an application.
26.
What is undeniable, is the fact that by resorting to this course of action, the applicants are unequivocally accusing this Bench of lack of impartiality, fairness, and integrity. Such an accusation against a Judge goes to the very core of his/her oath of office. Coming from a party to ongoing proceedings, such an allegation, must strongly persuade the Judge to recuse him/herself from further participation in the proceedings. Indeed, the honourable recourse by the litigant is to seek the recusal of the Judge. This is precisely what has happened to us, save that instead of applying for our recusal, the applicants herein would rather this court stayed the proceedings until the JSC determines their complaint, a very strange move, to say the least.
27.
Having arrived at the inescapable conclusion that we are being accused of bias and working towards an undisclosed predetermined outcome, we are strongly persuaded that our further participation in these proceedings would not serve the ends of justice, at least in the eyes and perception of the appellants/applicants. Consequently, and inevitably, each of us on this Bench does hereby recuse him/herself from further participation in the hearing and determination of the appeal dated April 25, 2023and filed on April 26, 2023.
28.
In taking this decision, we are keenly aware of its consequences on the appeal before us, given the constitutional provisions as to quorum of this court. Indeed, such a decision is one that ought only to be taken very sparingly, on a case by case basis, and in the most compelling circumstances. However, in the face of the accusations of impropriety and bias, levelled against an entire Bench of the court, even the doctrine of necessity cannot be available to the appellant/applicants. Furthermore, what would become of the administration of justice in the Country, if courts of law, leave alone the Supreme Court, were to be required to stay proceedings before them, pending the determination by the Judicial Service Commission of complaints filed against Magistrates and Judges?
29.
The following Orders shall issue:
i.
The Notice of Motion dated May 16, 2024, is hereby dismissed.
ii.
The Judgment of the Court of Appeal dated April 20, 2023, shall stand until it is either affirmed, or reversed by a competent Bench of this court.
iii.
Each party shall bear its own costs.
It is so ordered.",Dismissed,https://kenyalaw-website-media.s3.amazonaws.com/media/judgment/598445/attachments/854480e38863db19/Ruling-SC_PetitionApplication_No._E012_of_2023_Dari_Limited__5_Others_V_East_African_Development_Bank.docx?X-Amz-Algorithm=AWS4-HMAC-SHA256&X-Amz-Credential=AKIAW3MD6KGF6U7CTJHR%2F20250414%2Feu-west-1%2Fs3%2Faws4_request&X-Amz-Date=20250414T102333Z&X-Amz-Expires=3600&X-Amz-SignedHeaders=host&X-Amz-Signature=a8a7eb9dda264f60097913c4f0fe63243bc0ae660e27ccc1e31516fd1618a4bf
Petition E031 of 2024,"Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others (Petition E031, E032 & E033 of 2024 (Consolidated)) [2024] KESC 57 (KLR) (5 September 2024) (Ruling)",Ruling,Supreme Court of Kenya,Supreme court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",5 September 2024,2024.0,Nairobi,Civil,"The Cabinet Secretary For The National Treasury And Planning,The Attorney General,The National Assembly,The Speaker of the National Assembly,Kenya Revenue Authority and Okiya Omtatah Okoiti
,Eliud Karanja Matindi,Michael Kojo Otieno,Benson Odiwour Otieno,Blair Angima Oigoro,Hon Senator Eddy Gicheru Oketch
,Victor Okuna,Florence Kanyua Lichoro,Daniel Otieno Ila,Rone Achoki Hussein,Clement Edward Onyango,Paul Saoke
,Law Society Of Kenya,Azimio La Umoja One Kenya Coalition Party,Kenya Human Rights Commission,Katiba Institute,The Institute For Social Accountability (Tisa),Transparency International Kenya,International Commission Of Jurists-Kenya (Icj Kenya),Siasa Place
,Tribeless Youth
,Africa Center For Open Governance,Robert Gathogo Kamwara,Trade Unions Congress of Kenya , Kenya Medical Practitioners,Pharmacists and Dentist Union, Kenya National Union of Nurses, Kenya Union of Clinical Officers, Fredrick Onyango Ogola, Nicholas Kombe, Whitney Gacheri Micheni, Stanslous Alusiola, Herima Chao Mwashigadi, Dennis Wendo, Mercy Nabwire , Bernard Okelo, Nancy Otieno, Mohamed B DUB, Universal Corporation Limited, Cosmos Limited, Elys Chemical Industries, Regal Pharmaceuticals, Beta Healthcare Limited , Dawa Limited, Medicel Kenya Limited, Medivet Products Limited, Lab and Allied Limited ,BioPharm Limited, Zain Pharma limited, The Speaker of the Senate, Consumers Federation of Kenya ( cofek), Kenya Export Floricullture, Horticulture, and Allied Workers Union, Dr Maurice Jumah Okumu",[2024] KESC 57 (KLR),,"Upon reading the Notice of Motion dated 29th August 2024 and lodged before this Court on 30th August 2024, by 1st, 2nd 4th & 5th Respondents/Applicants seeking, orders inter alia that-
a.
The directions and orders issued by this Honourable Court in the ruling dated and delivered 20th August 2024, specifically Order No. (iii) be and are hereby varied and set aside.
b.
An Order be and is hereby issued that the 1st, 2nd, 4th, and 5th Respondents herein having filed and transmitted to the Registrar of this Court, and served on all parties, their Notice of Appeal dated 12th August 2024, have up to 24th September 2024 to institute their intended Petition of Appeal.
c.
This Honourable Court do issue fresh directions in line with the Supreme Court Rules, 2020 taking into consideration the timelines and statutory requirements, allowing all parties sufficient time to file and serve their respective pleadings, responses, and any necessary cross-appeals.
d.
The consolidated appeals be rescheduled for hearing on a date that allows all parties adequate time to comply with the procedural requirements as provided under the Supreme Court Rules, 2020.
e.
Any other or further directions that this Honourable Court deems fit and just to grant in the circumstances; and
2.
Taking into account the affidavit in support of the Motion sworn by Benson Odiwuor Otieno, the 4th Respondent/Applicant herein, and their written submissions both dated 29th August 2024 wherein the applicants submit that; their case before the High Court i.e. Petition No. E181 of 2024 and Petition E021 of 2024 and in the Court of Appeal i.e. Civil Appeal No. E021 of 2024 had sought broader declarations on the unconstitutionality of the Finance Act 2023 than are now before the Court; the appeals were distinct in scope and raised unique issues not found in the three consolidated appeals; this Court ordered the consolidation of the petitions of appeal herein, while the timeline for filing responses to the consolidated appeal, particularly S.C. Petition No. E033 of 2024, had not lapsed thus prejudicing their right to adequately prepare their responses and any necessary cross- appeals; the consolidation order did not address or provide any guidance regarding the responses to the Petition of Appeal as consolidated; the deadline for filing a response to S.C. Petition No. E033 of 2024 would lapse on 30th August 2024 but, when the matter was mentioned before the Deputy Registrar of the Court, only 9 days had lapsed out of the 14 days allowed for an affected party to respond to an appeal; the Deputy Registrar’s directions, stating that the time for filing a response had lapsed, were in clear violation of Rule 42 of the Supreme Court Rules and blatantly disregarded the statutory timelines; the Court, having already granted conservatory orders, should not have had any legitimate reason, under the guise of urgency of the appeal, to curtail the parties’ right to fully prepare for the hearing of the appeal.
3.
They urge further that, based on the rules of computation of time as provided under Section 57 of the Interpretation and General Provisions Act (Cap.2) as read with Section 15 of the Supreme Court Rules, having filed and transmitted to the Registrar and served on all parties their Notice of Appeal, the deadline for the applicants to institute their appeal will lapse on 24th September 2024, and therefore, it would be contrary to the Rules of the Court to lock them out while they are still within the timeline set for institution of appeals. That the issues raised in their Notice of Appeal are also unique in scope and have not been raised by the petitions already filed in this matter and they are apprehensive that should they later institute their petition of appeal, the Court will most likely want to consolidate it with the already consolidated ones, or should the Court proceed to determine the three petitions already filed, it may later decline to entertain their appeal. It would, in the circumstances, be just and expedient to hear all the appeals relating to the challenge of the Court of Appeal judgment, at once, rather than in instalments; and
4.
Upon reading the Replying Affidavit by the 1st and 2nd Appellant’s dated 3rd September 2024 and sworn by Charles Hinga the Principal Secretary for the Ministry of Public works, Housing and Urban Development wherein he avers that they have complied with the directions issued by the Court on 20th August 2024; and that they understand the need to expedite the matters and the overbearing public interest as well as the need for this Court to fully settle the issues raised in appeal as they are matters of national concern affecting revenue collection in the country. The 1st and 2nd Appellants also urge this Court to balance the rights of the applicants and respondents to a fair hearing vis-a-vis the need to expedite hearing of the consolidated Petitions; and
5.
Upon reading the submissions by Eliud Karanja Matindi, the 2nd Respondent herein, in support of the application and wherein he submits that allowing the application will ensure that the applicants have an opportunity to have their intended Petition of Appeal heard and determined on its merits. Conversely, a failure to grant the application will mean the intended appeal will be fatally compromised and the Applicants will have been condemned unheard. He anchors his submission on this Court’s decision in Deynes Muriithi & 4 Others v Law Society of Kenya & another [2016] eKLR where it was held that this Court has inherent jurisdiction to forestall an injustice, and in this context, the requirement that all parties are heard freely and fairly before a matter is concluded. The persuasive authority of the Court of Appeal in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR is also cited in support of this submission, where the Court reaffirmed the position that the right to fair hearing under Article 50 (1) of the Constitution as read with Article 25 cannot be limited; and
6.
Bearing in mind that this Court on 20th August 2024 issued orders which were to the effect that;
“
a.
conservatory order is hereby issued suspending and staying the declarations in Orders iii, iv, vi, vii & ix (i) issued in the Court of Appeal Judgement dated 31st July, 2024 in Civil Appeals No. E003, E016, Eo21, E049, E064 & E080 of 2024 (Consolidated) pending the hearing and determination of the consolidated appeal;
ii.
the consolidated appeal be set down for mention before the Deputy Registrar of the Court for purposes of ensuring compliance with earlier directions on filings.
iii.
The consolidated appeals shall be set for hearing- virtually- on 10th and 11th September 2024 at 9 a.m. each day”.
7.
Subsequent to the above orders, the Deputy Registrar of this Court, on 23rd August 2024, issued orders directing the parties to file their responses and cross- appeals in line with Order iii above and in the aforesaid directions, the Deputy Registrar declined to offer any advice to the applicants herein in relation to their notice of appeal upon considering the fact that the consolidated appeal had already been fixed for hearing on 10th and 11th September 2024. The said directions triggered the filing of the present Motion and with the above background in mind;","We now opine and determine as follows;
i.
Under Section 21 A of the Supreme Court Act as read with Rule 28 (5) of the Supreme Court Rules, and the guiding principles in Fredrick Otieno Outa vs Jared Odoyo Okello & 3 Others S.C. Petition No. 6 of 2014 [2017] eKLR this Court, may, upon application by a party, or on its own motion, review its own decision where: (a) the judgment, ruling, or order, was obtained, by fraud, deceit or misrepresentation of facts; (b) the judgment, ruling, or order, is a nullity by virtue of being made by a court which was not competent; (c) the Court was misled into giving judgment, ruling or order, under a belief that the parties had consented to the same; or (d) the judgment, ruling or order was rendered, on the basis of a repealed law, or as a result of a deliberate concealment of a statutory provision; and
ii.
Rule 3 of the Supreme Court Rules provides for the scope and objectives of the Supreme Court Rules and Rule 3 (5) specifically provides that;
“
(5)
Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders or give such directions as may be necessary for the ends of justice or to prevent abuse of the process of the Court”.
This Rule is pertinent and applicable to the present Motion for reasons to be detailed out below.
iii.
In the above context, this Court, in issuing its directions dated 20th August 2024, was cognisant of the time of filing of respective pleadings as anchored in Part IV of the Supreme Court Rules. Amongst the considerations made by the Court in fast tracking the matter is the public interest involved in the consolidated appeal and the fact that the Finance Act is a time bound statute. Indeed, in paragraph 20 of its decision the Court stated;
“
...Furthermore, balancing the loss and uncertainty which would be occasioned to the applicants as against the loss by the respondents and public, we find that public interest tilts in favour of granting conservatory and stay orders to preserve the substratum of the consolidated appeal and maintain stability in the budget and appropriation process pending the determination of this appeal. In addition, in view of the public interest in the matter, we direct that the consolidated appeal herein be set down for hearing within the shortest time possible after the delivery of this ruling.” [Emphasis added]
iv.
The subsequent directions by the Deputy Registrar dated 23rd August 2024 are therefore in conformity with the Ruling dated 20th August 2024 and we note that all parties including the applicants have partly complied with the said directions.
v.
Noting the Fredrick Outa decision and Rules 21A and 28(5) aforesaid, the applicants have not shown how the impugned directions were a nullity, or were obtained, by fraud, deceit or misrepresentation of facts. We also find that the applicants had, from the date of the Court of Appeal judgement i.e. 31st July 2024, sufficient time to file their appeal especially because of the public interest, sensitivity and urgency of the matters in dispute. The fact that the appellants filed their appeals with the said urgency and have complied with all the directions issued by this Court as have the applicants, means that the applicants could have similarly done so but for their own indolence.
vi.
The applicants’ plea that they are within the time for filing their appeal is negated by the fact that this Court has inherent jurisdiction to make such orders as would meet the ends of justice, the timelines set out in the Rules notwithstanding. We have also not been shown how our directions are capricious or injudicious.
vii.
It will be prejudicial to the appellants herein and all the close to fifty (50) other affected parties to allow the filing of a subsequent appeal in this matter at this stage as none has raised any issue with the fast tracking of the hearing of the consolidated appeal save the 2nd Respondent and for reasons set out above.
viii.
We further note that the issues raised by the applicants in their Notice of Appeal have already been canvassed by other parties in the consolidated appeal; for example, the 15th, 16th , 17th 18th and 19th respondents’ cross appeal advances the argument that the Court of Appeal erred in law when it failed to hold that the Act is a Bill concerning county governments and that the lack of concurrence between the Speaker of the Senate and the Speaker of the National Assembly before the introduction of the Finance Bill vitiated the constitutionality of the Act. We also note that the pith and substance test alongside all other related issues raised in the Notice of Appeal filed by the applicants on 20th August 2024 can be addressed in submissions as a matter of law without the filing of a fresh appeal. The only other issue that we see in the said Notice relevant to this Ruling is the question whether the Court of Appeal failed to grant appropriate reliefs pursuant to Articles 2(4) and 23(3) of the Constitution. Again, that issue is already germane to the determination of the consolidated appeal and we said so in our Ruling under attack. In effect, none of the five (5) issues in the applicants’ Notice of Appeal fall outside the existing appeal to warrant the filing of a separate appeal and in any event they all arise from the same judgment of the Court of Appeal that the appellants have challenged and can be raised in the context of submissions already filed by the parties.
ix.
In view of the foregoing we, find that the application does not fall within the parameters for review in the Fredrick Otieno Outa Case as set out above and must be therefore be dismissed.
x.
On costs, award of the same is discretionary and follows the principle set out by this Court in Jasbir Singh Rai & 3 other v. Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR that costs follow the event and that the Court may in appropriate cases exercise discretion and decide otherwise. We find that the application was not superfluous and that the applicants were endeavoring to exhaust every remedy to ventilate their case. In the circumstance, it will not serve the ends of justice to condemn the applicants to pay costs of the application.
7.
Consequently and for the reasons afore-stated, we make the following Orders:
i.
The Notice of Motion dated 29th August 2024 and filed on 30th August 2024 is hereby dismissed; and
ii.
There shall be no order as to costs.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/57/eng@2024-09-05
Election Petition (Application) E026 of 2023,Arale v Independent Electoral and Boundaries Commission & 4 others (Election Petition (Application) E026 of 2023) [2024] KESC 51 (KLR) (30 August 2024) (Ruling),Ruling,Supreme Court of Kenya,Supreme court,MK Ibrahim,30 August 2024,2024.0,Nairobi,Civil,"Ahmed Boray Arale vs The Independent Electoral and Boundaries Commission
, Abdibashir Ali Noor Ibrahim The Constituency Returning Officer Eldas Constituency, Maryan Hassan Mohamed The Deputy Constituency Returning Officer Eldas Constituency, Feisal Abdi Billow Presiding Officer Orote Polling Station, Adan Keynan Wehliye",[2024] KESC 51 (KLR),,"Representation:
Ms. Moturi for the Appellant/Respondent
(Ondieki, A. Hashi & Company Advocates)
Mr. Kibihi holding brief for Mr. Mwiti for the 1st to 4th Respondents/Applicants
(Mwiti & Partners Advocates, LLP)
1.
Upon perusing the Motion dated 4th December, 2023 by the 1st to 4th Respondents/Applicants (hereinafter referred to as “Applicants”), filed pursuant to Rules 60 and 62 of the Supreme Court Rules, 2020 in which the Applicants seek to have a single Judge review the decision of the Deputy Registrar dated 1st December, 2023 on their bill of costs concerning item 1 being the instruction fees; and either set it aside, issue direction for re-taxation or to tax it afresh; and
2.
Upon perusing the grounds on the face of the application, the supporting affidavit by Duncan Mwiti Kinyua, Counsel for the Applicants, sworn on 4th December, 2023 and submissions dated 5th November, 2023 contending that the Taxing Officer admitted as crucial evidence the instruction letter dated 31st August, 2023 disclosing the instruction fees between the 1st Applicant and its Advocate as a fee of Ksh 3,500,000/- but failed to consider the same in awarding the fees claimed by the Applicants without giving any justification; that in the consideration of the bill of costs, the Taxing Officer failed to consider the rejoinder submissions dated 22nd November, 2023 and further failed to give reasons as to how the low amount of Ksh 600,000/- was arrived at; that the Taxing Officer gave undue regard to the cost cap of Ksh 1,000,000/- by the High Court and consequently made an unreasonable consideration in arriving at a very low instruction fee of Ksh 600,000/-; that the Taxing Officer in considering the issue of novelty and complexity of the matter, held that with the matter having been settled by consent, there was no opportunity to consider these issues, then proceeded to award instruction fees without considering any other legal principles as enumerated in the Applicants’ rejoinder submissions dated 22nd November, 2023; and
3.
Upon perusing the response by the Appellant/Respondent (hereinafter referred to as “Respondent”) by way of replying affidavit sworn by Ahmed Boray Arale on 21st December, 2024 and submissions of even date contending that the application does not raise any grounds for the interference with the decision of the Taxing Officer; that the amount awarded by the Taxing Officer was reasonable and sound in regards to the principles of taxation especially in election petitions; the Taxing Officer in her ruling clearly stated that she had considered all submissions including the Applicants’ rejoinder submissions and the reasons for the award had been clearly stated in the ruling; the taxation process is a discretionary one and therefore the Taxing Officer was not bound by the amounts alleged in the letter of instruction dated 31st August, 2023 and in any case and as this Court held in Fredrick Otieno Outa v Jared Otieno Odoto & 3 Others SC Petition No 6 of 2014; [2023] KESC 75 (KLR), costs are not meant to punish an unsuccessful litigant or create a barrier to access to justice under Article 48 of the Constitution; that she had awarded costs having considered all the relevant principles of taxation including the public interest nature of the matter, the compromise reached by the parties, the lack of alleged novelty and complexity as the same was not heard and the capping of costs by the High Court in its Judgment dated 6th March, 2023 at a sum of Ksh 1,000,000/-; that the capping of costs was pursuant to Rule 30(1)(b) of the Elections (Parliamentary and County Elections) Petition Rules, 2017 and if the Applicants were dissatisfied with the decision to cap, they ought to have appealed the same, which they did not; and having considered the totality of the application, response and rival arguments by the parties, I now opine as follows:
4.
Guided by the provisions of Rule 60 of the Supreme Court Rules, 2020, the Registrar and by extension, courtesy of Section 2 of the Supreme Court Act, the Deputy Registrars, have the power to tax costs arising out of any proceedings between the parties. In the taxation exercise, the Registrar must adhere to the scale set out in the Third Schedule of the Supreme Court Rules on party and party costs and in particular Paragraph 9 on quantum of costs; while the jurisdiction of a single Judge is to entertain a reference made within seven days by a person who is dissatisfied with a decision of the Registrar in the taxing of costs.","This Court in the case of Fredrick Otieno Outa v Jared Otieno Odoto & 3 Others SC Petition No 6 of 2014; [2023] KESC 75 (KLR) highlighted the following principles to be considered in an application for setting aside a taxation decision:
“
(11)
A certificate of taxation will be set aside, and a single Judge can only interfere with the taxing officer’s decision on taxation if;
a.
there is an error of principle committed by the taxing officer;
b.
the fee awarded is shown to be manifestly excessive or is so high as to confine access to the court to the wealthy;(and I may add, conversely, if the award is so manifestly deficient as to amount to an injustice to one party).
c.
the court is satisfied that the successful litigant is entitled to fair reimbursement for the costs he has incurred, (and I may add, the award must not be regarded as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected by the other party); and
d.
the award proposed is so far as practicable, consistent with previous awards in similar cases.
To these general principles, I may add that;
i.
There is no mathematical formula to be used by the taxing officer to arrive at a precise figure because each case must be considered and decided on its own peculiar circumstances,
ii.
Although the taxing officer exercises unfettered judicial discretion in matters of taxation that discretion must be exercised judicially, not whimsically,
iii.
The single Judge will normally not interfere with the decision of the taxing officer merely because the Judge believes he would have awarded a different figure had he been in the taxing officer’s shoes.”
6.
Bearing these principles in mind, I note that the only item in contention is item no. 1 which was on the instruction fees. The Applicants had sought the instruction fees to be taxed at Ksh 3,500,000/- as per the instruction letter dated 31st August, 2023 between the Applicants and their Counsel on record. The Respondent on the other hand had proposed a figure of Ksh 600,000/-. The Taxing Officer expressed herself as follows in her consideration of item no. 1 on instruction fees before arriving at the sum of Ksh 600,000/-:
“7. It is acknowledged that the subject matter was of public interest and revolved around constitutional issues on election matters. However, the appeal was compromised through consent and, therefore, was not heard. Considering that novelty and complexity of the matter was not determined and given that costs were already capped at the High Court, I am of the view that the proposed amount of Ksh 3,500,000/- is excessive and unreasonable considering the range of costs already determined as reasonable in election petitions as cited in the case of Fredrick Otieno Outa v Jared Otieno Odoto & 3 Others (2017) e KLR. I find the sum of Ksh 600,000/- to be reasonable in the circumstances and award it accordingly under this heading and the balance taxed off.
7.
Guided by the multitude of decisions on costs of election petitions cited in the Ruling of Fredrick Otieno Outa v Jared Otieno Odoto & 3 Others SC Petition No 6 of 2014; [2023] KESC 75 (KLR), it is my considered view that the Taxing Officer properly set out her reasons for finding that the amount of Ksh 3,500,000/- was manifestly excessive. However, she failed to give the same due consideration in why the figure of Ksh 600,000/- was appropriate. Although taxation is not a mathematical exercise but a discretionary process, the Taxing Officer merely purported to pick the proposal by the Respondent mechanically. There has to be some justification for doing so.
8.
The Court recently restated in its decision in the case of Kenya Airports Authority v Otieno Ragot & Company Advocates, SC Petition No. E011 of 2024 delivered on 2nd August, 2024, that the fees allowed for instructions to appeal or to oppose an appeal is at the discretion of the taxing officer; and nonetheless the absolute least is that fees must be commensurate to work done, and it will amount to unjust enrichment if it is not awarded for this purpose. In any case, the Supreme Court Rules, 2020 at paragraph 9 (1) of the Third Schedule, peg this absolute least figure at Ksh 1,000/-.
9.
I take note that the substantive cause of action and genesis of the reference is an election petition for the election of the Member of the National Assembly, Eldas Constituency where both the Appellant and the 5th Respondent were contestants, with the 5th Respondent emerging victorious. The matter began at the High Court, progressed to the Court of Appeal to finally reach this Court through Petition of Appeal dated 31st August, 2023 and filed on 1st September, 2023; the High Court dismissed the Appellant’s Petition for failing to prove his allegations while the Court of Appeal struck out both the Notice of Appeal and Record of Appeal for being filed and served outside the prescribed timelines; while the main contestation before this Court revolved around the legal framework of electronic filing of election appeals and the enforcement of the filing timelines. Shortly after filing the appeal, the parties entered into a consent dated 14th September, 2023 which was adopted by the Court in an Order dated 15th September, 2023 officially withdrawing the appeal in less than a month from the date of filing. However, save for the 5th Respondent who chose not to pursue costs, the parties left the issue of costs of the appeal to the Court’s determination, with the Applicants filing their bill of costs dated 3rd October, 2023 for taxation claiming a total sum of Ksh 4,709,049/-.
10.
Having considered the history of the matter and the fact that the Petition of Appeal was short-lived before the Court, I also note the industry of the Applicants in filing their respective responses to the Petition of Appeal in the form of grounds of objection, written submissions as well an application to strike out the Appeal for want of jurisdiction. Taking that into account, alongside their Advocate’s attendance before the Court and the reasons I stated in the preceding paragraphs, I would be hesitant to interfere with the award of Kshs 600,000/- by the Taxing Officer, which in my opinion was commensurate to the work done and therefore a fair and reasonable award.
11.
On costs, the award of the same is discretionary and follows the principle set out by this court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. I exercise my discretion to order that each party shall bear its costs.
12.
Accordingly, and for the reasons aforestated, I disallow the Reference dated 4th December, 2023 and make the following orders:
i.
Notice of Motion dated 4th December, 2023 by the 1st to 4th Respondents/Applicants be and is hereby dismissed;
ii.
Item No. 1 on the instruction fees shall remain at Ksh 600,000/-; and
iii.
Parties shall bear their own costs.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/51/eng@2024-08-30
Petition (Application) E031 of 2024,Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Intended Amicus Curiae) (Petition (Application) E031 of 2024 & Petition E032 & E033 of 2024 (Consolidated)) [2024] KESC 55 (KLR) (30 August 2024) (Ruling),Consolidated,Supreme Court of Kenya,Supreme court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",30 August 2024,2024.0,Nairobi,Civil,Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others,[2024] KESC 55 (KLR),,"1.
Upon perusing the notice of motiondated and lodged before this courton August 22, 2024, by Gautam Bhatia seeking, orders inter alia that-
a.
Dr Gautam Bhatia, the applicant herein, be granted leave to be admitted in the Appeals as amicus curiae.
b.
Dr Gautam Bhatia, the applicantherein, be granted leave to present written and oral submissions by way of an Amicus brief in the Appeals.
c.
Upon granting leave to participate in the proceedings, the honourable courtgive directions on how the amicus curiae shall participate herein on such other or further directions as this honourable court may deem fit to give.
d.
There be no order on costs for or against the amicus curiae.
2.
Taking into account the affidavit in support of the motionsworn by Dr. Gautam Bhatia and his written submissions dated August 21, 2024to the effect that; the applicant is an expert in comparative constitutional law, and a practicing constitutional lawyer before the Supreme Court of India; he possesses and has demonstrated his scholarly expertise with regards to the questions that form the subject matter of the appeal, in particular the doctrine, history, practice and theory of public participation that will assist the court in answering the questions raised in the appeal; he is the author of The Transformative Constitution: A Radical Biography in Nine Acts, and of numerous scholarly articles in peer-reviewed comparative constitutional law journals; he has engaged with Kenyan constitutional law in a comparative context for some years and has been previously admitted as amicus curiae before this Court in Attorney-General and Others v David Ndii and Others [“the BBI Case”]; he is the author of Law Making, Political Process, and the State: Transformative Constitutionalism in Kenya – 2010 – 2025 (James Currey 2025, forthcoming), and of ‘The Hydra and the Sword: Constitutional Amendments, Political Process, and the BBI Case in Kenya’ (Global Constitutionalism 2025, forthcoming). In addition to his scholarly work, the applicant has also submitted that he has participated in legal proceedings involving the subject of public participation before the Supreme Court of India and the High Court of Bombay.
3.
Further, it has been submitted that the applicant is impartial, has no professional relationship with any of the parties involved in this appeal, nor does he have any personal or pecuniary interest in the appeal and its outcome. That, he only seeks to provide his scholarly expertise in the service of the Court on the questions raised in the appeal that are of great importance to the people and the future of the Republic of Kenya. Specifically, he has urged the point that, if admitted as amicus curiae, he will make submissions, subject to this court’s directions, on the following issues:
a.
Whether the national value of public participation entails an obligation upon State organs to give reasons in the event that they choose to reject the suggestions that have emanated from the public.
b.
If, after one round of public participation, a Bill is substantively amended by the National Assembly, whether there is an obligation to subject the amended provisions and/or new provisions to further public participation.","Noting that none of the parties in the consolidated appeals have opposed the application, We now opine and determineas follows;
i.
An applicant seeking to be enjoined as amicus curiae has to satisfy this Court that he or she has satisfied the legal requirements for such an application. In that context, rule 19 of the Supreme Court Rules 2020 provides that, before admitting a person as a friend of the court, this court has to consider the proven expertise of the person; independence and impartiality of the person; or the public interest involved.
ii.
The role of an amicus curiae in any proceedings is to aid a court in arriving at a legal, pragmatic and legitimate decision, anchored on the tenets of judicial duty and in Trusted Society of Human Rights Alliance v Mumo Matemu & 4 Others SC Petition No 12 of 2023, this Court set out the guiding principles for admission of an amicus curiae in the following terms:
“
....
i.
An amicus brief should be limited to legal arguments.
ii.
The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
iii.
An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tends to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay. The Court may therefore, and on a case- by- case basis, reject amicus briefs that do not comply with this principle.
iv.
An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law....”
iii.
Amongst the issues in dispute in the consolidated appeal are the place and extent of public participation in the legislative process; whether Parliament can amend bills after they have been subjected to public participation; the parameters and considerations of a declaration of the unconstitutionality of a statute; the orders to be issued upon such a declaration including whether to allow or disallow suspension or otherwise of the declaration to enable remedial action by the offending party.
iv.
Having considered the proposed amicus brief we note that the applicant has, with the necessary precision, set out germane points of law that he intends to address this court on and they clearly resonate with the issues in dispute in the consolidated appeal. We also perceive that the amicus brief will be of valuable assistance to this Court in addressing the issues raised in the consolidated appeal and that the applicant has demonstrated expertise in the field of comparative constitutional law which we find relevant to the appeal. We further note that none of the parties to the appeal has raised any issue of bias in the intended brief and we see none on our part and should any arise, we are quite capable of identifying and rejecting it as we make our final decision on the appeal. We therefore find that the Applicant has met the criteria set out in Mumo Matemu on admission of amicus curiae.
5.
Consequently and for the reasons afore-stated, we make the following Orders:
i.
The applicant’s notice of motion dated and filed on August 22, 2024 by the intended amicus curiae is allowed.
ii.
The amicus brief attached to the application is deemed as filed and the applicant shall not make oral submissions at the hearing of the petitions.
iii.
As the motion was not opposed, we make no orders as to costs.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/55/eng@2024-08-30
Petition E023 of 2023,Gatuma v Kenya Breweries Ltd & 3 others (Petition E023 of 2023) [2024] KESC 52 (KLR) (Civ) (30 August 2024) (Judgment),Judgment,Supreme Court of Kenya,Supreme court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko",30 August 2024,2024.0,Nairobi,Civil,"Symon Wairobi Gatuma and Kenya Breweries Ltd, East African Breweries Ltd, Kenya Maltings Ltd, East African Maltings Ltd
,",[2024] KESC 52 (KLR),,"A. Introduction
1.
This appeal is premised on Article 163 (4) (b) of the Constitution, and was filed pursuant to the leave issued by the Court of Appeal by its ruling dated 9th June 2023 certifying the appeal as one involving a matter of general public importance. The Court of Appeal in singling out the issues for determination did not delineate the questions of law but highlighted that the main issues revolve around the unilateral reduction of salary yet retaining the basic tenets of employment and whether it is fair labour practice to change terms of employment especially as refers to remuneration while retaining basic tenets of said employment.
B. Background
2.
The appellant was employed by the 1st respondent as an Artisan Grade F, attached to the engineering department in its malting unit, effective from 3rd November, 1986. On 23rd April 2003, he was informed that the 1st respondent had de-linked its malting operations from its beer business and subsequently, declared all positions in the malting unit redundant. In consequence, the 1st respondent offered the appellant a redundancy package totaling Kshs. 2,083,852/-. After statutory deductions, the take home amount was Kshs. 1,109,363/-. Two days later, the appellant received a letter of employment from the 3rd respondent offering him a permanent position as a Technical Operator in its production department.
3.
The appellant claims to have been taken advantage of due to the absence of his trade union representation, the Kenya Union of Commercial, Food & Allied Workers (KUCFAW), and that he was intimidated into signing the letter on April 28, 2003 which significantly reduced his gross salary from Kshs 66,064 to Kshs 29,665. He continued to earn the latter amount until May 31, 2009, when his position was once again declared redundant by 4th respondent. Consequently, he received a redundancy package based on the six years he had worked for the 3rd respondent. After his termination, the appellant felt he was treated unfairly by the respondents, prompting him to institute a suit before the Industrial Court.","F. Orders
88.
We make the following consequential Orders:
i.
The petition of appeal dated 9th August 2023 and lodged on 4th December 2023 is hereby dismissed
ii.
Each party to bear the costs of the Appeal.
iii.
We hereby direct that the sum of Kshs. 6,000/= deposited as security for costs in the appeal be refunded to the appellant.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/52/eng@2024-08-30
Application E016 of 2024,Gitson Energy Limited v Energy and Petroleum Regulatory Authority & 5 others (Application E016 of 2024) [2024] KESC 56 (KLR) (30 August 2024) (Ruling),Ruling,Supreme Court of Kenya,Supreme court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",31 August 2024,2024.0,Nairobi,Civil,Gitson Energy Limited v Energy and Petroleum Regulatory Authority & 5 others,[2024] KESC 56 (KLR),,"Representation:-
Ms. Ruth Kiunga for the applicant
(Theuri Wesonga & Company Advocates)
Mr. Maina for the 1st respondent
(Mwaura & Wachira Advocates)
Ms. Rael Muyoka for the 5th respondent
(Dr. Mutubwa Law)
1.
Upon perusing the Notice of Motion dated 25th March 2024 and filed on 30th April 2024, pursuant to Article 163(4)(b) of the Constitution, rule 15(2) of the Supreme Court Rules and other enabling provisions of law; seeking extension of time to file an appeal and record out of time against the ruling by the Court of Appeal (Tuiyot, Lesiit & Gatembu, JJ.A) in Civil Application No. E043 of 2022, and costs; and
2.
Upon considering the applicant’s grounds on the face of the application and affidavit sworn by James Gitau on 3rd April 2024, wherein it is contended that, even though the Notice of Appeal was filed within the prescribed time, the time to file an appeal and record has lapsed; the delay is excusable and not inordinate; the same was occasioned by the Court of Appeal’s failure to avail complete typed proceedings to the applicant; the request for typed proceedings was made on 12th February 2024 but the appellate court only furnished part of the relevant proceedings; despite several reminders and follow up, the Court of Appeal has failed to furnish the said proceedings; the appeal raises matters of general public importance warranting this Court’s determination; the application is brought without delay; and if granted would not be prejudicial to the respondents; and
3.
Upon further considering the applicant’s submissions dated 25th March 2024 and filed on 30th April 2024, wherein the applicant reiterates its grounds in support of the application and further submits that: the Court is clothed with the powers to extend time pursuant to Rule 15(2) of Supreme Court Rules, 2020; the application meets the principles for enlargement of time established in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others, SC Application No. 16 of 2014; [2014] eKLR (Nicholas Kiptoo Case); and the applicant has exercised all due diligence including numerous follow ups at the Court of Appeal, but to no avail. It relies on this Court’s decision in Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others, SC Application No. 15 of 2014; [2014] eKLR, to urge that it would not be in the interest of justice to turn away a party who, despite exercise of due diligence in pursuit of his cause, is impeded by the slow turning wheels of the court’s administrative machinery; and
4.
Having read and considered the 1st respondent’s Grounds of Opposition dated 15th May 2024 and 5th respondents Preliminary Objection dated 21st May 2024, wherein it is urged that the application is bad in law, inadmissible and incurably defective for want of certification as the application and intended appeal is premised on Article 163 (4) (b) of the Constitution, and for want of jurisdiction as the Court cannot entertain an appeal against an interlocutory ruling where the substantive issues are still pending before the superior courts; the notice of appeal having lapsed, the same stands withdrawn by dint of Rule 46(1) of the Court’s Rules; no appeal has been filed despite the mechanism under Rule 40 (1) (2) and (3) allowing an intending appellant to file its record with the exclusion of some documents; and without jurisdiction, the court cannot exercise its discretion under Rule 15 (2); and
5.
Upon noting the 1st respondent’s submissions dated 15th May 2024 and filed on 12th July 2024, re-emphasizing its grounds in support of the grounds of opposition, and in addition, urging that the application fails to meet the principles for extension of time laid down in the Nicholas Kiptoo Case. Moreover, the 1st respondent contends that this Court lacks jurisdiction on grounds that the intended appeal challenges a ruling by the Court of Appeal granted under Rule 5(2)(b) of the Court of Appeals Rules; the said ruling does not involve any matters of constitutional interpretation or application and the applicant has not sought nor has the appeal been certified as one involving matters of general public importance; and, as such the Court lacks jurisdiction both under Article 163(4)(a) and 163(4)(b) of the Constitution; and
6.
Upon further considering the 5th respondent’s submissions dated 21st May 2024 and filed on 22nd May 2024 restating its grounds in support of the preliminary objection, and further reiterating the arguments proffered by the 1st respondent; moreover, noting the 5th respondent’s case that the applicant is inviting the Court to sit on appeal against a Court of Appeal ruling under Rule 5(2)(b) of the Court of Appeal Rules, contrary to the principle established inter alia in Teachers Service Commission v. Kenya National Union of Teachers & 3 Others [2015] eKLR. It is further argued that in any event, typed proceedings are not among the mandatory documents that must accompany an appeal; under Rule 40 of the Court’s Rules, the applicant ought to have filed the record with the exclusion of unavailable typed proceedings; having failed to institute its appeal within the prescribed time, the notice of appeal was deemed withdrawn by dint of Rule 46(1); and the notice of appeal is a jurisdictional prerequisite; and
7.
Upon considering the applicant’s replying affidavit sworn on 31st May 2024 and further submissions in a rejoinder of even date, reiterating its arguments in support of the application, more so that it meets the criteria for extension of time under Rule 15 (2). Further, the applicant shifts its argument that the intended appeal only raises issues of general public importance under Article 163 (4) (b). Instead, it contends that the intended appeal also raises issues of constitutional interpretation and application, particularly of Articles 27, 43 and 47 under Article 163(4)(a). Furthermore, it urges that the notice of appeal cannot be deemed withdrawn, for reasons that it has proffered justifiable reasons for the applicant’s failure to file the appeal and record within the prescribed timelines; and in response to the argument that the application is lacking in form, it asserts that under Article 159(2)(d) procedural technicalities should not override substantive justice; and
8.
Cognisant of the fact that a preliminary objection has been raised by the 1st and 5th respondents, it is our considered view that the challenge of our jurisdiction goes to the competency of the instant application as well as the intended appeal. It is consequently apposite to determine the jurisdictional question in the first instance; and
9.
Bearing in mind that this Court has delineated with finality its jurisdiction to hear appeals emanating from interlocutory orders of the Court of Appeal made in exercise of its discretion under rule 5(2)(b) of the Court of Appeal Rules; specifically in Teachers Service Commission v. Kenya National Union of Teachers & 3 Others, SC Application No. 16 of 2015; [2015] eKLR wherein we stated;
“
The application before us contests the exercise of discretion by the appellate court, when there is neither an appeal, nor an intended appeal pending before this Court. Moreover, the appeal before the Court of Appeal is yet to be heard and determined. An application so tangential, cannot be predicated upon the terms of article 163 (4) (a) of the Constitution. Any square involvement of this Court, in such a context, would entail comments on the merits, being made prematurely on issues yet to be adjudged, at the Court of Appeal, …. Such an early involvement of this Court, in our opinion, would expose one of the parties to prejudice, with the danger of leading to an unjust outcome.
In these circumstances, we find that this court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under rule 5 (2) (b) of that Court’s Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court.”
10.
Appreciating that this principle is echoed in; Basil Criticos v. Independent Electoral and Boundaries Commission & 2 Others SC Petition No. 22 of 2015; [2015] eKLR; Clement Kungu Waibara v. Annie Wanjiku Kibeh & Another, SC Application No. 31 of 2020; [2020] eKLR; Bia Tosha Distributors Limited v. Kenya Breweries Limited & 6 Others, SC Application No. 10 of 2017 [2018] eKLR; and most recently in Sonko v. Clerk County Assembly of Nairobi City & 11 Others (Application 14 (E022) of 2021) [2021] KESC 14 (KLR).","We now opine as follows:
i.
Having considered the pleadings and submissions by the parties herein, we find that the substantive appeal before the Court of Appeal is yet to be heard and determined on the merits. The intended appeal emanates from an interlocutory ruling made pursuant to rule 5(2)(b) of the Court of Appeal Rules. The said Ruling entails no interpretation or application of the Constitution, nor can it be founded on any question of great public importance.
ii.
Guided by the principles established in the cited decisions, particularly, Teachers Service Commission v. Kenya National Union of Teachers & 3 Others [supra], we find that without a substantive determination, and in the absence of a judgment of the Court of Appeal in the appeal pending before it, this application and the intended appeal are premature and do not meet the threshold under Article 163 (4)(a) or (b) of the Constitution;
iii.
For the foregoing reasons, we hold that this Court lacks jurisdiction to entertain the application or the intended appeal.
12.
Consequently, we make the following Orders:
i.
The Notice of Motion dated 25th March 2024 and filed on 30th April 2024, is hereby dismissed.
ii.
The Costs of this application shall be borne by the applicant.
It is so Ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/56/eng@2024-08-30
Petition (Application) 18 (E025) of 2021,Judicial Service Commission v Oduor & 5 others (Petition (Application) 18 (E025) of 2021) [2024] KESC 53 (KLR) (30 August 2024) (Ruling),Ruling,Supreme Court of Kenya,Supreme court,"PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko",30 August 2024,2024.0,Nairobi,Civil,Judicial Service Commission v Oduor & 5 others,[2024] KESC 53 (KLR),,"Representation:
Mr. Bernard Ndeda, the applicant, appearing in person (C/O Billy Amendi & Co. Advocates)
Mr. Edwin Musyoka h/b for Mr. Charles Kanjama for the appellant (Muma & Kanjama Advocates)
Mr. Christopher Marwa for the 5th and 6th respondents
(Attorney General’s Chambers)
Non-appearance by the 1st, 2nd and 3rd respondents
1.
Bearing in mind that the 1st to 4th respondents, then serving magistrates, were vetted by the Judges and Magistrates Vetting Board (the Board) and found unsuitable to continue serving; and that the Board dismissed their request for review of its decision, and were consequently removed from office. In affirming the Board’s decision, the High Court ruled that courts lacked jurisdiction to review the vetting process unless the Board exceeded its constitutional mandate. On a first appeal, the Court of Appeal by a majority decision disagreed with the High Court and held that the Supreme Court in Judges and Magistrates Vetting Board and 2 Others vs. Centre for Human Rights and Democracy and 11 Others, SC Petition No.13A of 2013 as consolidated with Petition No.14 of 2013 and 15 of 2013; [2014] eKLR (‘JMVB (1)’) and in Judges and Magistrates Vetting Board vs. Kenya Magistrates and Judges Association & another, SC Petition No. 29 of 2014; [2014] eKLR (‘JMVB (2)’) had not conclusively settled the question of whether courts could review the Board’s decisions; that in the two cases the Supreme Court was concerned with the removal of a judge and not a magistrate. Ultimately, when the appellant (JSC) brought a second challenge to this Court in Judicial Service Commission vs. Oduor & 5 others, (Petition 18 (E025) of 2021) [2023] KESC 32 (KLR) (21 April 2023) (Judgment), the Court clarified in its judgment delivered on 21st April 2023, that its findings apply to magistrates, reaffirming that the Board's decisions are not subject to review by the High Court. Consequently, the decision of the Court of Appeal was set aside, and the High Court’s decision was affirmed thereby validating the removal from office of the applicant and 1st to 3rd respondents; and
2.
Upon reading the applicant’s present application, which is one of its kind since the establishment of this Court, and brought after the Court’s Registrar had advised him against approaching the Court by a letter in which he had sought a “tier 2 application/petition to this honourable court for criterion review either suo moto or as the Apex Court deems fit.” The application itself is strangely headed “Notice of Review/Reversal/Overturn”, dated 10th October 2023 and erroneously referred to, throughout the pleadings, as a Petition for Review. It is, in any event, expressed to be brought pursuant to Article 163(7) of the Constitution and Rule 28 (5) and (6) of the Supreme Court Rules, 2020 for orders, inter alia, that:
“
i.
The Judgment issued on 21st April 2023 in SC Petition No. 18 (E025) of 2021 (the judgment) is in error of law and in error of jurisdiction thus ripe for review;
ii.
A declaration be made that the judgment is rendered in error of construction and interpretation of Section 23(1)(2) of the Sixth Schedule, Section 22(4) of the Vetting of Judges and Magistrates Act, 2011 (VJMA) and Articles 163(7) and 165 of the Constitution;
iii.
A declaration that the judgment lacks the requisite legal legitimacy and validity as the bench intermeddled with the main transitional constitutional provision. The main source of vetting on jurisdictional mandate is already created, delineated and circumscribed on the effective date (sic);
iv.
A declaration that the denial or limitation or obstruction of jurisdiction under Section 23(2) of the sixth schedule, the main vetting clause, to any court to question in or review the final decision of the vetting board on the removal or process leading to removal of a judge from office applies to a judge only. To extend this limitation or ouster by courts or judges (JMBV I) to apply to magistrates is to act without jurisdiction;
v.
A review of the wrongful judgment by this Court to correct its own errors to conform with the rule of law and constitutionalism;
vi.
A declaration that Section 23(2) an ouster of jurisdiction is to all courts over a specific group, judges only but not magistrates and no court has discretion or authority to extend this constitutional transitional ouster to magistrates;
vii.
A declaration that Section 22(4) of the VJMA, a retrospective statutory law, cannot amend Section 23 of the Sixth Schedule to the Constitution;
viii.
That paragraph 70 of the judgment (which are the final orders), has occasioned a travesty of justice and the judgment is a nullity or voidable as its effect is to infringe on the constitutional rights and freedoms of the four magistrates”; and
3.
Upon considering the supporting affidavit sworn by Bernard Ndeda, the applicant, on 12th September 2023 together with his written submissions dated 3rd June 2024 to the effect that; upon delivery by this Court of its judgment on 21st April 2023, he was aggrieved and filed what he has described as “a two-tier rare and exceptional public interest review petition brought pursuant to Articles 37 and 163(7) of the Constitution on a novel approach only applied in a situation where it is the Supreme Court, in its normal discharge of duties, has infringed or contravened the Constitution to correct the errors of the Court”; that the first tier being a petition to the Legislature and the Speaker of the National Assembly to co- opt three other national institutions being the Chief Justice, the President of the Law Society of Kenya and the President of the Kenya Judges and Magistrates Association (KMJA) in order to review the decision of the Supreme Court made in excess of its jurisdiction; and the second tier being the one being pursued in the instant Motion, for the Supreme Court to review its own judgment; that both petitions were to run pari passu; that the first tier petition to the National Assembly having been rejected by the Clerk of the National Assembly for lack of jurisdiction, the applicant has elected to institute the instant Motion for this Court to review its judgment; and
4.
Noting the 15 grounds on the face of the application which can be summarized as follows: that the impugned judgment was delivered on 21st April 2023, being a public holiday, Idd ul fitr, therefore without jurisdiction; that it eroded the gains made in the case of ‘JMVB (2)’ which had allowed a review of the Board’s decision on the grounds that the Board did not operate within the provisions of Section 23 (1) and (2) of the Sixth Schedule to the Constitution and also because the Board improperly construed and interpreted Section 23 (1) and (2) of the Sixth Schedule to the Constitution; that in those circumstances, the judgment of this Court is ultra vires and ought to be reviewed ex debito justitiae, as it has divested and denied the four magistrates of their constitutionally guaranteed rights of review or appeal against the final decision of the Board; that the judgment failed to take into account applicable, relevant constitutional and transitional laws regarding the magistrates which are Section 23 (2) of the Sixth Schedule to the Constitution as read with Articles 165 (3)(c), 172 and 260 of the Constitution and as cross referenced with Article 262 and Section 7 of the Sixth Schedule in a holistic, purposive and harmonious manner as prescribed by the Constitution. Consequently, the applicant urges that, since this is a petition for reversal, the issues for determination remain the same as those in the original petition, again another alien proposition; and
5.
Upon reviewing the appellant’s (the JSC’s) grounds of opposition dated 24th June 2024 and submissions dated 28th June 2024 to the effect that; the application is filed belatedly, nearly 6 months after the date of delivery of judgment sought to be reviewed; this Court lacks the jurisdiction to determine the petition/application as framed because it is functus officio and lacks jurisdiction to sit on appeal on the issues it determined in respect of the applicability of Section 23 (2) of the Sixth Schedule of the Constitution to magistrates; the issues raised regarding the unconstitutionality of Section 22 (4) of the VJMA and misapplication of Articles 163(7) and 165 of the Constitution were not in issue before both superior courts below; the application does not demonstrate or establish any of the circumstances for the grant of a remedy of review of the judgment under Section 21A of the Supreme Court Act and as enunciated in the cases of Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai & 4 Others [2014] eKLR (Rai Case) and Fredrick Otieno Outa vs. Jared Odoyo Okello & 3 others [2017] eKLR (Outa Case); the application is a disguised appeal from the Court’s judgment and does not fall within the confines of review; that the application is an affront to the principle of finality of litigation, is defective, untenable, an afterthought, a gross abuse of the court process and should accordingly be dismissed; and
6.
Upon perusing the 5th and 6th respondents’ submissions dated 24th June 2024 to the effect that; the two-tier petition does not disclose any of the grounds for review under Section 21A of the Supreme Court Act or as expressed in the Outa Case rather, they are grounds of appeal on the merit of the impugned judgment and the court is being invited to sit on appeal of its own judgment; there are no compelling reasons to review the judgment; and that once a judgment is delivered, it can only be reviewed under the slip rule. For these reasons, they urge that the application be dismissed with costs to the 5th and 6th respondents; and
7.
Further noting the applicant’s rejoinder and supplementary submissions dated 27th June 2024 to the effect that; the application is not a second appeal or an application for the Court to sit on appeal on its prior decision; that the Rai and Outa Cases are distinguishable as they were litigated under Section 20(1) of the Supreme Court Rules, 2012 which have since been repealed by Section 28 (5) of the Supreme Court Rules; that the amendment now allows merit review as sine qua non; and that contrary to JSC’s and the 5th and 6th respondents’ assertions, the applicant has established valid grounds for review as envisioned in the Rai and Outa Cases; and
8.
Appreciating that under this Court’s Rules, a party can only file the following pleadings to move the Court, a petition, reference, originating motion or notice of motion. Therefore, the so-called “Notice of Review/Reversal/ Overturn” or “Tier-Two Review Petition” are unknown phenomena and procedures in this Court; and
9.
Taking into account the jurisdiction of this Court under Section 21A of the Supreme Court Act as well as Rule 28(5) of the Supreme Court Rules, 2020, together with the principles enunciated in the Outa Case, it is now firmly established that, as a general rule, the Supreme Court cannot sit on appeal over its own decisions, or review its decisions, save to correct obvious errors apparent on the face of the decision. However, in exercise of its inherent powers, the Court may, review its decision(s) in exceptional circumstances, so as to meet the ends of justice. It will only do so in instances where:
“
(i)
the Judgment, Ruling, or Order, is obtained, by fraud or deceit;
ii.
the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
iii.
the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;
iv.
the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.”; and
10.
In addition Rule 28(5) of the Supreme Court Rules stipulates that; “The Court may review any of its decisions in any circumstance which the Court considers meritorious, exceptional, and in the public interest, either on the Court’s own motion, or upon application by a party”.
11.
Having considered the application, affidavits and rival arguments summarized in the preceding paragraphs we now opine as follows:
i.
Apart from the fact that the application as filed is wanting in form, the reliefs it seeks are unavailable as they do not meet the criteria for review. Instead, going by the prayers and grounds on the face of the application, there is no doubt that the applicant has merely regurgitated the original petition hoping that the Court would arrive at a different conclusion. The applicant did not hide his conviction that what he had filed was a petition; he headed it as such and in the entire application he has repeatedly made reference to a petition.
ii.
Secondly, we note that the application was filed almost 6 months after the delivery of our judgment. Although Rule 28(5) of the Supreme Court Rules places no time within which an application for review must be brought, it is a principle of statutory and constitutional construction that where a law does not prescribe a particular time for performing an act, the act must nonetheless be done without unreasonable delay. It cannot be an open-ended thoroughfare. It must follow that an application for review must be brought within a reasonable time, determined on a case- by-case basis and delay in bringing an application for review must be explained to the satisfaction of the Court. The applicant has not offered any explanation for the delay.
iii.
On the merits of the application and applying the provisions of Section 21A of the Supreme Court Act as well as Rule 28(5) of the Supreme Court Rules, 2020, as interpreted in the Outa Case, we find that as framed and presented, the application falls short of the exceptional circumstances or public interest and therefore lacks merit.
iv.
Generally, when this Court gives a judgment in a case on merit, it becomes functus officio in relation to that judgment upon its pronouncement. An invitation to the Court to re-open the case must be founded on firm grounds. A strong case must be established based on the provisions of Section 21A of the Supreme Court Act and Rule 28(5) of the Supreme Court Rules, before the Court can consider reviewing its decision. It is not sufficient to merely allege fraud, incompetence, or deceit without giving the particulars thereon.
v.
It should be apparent from the provisions of Section 21A and Rule 28(5) aforesaid that the conditions precedent for review are extremely stringent and exceptional in terms because it is a serious matter to allege that a decision of this Court has been obtained by fraud or deceit; or that the Judgment, Ruling, or Order, is a nullity; or that the Court itself was not competent or was misled when it made the decision; or that the decision was rendered on the basis of a repealed law. Where these allegations are proved, the power of the Court in granting the relief of review is inherent.
vi.
The applicant has not only failed to meet the criteria for review but seems to have set out to re-litigate the very matters canvassed and determined on merit in the appeal, namely whether Section 23(2) of the Sixth Schedule to the Constitution applied to magistrates and whether in so far as it implicates the function of the Board in the vetting of judges and magistrates, it is subject to the review jurisdiction of the High Court. These questions, we reiterate were settled by this Court with finality not only in Judges and Magistrates Vetting Board and 2 Others vs. Centre for Human Rights and Democracy and 11 Others, SC Petition No.13A of 2013 as consolidated with Petition No.14 of 2013 and 15 of 2013 [2014] eKLR (‘JMVB (1)’) and in Judges and Magistrates Vetting Board vs. Kenya Magistrates and Judges Association & another, SC Petition No. 29 of 2014; [2014] eKLR (‘JMVB (2))’ but also in our judgment, the subject of this application.
vii.
Finally, the applicant challenged the validity of the judgment, arguing that it was delivered on a public holiday being Idd ul fitr. We wish to clarify that delivering a judgment on a public holiday does not invalidate the judgment. The essence of a decision is its content and the legal reasoning behind it, not the specific day on which it is delivered, especially when the same was delivered virtually, on email and not in open court.
viii.
For all the reasons proffered, we find no merit in the application, and we accordingly dismiss it.
ix.
As for the costs, we are guided as always by this Court’s pronouncement in Jasbir Singh Rai & 3 others vs. Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, that an award of costs is an exercise of judicial discretion. Taking into account the circumstances of this matter, we make no orders as to costs.","12.
Accordingly, we make the following Orders:
i.
The application dated 10th October 2023 is hereby dismissed.
ii.
There shall be no orders as to costs.
It is so ordered",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/53/eng@2024-08-30
Application E011 of 2024,Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited & another v Standard Chartered Financial Services Limited & another (Application E011 of 2024) [2024] KESC 49 (KLR) (Civ) (30 August 2024) (Ruling),Ruling,Supreme Court of Kenya,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",30 August 2024,2024.0,Nairobi,Civil,"Between
Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited
1st Applicant
Galot Industries Limited
2nd Applicant
and
Standard Chartered Financial Services Limited
1st Respondent
A.D. Gregory & C.D. Cahill
2nd Respondent",[2024] KESC 49 (KLR),,,"Orders
14.
Consequently, and for the reasons aforesaid, we make the following Orders:
a.
The Originating Motion dated 5th March 2024 is partly successful to the extent that the third question certified by the Court of Appeal as a matter of general public importance, to wit, Whether this Court can proceed to enter judgment on its own discernment and interpretation of a Record of Appeal which is inconsistent, illegible, incomplete and/or portions of the same are missing and whether an incomplete record of appeal which obscures evidence denies a party a right to fair hearing (as protected by Article 25 of the Constitution) and access to justice (as protected by Article 48) of the Constitution) is not a matter of general public importance. In the result this question is stuck off the record of issues to be determined by this Court.
b.
For the avoidance of doubt, we uphold the certification of and determination of the following two issues as matters of general public importance:
i.
Whether a financier holding securities in a charge or debenture is required to register fresh securities whenever a subsequent advance is made, even if the securities for the previous advances have not been discharged;
ii.
Whether there is a correlation between a security instrument drawn in favour of a lending institution, and the right of recovery under a facility advanced by the same lending institution. In particular, as submitted by the applicant, the Supreme Court will be called upon to determine whether a borrowing which has not been secured (whether as contemplated by the parties or otherwise) discharges a borrower from its obligation to repay a loan;
c.
The costs shall abide the outcome of the appeal.
Orders accordingly.",Certification allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/49/eng@2024-08-30
Petition (Application) E012 of 2024,Standard Chartered Financial Services Ltd v Manchester Outfitters (Suiting Division) Limited now called King Woolen Mills Ltd & 2 others (Petition (Application) E012 of 2024) [2024] KESC 50 (KLR) (30 August 2024) (Ruling),Ruling,Supreme Court of Kenya,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",30 August 2024,2024.0,Nairobi,Civil,"Standard Chartered Financial Services Ltd
Appellant
and
Manchester Outfitters (Suiting Division) Limited now called King Woolen Mills Ltd
1st Respondent
Galot Industries Ltd
2nd Respondent
AD Gregory & CD
3rd Respondent",[2024] KESC 50 (KLR),,"Representation:
Ms. Radhika Arora h/b for Mr. George Oraro, SC for the Appellant (Oraro & Company Advocates)
Mr. Philip Nyachoti for the 1st and 2nd Respondents (Nyachoti & Co. Advocates)
Mr. Chege for the 3rd Respondent (Amolo & Gachoka Advocates)
1.
Before this Court are three Motions, two of which have been filed by Standard Chartered Financial Services Limited (the Appellant) and the third by Manchester Outfitters (Suiting Division) Limited and Galot Industries Limited (the 1st and 2nd Respondents respectively).
2.
Noting the facts pertaining this matter as established by the superior courts below; that the Standard Chartered Merchant Bank Limited of London (SCMB) advanced 1,300,000 Deutschemarks and 1,050,000 Swiss Francs to the 1st Respondent vide a Euro-currency loan dated 22nd March 1982; that the 1st Respondent executed a debenture dated 5th April 1982 in favour of the Appellant who was its guarantor for the said loan; that on 7th October 1986, the 1st Respondent and Appellant ‘localized’ the Euro-currency loan to Kshs.9,000,000/= through a facility letter; that the Appellant advanced the Kshs.9,000,000/= to the 1st Respondent who in turn offset its dues to SCMB; that the 1st Respondent defaulted in repaying this loan to the Appellant and it (the Appellant) sought to recover a total of Kshs.19,024,522.05/= being the amounts owing to the Appellant by the 1st Respondent and hence appointed the 3rd Respondent as receiver and manager over the 1st Respondent’s assets; and
3.
Taking into account the High Court’s decision (Githinji, J. (as he then was)) in Manchester Outfitters (Suiting Division) Ltd. & Another v Standard Chartered Financial Services Ltd & Others, HCCC No. 5002 of 1990 wherein it was held that the debenture registered in 1982 was indeed valid for purposes of enforcing the localized agreement; equally, the appointment of the 3rd Respondent as receiver and manager of the 1st Respondent’s assets for the recovery of the amounts owing under the localization agreement was valid; and
4.
Cognisant that the Court of Appeal (Asike-Makhandia, Kantai & Nyamweya, JJ. A) in Manchester Outfitters (Suiting Division) Limited now called King Woollen Mills Limited & Another v Standard Chartered Financial Services Limited & Another, Civil Appeal No. 88 of 2000 overturned the High Court’s decision (Githinji, J. (as he then was)) in HCCC No. 5002 of 1990; that the Court of Appeal held that the debenture registered in 1982 between the Appellant and the 1st Respondent did not extend to the localization agreement executed in 1986 between the same parties; that consequently, the appointment of the 3rd Respondent as receiver and manager of the 1st Respondent’s assets was invalid and it was so declared; that the 1st Respondent was entitled to damages as sought in the re-amended plaint and the matter was referred to the High Court for assessment of damages. It is important to note at this juncture that in the course of the appeal before the Court of Appeal, the 3rd Respondent proceeded to sell the 1st Respondent’s assets; and
5.
Noting that subsequently, on 24th February 2024 vide Standard Chartered Financial Services Limited v Manchester Outfitters (Suiting Division) Limited now called King Woollen Mills Limited & 2 Others, Civil Application No. Sup. E001 of 2023, the Court of Appeal (Warsame, M’Inoti and Mativo, JJ. A) certified the following 3 issues as raising matters of general public importance:
a.
Whether a charge or debenture applies to future advances made between the same parties;
b.
The place of a lender in the face of an unsecured loan that has become due; and
c.
Whether the Court of Appeal can proceed to determine an appeal where the record is incomplete, illegible, faded and parts of it missing, contrary to the Court of Appeal Rules.
6.
Further noting that the parties, specifically, the Appellant and the 1st and 2nd Respondents, differed on whether the letter agreement dated 27th November 1981 formed part of the record before the superior courts below and whether it, in fact, was considered; that the parties continue to advance conflicting arguments as to whether the debenture executed on 5th April 1982 was a continuing security between the Appellant and the 1st Respondent; and
7.
Upon perusing the Notice of Motion dated 5th April 2024 brought under Articles 48, 50(1) of the Constitution of Kenya, Sections 3, 21 and 23A of the Supreme Court Act, Cap 9B of the Laws of Kenya and Rules 17, 31 and 32 of the Supreme Court Rules, 2020, wherein the Appellant seeks the following orders:
i.
Spent.
ii.
That pending the hearing and determination of the appeal in Petition No. E012 of 2024, this Honourable Court be pleased to issue an order of stay of execution of the judgment and order of the Court of Appeal dated 16th December 2022 in Nairobi Civil Appeal No. 88 of 2000- Manchester Outfitters (Suiting Division) Limited & Another v Standard Chartered Financial Services Limited & Others, together with any other consequential orders arising therefrom.
iii.
That pending the hearing and determination of the appeal in Petition No. E012 of 2023 (sic), this Honourable Court be pleased to stay any further proceedings (assessment of damages) before the High Court in HCCC No. 340 of 2006- Manchester Outfitters (Suiting Division) Limited now called King Woollen Mills Limited & Another v Standard Chartered Financial Services Limited & Others.
iv.
That the costs of this application be awarded to the Appellant herein; and
8.
Upon perusing the grounds in support of the application, the supporting affidavit and further affidavit sworn on 5th April 2024 and 18th April 2024 respectively, by Dr. Davidson Mwaisaka, the Head of Legal (Kenya & East Africa) of the Standard Chartered Group which group includes the Appellant, and the Appellant’s submissions of even date to the effect that the Appellant has lodged SC Petition No. E012 of 2024 challenging the Court of Appeal’s decision in Civil Appeal No. 88 of 2000; that in the meantime, the 1st and 2nd Respondents lodged Machakos ELC No. 94 of 2017, Galot Limited & Another v the Honourable the Attorney General & Another, wherein they seek orders nullifying the sale of L.R. Nos. 12867/1 and 128671/2 and for reversion of the said properties to the 1st and 2nd Respondents; that the 1st and 2nd Respondents have also commenced HCCC No. 340 of 2006 Manchester Outfitters (Suiting Division) now called King Woollen Mills Limited & Another v Standard Chartered Financial Services & Others for the assessment of damages wherein they seek the total sum of Kshs.33,940,614,490/= as the 1st Respondent’s asset valuation; that the application has met the 3-pronged test laid out in the case of Kombe Harrison Garama v Kenga Stanley Karisa & 3 Others, SC Application No. E028 of 2023; [2023] KESC 83 (KLR) that is, the appeal or intended appeal is arguable and not frivolous; unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory; and that it is in the public interest that the order of stay be granted; that the certification of 3 issues as raising matters of general public importance in Civil Application No. Sup. E001 of 2023 is testament to the appeal’s arguability; that the Appellant is apprehensive that, should the appeal be successful, the 1st and 2nd Respondents may not be in a position to refund the large sums of money claimed since they have not been a going concern from the year 1990; that they have an active dispute as to their rightful shareholders and directors and further, their assets are unknown; that in the absence of a stay order, the Appellant is likely to suffer a huge loss capable of bringing it to its knees and in this connection, it attached a Bank Supervision report by the Central Bank of Kenya to the effect that only 9 banks out of the 39 banks in Kenya have a capital base close to the damages sought by the 1st and 2nd Respondents; and
9.
Upon considering the 1st and 2nd Respondents’ replying affidavit sworn on 12th April 2024 by Mohan Galot who describes himself as the principal shareholder, governing director and chairman of the 1st and 2nd Respondents’ board of directors and exercising full management and control of the 1st and 2nd Respondents’ affairs, and the 1st and 2nd Respondents’ submissions of even date to the effect that the Appellant had failed to meet the test for grant of stay orders; that the judgment in Civil Appeal No. 88 of 2000 is not capable of execution and stay is not effective in the circumstances; that ELC No. 94 of 2017, which was previously Milimani HCCC No. 122 of 2008, was instituted in 2008 before the delivery of the Court of Appeal judgment and therefore, did not amount to execution; that in addition, there is a pending application for stay of proceedings in ELC No. 94 of 2017; that this Court can only stay further proceedings in the Court of Appeal and not in Milimani HC Commercial No. 340 of 2006 (formerly Milimani Civil Suit No. 5002 of 1990); that having caused the sale of the 1st Respondent’s assets and business, for which it was yet to render accounts, the Appellant had in effect fully recovered Kshs.19,024,522/= being the monies it claimed in its counter-claim in HCCC No. 5002 of 1990; that the 1st and 2nd Respondents had since filed SC Originating Motion No. E011 of 2024 Manchester Outfitters (Suiting Division) Ltd. now called King Woollen Mills Ltd. & Anor. v Standard Chartered Financial Services Ltd. & Anor. challenging the decision in Civil Application No. Sup. E001 of 2023 which ruling would affect the instant application; that given that HCCC No. 340 of 2006 was pending, the Appellant’s prayers were largely speculative and there are avenues open to the Appellant to seek recourse in the event of entry of any adverse orders in HCCC No. 340 of 2006; that the dispute relating to the 1st and 2nd Respondents’ directorship and/or shareholding is inconsequential and in any event, had been settled in Milimani HCCC No. 55 of 2012 Manchester Outfitters Limited v Pravin Galot & 4 Others; that the Appellant has not demonstrated that execution is imminent or that it would suffer substantial loss; that whilst citing the case of Edwin Harold Dayan Dande & 3 Others v The DPP & 2 Others, SC Petition 6 (E007), 4(E005) and 8(E010) of 2022 (Consolidated); [2023] KESC 40 (KLR), submitted that this Court does not have the power to halt further proceedings before the High Court; and
10.
Taking into account the 1st and 2nd Respondents’ application dated 11th April 2024 brought under Sections 3A, 21(1) and (2) of the Supreme Court Act and Rules 31(6), 40(1)(d), 65(1) and (2) of the Supreme Court Rules, wherein they seek the following orders:
a.
That the Record of Appeal dated 22nd March 2024 and filed in court on 25th March 2024 be struck out.
b.
That costs of this application be provided for.
11.
Further taking into account the grounds on the face of the application and the affidavit in support thereof and the further affidavit sworn on 11th April and 26th April 2024 respectively, by Mohan Galot, and their primary submissions and supplementary submissions dated 11th April and 26th April 2024 respectively, wherein they urge that the Appellant contravened Rules 38(2)(b) and 40(1)(d) of the Supreme Court Rules by deliberately omitting the following critical documents in the record of appeal:
a.
the 1st and 2nd Respondents’ supplementary record of appeal dated 24th February 2001,
b.
5 volumes of the entire High Court file in HCCC No. 5002 of 1990 filed in the Civil Appeal 188 of 2000,
c.
the orders and directions of the Court of Appeal issued on 9th December 2021, 17th February 2022, 12th May 2022 and 7th July 2022,
d.
the 1st and 2nd Respondents’ submissions dated 9th December 2020 and the digest of authorities thereto, the Appellant’s written submissions dated 12th February 2021 and the digest of authorities thereto and lastly, the 3rd Respondent’s written submissions dated 9th July 2021 and the digest of authorities thereto, to the 1st and 2nd Respondents’ utter prejudice and cited the case of Law Society of Kenya v The Centre for Human Rights Democracy & 12 Others, SC Petition No. 14 of 2013; [2014] eKLR in support of this position; that the 15-days’ statutory timeline for filing a supplementary record of appeal as provided for in Rule 40(4) of the Supreme Court Rules had since lapsed without any application from the Appellant for leave to file a supplementary record of appeal; that the failure to include all the relevant pleadings renders the record of appeal incomplete and incurably defective; that the omission was fatal and could not be saved under Article 159(2) of the Constitution and liable to be struck out and cited this Court’s decision in Erdemann Property Ltd. v Safaricom Staff Pension Scheme & 3 Others, SC Petition (Application) No. E013 of 2023; [2023] KESC 76 (KLR) in support; that without the complete record, this Court is handicapped in determining the appeal; that the appeal cannot stand in the absence of a record of appeal and should equally be struck out; and
12.
Noting the Appellant’s replying affidavit sworn on 22nd April 2024 by Dr. Davidson Mwaisaka and the submissions of even date urging that some of the documents identified by the 1st and 2nd Respondents as allegedly missing from the record of appeal are either actually part of the record of appeal, and if they are not, they are not relevant to the matters certified as being of general public importance; that in any event, the Appellant discharged its duty by writing to the Deputy Registrar of the Court of Appeal requesting for the proceedings and attaching those proceedings it received to the record of appeal and can therefore, not be faulted/ penalized and in support thereof, cited the case of Alfred Asidaga Mulima & 2 Others v The Hon. Attorney General & 8 Others, SC Petition (Application) No. 17 of 2019; while citing this Court’s decision in Arvind Shah & 7 Others v Mombasa Bricks & Tiles Limited, SC Petition (Application) No. 18 (E020 of 2022); [2023] KESC 28 (KLR), given that the appeal touches on matters of general public importance, it urged that any missing documentation would only speak to the facts of the case, which would equate to asking this Court to go beyond its jurisdiction and delve into the facts; that the 1st and 2nd Respondents have not demonstrated any prejudice they are likely to suffer should the appeal proceed on the basis of the record of appeal as filed; that relying on this Court’s decision in Sammy Kemboi Kipkeu v Bowen David Kangogo & 2 Others, SC Petition No. 23 of 2018; [2018] KESC 9 (KLR), it would be improper to strike out a record of appeal on account of failure to include non-mandatory documents in the record of appeal; that in any event, and citing the case of Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 Others, SC Petition (Application) No. 38 of 2018; [2019] KESC 42 (KLR), Rule 40(4) of the Supreme Court Rules accords a litigant a chance to seek leave to file a supplementary record of leave, which application the Appellant was amenable to filing; that the application was therefore, frivolous, an abuse of court process and meant to defeat the appeal; that Article 159(2)(d) of the Constitution calls upon this Court to administer justice without undue regard to technicalities; and
13.
Bearing in mind the Appellant’s second application dated 26th April 2024 (second application) brought under Articles 48, 50 and 159(2)(d) of the Constitution, Sections 3A and 21(2) of the Supreme Court Act and Rules 31 and 40(4) of the Supreme Court Rules, 2020 wherein it seeks the following principal orders:
i.
Spent
ii.
This Honourable Court be pleased to extend time for the filing of a Record of Appeal and grant leave to the Appellant to file a Supplementary Record of Appeal containing the following documents-
a.
The 1st and 2nd Respondent’s Supplementary Record of Appeal dated 24th February 2001 and filed in Civil Appeal No. 88 of 2000;
b.
The five (5) volumes containing copies of the High Court file in Milimani HCCC No. 5002 of 1990; and
c.
The Court of Appeal’s directions and transcribed copies of the handwritten notes of the Judges of the Court of Appeal in Civil Appeal No. 88 of 2000 dated 9th December 2021, 17th February 2022, 12th May 2022 and 7th July 2022.
iii.
The costs of this application be in the appeal.
14.
Further bearing in mind the grounds on the face of the application and the affidavit in support and further affidavit sworn on 26th April and 13th May 2024 respectively by Dr. Davidson Mwaisaka, and the submissions of even date wherein it is urged that the Appellant had filed a record of appeal that is compliant with Rule 40(1) of the Supreme Court Rules; that the Appellant had indeed deliberately failed to include some of the documents contested to be missing since they do not fall within the ambit of Rule 40(1) of the Supreme Court Rules; that while the omitted documents are not necessary for the determination of the appeal, nonetheless, the instant application was for purposes of filing a supplementary record of appeal in line with this Court’s decision in Surya Holdings Limited & 2 Others v CFC Stanbic Limited & Another, SC Petition No. 8 of 2019; [2020] KESC 2 (KLR), so as to afford the 1st and 2nd Respondents a chance to rely to the said documents, should they so wish; that no prejudice would be visited upon the Respondents, especially in view of the fact that 1st and 2nd Respondents were yet to file their submissions to the appeal; that the Appellant was amenable to the 1st and 2nd Respondents filing further and/or supplementary affidavits in view of the imminent supplementary record of appeal; that it was in line with the precepts of justice to allow the application in the terms sought; and
15.
Considering the 1st and 2nd Respondents’ replying affidavit sworn on 6th May 2024 by Mohan Galot and submissions of even date to the effect that the Appellant’s second application is incompetent (the reasons wherefore were not advanced in the affidavit); that the orders sought were discretionary and the Appellant was undeserving since it had deliberately failed to include the contested documents in the record of appeal and cited the Law Society of Kenya Case in support; that the Appellant’s deliberate failure was calculated to paint a picture that the Court of Appeal entered judgment on account of an incompetent record; that, citing the Sammy Kemboi Case, a pending application for striking out an appeal was not ground enough to file an application for leave to file a supplementary record of appeal; that in fact, the 1st and Respondents’ application to strike out both the petition and record of appeal ideally closed the door on the Appellant filing an application for leave to file a supplementary record of appeal; that in order to properly interrogate whether the Court of Appeal proceeded to render judgment on the basis of an incomplete record, the Appellant was duty-bound to indeed file the entire record of the proceedings in the superior court below; that the application was meant to defeat the 1st and 2nd Respondents’ application dated 11th April 2024; and
16.
Having considered the totality of the applications, the responses and submissions put forth, we now opine as follows:
a.
Sections 3A and 21 of the Supreme Court Act, empower this Court to grant such orders as are necessary for the administration of justice, including orders of stay of execution of a superior court’s judgment. This jurisdiction was restated in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, SC Application No. 5 of 2014; [2014] eKLR. The parameters for granting stay of execution pending appeal were set also out in Board of Governors, Moi High School, Kabarak & Another v Bell Bell & 2 Others, SC Petition Nos. 6 & 7 of 2013 & Civil Application Nos. 12 & 13 of 2012 (Consolidated); [2013] KESC 12 (KLR), as follows:
i.
The appeal or intended appeal is arguable and not frivolous;
ii.
Unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory; and
iii.
It is in the public interest that the order of stay be granted.
b.
We note that the Court of Appeal certified the matter and dispute between the parties herein as raising matters of general public importance. We further note that the 1st and 2nd Respondents separately challenged the certification and by a separate Ruling delivered at the same time as this one, we have found that the matter indeed raises matters of general public importance. In the circumstances, we find that the appeal is indeed not frivolous.
c.
On whether the appeal will be rendered nugatory, we note that the Appellant spoke to the 1st and 2nd Respondents’ inability to refund the monies sought in the event the appeal is successful. The 1st and 2nd Respondents urged that the stalemate on its directorship/shareholding had since been resolved. However, we note that the 1st and 2nd Respondents did not indicate that they would be able to repay sum claimed by the Appellant should the appeal be successful neither did they advance evidence to this end.
d.
It is uncontested that proceedings for the assessment of damages have commenced in HCCC No. 340 of 2006. The damages sought by the 1st and 2nd Respondents are indeed colossal and the High Court will ultimately determine whether the same are founded or not. Taking into account that one of the issues before this Court is whether the referral of the matter back to the High Court for assessment was proper, it follows that it would be in the interests of justice and public policy to save precious judicial time and stay those proceedings. In addition, and out of abundance of caution, the proceedings in ELC No. 94 of 2017 are hereby stayed pending the hearing and determination of SC Petition No. E012 of 2024 given that the transfer of L.R. Nos. 12867/1 and 128671/2 will be directly affected by the final decision in the appeal before this Court.
e.
With regard to the 1st and 2nd Respondents’ application wherein they seek to strike out the record of appeal and the appeal, we have considered and appreciated the tenor of Rule 40 of the Supreme Court Rules. Indeed, it behoves the Appellant to ensure that the record of appeal before the Court contains all the relevant pleadings necessary to enable this Court discharge its mandate. The rule specifically provides for the following critical documents:
a)
a certificate certifying the matter as of general public importance, b) the judgment or ruling of the Court of Appeal being appealed from, and c) a judgment or ruling of the High Court or a court of equal status. Notably, there is no contest that these 3 documents have been filed. The last document according to the Rule 40 is d) the relevant pleadings required to determine the appeal. See The Law Society of Kenya Case.
f.
A record of appeal that does not comply with these parameters would impede on this Court’s mandate to efficiently discharge justice. The Kenya Revenue Case is distinguishable from the case herein since in that case, the Appellant was aware that the record of appeal was incomplete but chose not to rectify the anomaly.
g.
Having found as above, are the documents alleged to be missing so vital that the record of appeal ought to be regarded as incomplete? We think not. Black’s Law Dictionary, 9th Edition defines a pleading as a formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials or defences. Submissions support the pleadings and elaborate the facts and evidence. However, they in themselves are not pleadings. In any event, in their judgments, the superior courts below, summarized the proceedings and the parties’ submissions. We therefore find and hold that we have sufficient information before us for a judicious consideration of the appeal before us. In any event, we accept and have confirmed the Appellant’s explanation that the submissions in question are indeed part of the record of appeal.
h.
As regards the supplementary record of appeal and the 5 volumes in HCCC No. 5002 of 1990, in its judgment, the Court of Appeal summarized the relevant events, directions and orders that culminated to its final judgment delivered on 9th December 2022. We have considered the 1st and 2nd Respondents’ affidavits containing the said supplementary record of appeal. To our minds, the same constitutes the record before the High Court in HCCC No. 5002 of 1990. We have the record of appeal in Civil Appeal No. 88 of 2000. Rule 89 of the Court of Appeal Rules 2022 provides for the documents that must form the record of appeal. Among these documents are the pleadings, trial judge’s notes, documents put in evidence at the hearing before the superior court below (High Court) among others. There is no contention or indication that there is any document that has been left out and there is no doubt that the record of appeal filed in the Court of Appeal contains the pleadings and evidence adduced before the High Court. We therefore find and hold that the supplementary record of appeal as postulated is not necessary in the circumstances.
i.
Inarguably, the 15-day statutory timeline to file a supplementary record of appeal has lapsed. However, we note that the Appellant has since sought to rectify the situation by seeking leave to file a supplementary record of appeal that includes the documents alleged to be critical but missing from the record, vide an application dated 26th April 2024. See the Hamida Yuri Case. To our minds, an existing application for striking out does not in itself bar a litigant from rectifying an anomaly that has come to its attention, especially in a case of general public importance, like the one before us. Such a blanket finding contravenes the dictates of justice. We decline the 1st and 2nd Respondents’ argument on this ground.
j.
However, in view of our finding herein above to the extent that none of the documents alleged to be missing is vital to the determination of the appeal before us, it follows that the Appellant’s application for leave to file a supplementary record of appeal must fail.
17.
In line with our decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition Application No. 4 of 2012; [2014] eKLR, that the award of costs is ultimately a question of judicial discretion, the order that commends itself to us is that each party shall bear its own costs.","18.
Accordingly, and for the reasons afore-stated, we make the following Orders:
i.
The Appellant’s application dated 5th April, 2024 is hereby allowed to the extent that the execution of the Court of Appeal’s judgment in Civil Appeal No. 88 of 2000 is hereby stayed pending the hearing and determination of SC Petition E012 of 2024. For the avoidance of doubt, the proceedings in Milimani HCCC No. 340 of 2006 and Machakos ELC No. 94 of 2017 are hereby stayed pending the hearing and determination of SC Petition E012 of 2024.
ii.
The 1st and 2nd Respondents’ application dated 11th April, 2024 seeking to strike out the Appellant’s record of appeal is hereby dismissed.
iii.
The Appellant’s application dated 26th April, 2024 seeking leave to file a supplementary record of appeal is hereby dismissed.
iv.
Each party shall bear its costs of the applications.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/50/eng@2024-08-30
Application E012 of 2024,TMG & another v AP (Application E012 of 2024) [2024] KESC 48 (KLR) (30 August 2024) (Ruling),Ruling,Supreme Court of Kenya,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, W Ouko",30 August 2024,2024.0,Nairobi,Civil,"TMG
1st Applicant
QFG (A Minor Suing Through His Mother and Next Friend TMG)
2nd Applicant
and
AP
Respondent",[2024] KESC 48 (KLR),,"Brief facts
The 1st applicant and RAP (P) celebrating a monogamous marriage before the Registrar of Marriages; on March 19, 2003. P left for the United States on the very same day and never returned; the 1st applicant commenced divorce proceedings seeking nullification of the marriage on the ground that the marriage was not consummated, which proceedings were still pending before the Kilifi Chief Magistrate’s Court. The 1st applicant was blessed with a minor (2nd applicant) on November 15, 2005 from a different relationship; thereafter, the 1st applicant and the respondent began an intimate relationship in 2008. They lived together in a house in Mtwapa, which was jointly registered in their names. After selling that property and sharing the proceeds, the respondent purchased another property, referred to as the suit property, in Shanzu in 2011 and constructed a residential house on it. The applicants, including QFG (the 2nd applicant, a minor), moved into the suit property in 2014.
In 2016, the relationship ended, and the respondent served the 1st applicant with a notice to vacate the suit property. The 1st applicant filed a suit in the High Court claiming an equitable interest in the property, arguing that they lived as husband and wife and that the respondent had assumed parental responsibility over the 2nd applicant. The respondent denied the claims, stating that he purchased the suit property for resale and allowed the applicants to stay temporarily while the 1st applicant arranged for her own residence. He also argued that the 1st applicant's prior marriage to another man was still legally valid, thereby precluding any presumption of marriage.
The High Court found that no valid marriage existed between the 1st applicant and the respondent due to the 1st applicant's subsisting marriage. Consequently, the court ruled that the suit property was not matrimonial property and dismissed the applicants’ claims. The Court of Appeal upheld that decision and refused to certify the case for appeal to the Supreme Court, stating it did not raise issues of general public importance. The applicants then sought a review of the decision in the Supreme Court, arguing that their case raised significant issues regarding evolving societal norms and property rights in cohabitation arrangements.","11.
Upon deliberations on the Motion and the rival arguments, we opine as follows:
i.
It is trite that a matter(s) of general public importance which would warrant the exercise of this court’s appellate jurisdiction under article 163(4)(b) of the Constitution should transcend the dispute between the parties, and have a significant bearing upon public interest. Further, the onus lies with the applicants to demonstrate that the matter in question carries specific elements of real public interest and concern.
ii.
We cannot help but note that the applicants did not concisely set out the issues they deem are of general public importance in their Motion. Rather, they set out the issues in their written submissions. This Court has time and time again underscored the requirement and necessity of an intended appellant(s) to concisely set out the issues deemed to be of general importance as appreciated in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (Supra). In short, the delineated issues form the basis upon which both the Court of Appeal and this Court determine whether indeed an intended appeal raises issues of general public importance which warrant this Court’s consideration. Therefore, we find that for proper order and notice to the other parties, an intended appellant, like the applicants, should concisely delineate the issue(s) of general public importance he/she deems arises from an impugned decision of the Court of Appeal not only in a Motion seeking certification but also in the instant Motion seeking review of the decision of the Court of Appeal declining such certification. Be that as it may, do the issues set out in the applicants’ written submissions constitute issues of general public importance?
iii.
The applicants’ contention is that the superior courts below erred by finding that the 1st applicant and respondent’s relationship was not a marriage simply because her marriage with P had not been nullified. We understand the applicants to argue that the superior courts below had failed to take into account that society has since accepted such relationships which they termed as “unconventional” relationships as giving rise to valid unions/marriages.
iv.
To begin with the applicants have not demonstrated that there is any lacuna or inconsistency with regard to what constitutes a valid marriage. In point of fact, as correctly observed by the superior courts below, the Marriage Act (cap 150 Laws of Kenya) is clear on this issue. In particular Section 3(1) of the Act defines a marriage as, “… a voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with the Act”. Section 9(a) thereof provides that-
“
9.
Subject to section 8, a married person shall not, while —
a.
in a monogamous marriage, contract another marriage; …”
Likewise, Section 11(1)(c) expressly speaks to the relationship between the 1st applicant and the respondent in the following manner:
11.
Void marriages
1.
A union is not a marriage if at the time of the making of the union—
a.
either party is incompetent to marry by reason of a subsisting marriage; …”
v.
It is common ground that the applicants claim to the suit property was anchored on the contention that it was the matrimonial home. Similarly, the superior courts below found that the law is clear as to what constitutes a matrimonial home. In that regard, the courts found that since no marriage could be presumed between the 1st applicant and the respondent, it followed that the suit property was not matrimonial property. The Matrimonial Property Act (cap 152 Laws of Kenya) is quite explicit on what constitutes a matrimonial home. Section 2 thereof defines matrimonial home as follows:
“
‘matrimonial home’ means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property; …”
The said interpretive section also defines a spouse as –
“
‘spouse’ means a husband or a wife; …”
vi.
Looking at the issues that were before the superior courts below, we note that, as the Court of Appeal correctly observed, issues relating to violation of the applicants’ constitutional rights were never subject of the litigation before the said courts. Therefore, such issues cannot be raised for the first time at the point of seeking certification as appreciated in Thika Coffee Mills v Rwama Farmers’ Co-operative Society Limited (Application 11 of 2020) [2020] KESC 17 (KLR). Moreover, allegations of the violation of Articles 28, 40 and 53(3) were not even raised by the applicants in their Motion seeking certification before the Court of Appeal. This court in Wandabusi & another v Attorney General for and on behalf of the Commissioner for Lands & 3 others (Originating Motion 23 of 2017) [2019] KESC 4 (KLR) held that an intended appellant cannot introduce new issues in a Motion seeking review of the Court of Appeal’s decision declining certification, when such issues had not been raised in the Motion for certification before the Court of Appeal.
vii.
In totality, we find that the instant Motion has fallen short of demonstrating to our satisfaction beyond a mere restatement that the intended appeal raises issues of general public importance. It is apparent that the intended appeal seeks to secure an interpretation of the law in the context of the peculiar facts of this case, which is beyond this Court’s appellate jurisdiction under article 163(4)(b) of the Constitution. Therefore, we find the instant Motion lacks merit and is hereby dismissed.
viii.
Taking into account the nature of this matter and this Court’s decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, we deem it just to order that each party bears his/her own costs.
12.
Consequently and for the reasons afore-stated, we make the following Orders:
i.
The Originating Motion dated March 8, 2024 and filed on April 26, 2024 is hereby dismissed.
ii.
Each party shall bear his/her own costs.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/48/eng@2024-08-30
Petition (Application) 26 (E029) of 2022,Trattoria Limited v Maina & 3 others (Petition (Application) 26 (E029) of 2022) [2024] KESC 54 (KLR) (30 August 2024) (Ruling),Ruling,Supreme Court of Kenya,Supreme Court,"MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko",30 August 2024,2024.0,Nairobi,Civil,"Trattoria Limited
Appellant
and
Joaninah Wanjiku Maina
1st Respondent
County Government of Nairobi
2nd Respondent
Director of Public Prosecutions
3rd Respondent
Inspector General of Police
4th Respondent",[2024] KESC 54 (KLR),,"1.
Cognizant that by a ruling dated November 25, 2022, this court dismissed the appellant’s appeal since it did not disclose a question touching on the interpretation and application of the Constitution; that contemporaneously, the court found that it lacked jurisdiction to entertain the application and the appeal; that ultimately, the court made the following orders:
a.
The notice of motion dated September 9, 2022 is hereby dismissed.
b.
The petition of appealdated September 5, 2022 is hereby struck out for want of jurisdiction.
c.
The applicant shall bear the costs of this application.
2.
Further cognizant that the 1st respondent filed her party and party bill of costs dated August 7, 2023 wherein she claimed Kshs 2,344,292 against the appellant; that by a ruling dated December 15, 2023, the Deputy Registrar declined to assess the costs of the appeal as the same were not awarded by the court, and hence taxed the bill of costs at Kshs 17,500; that dissatisfied with the same, the 1st respondent/applicant filed the instant application on 5th April 2024; and
3.
Upon perusing the notice of motion by the 1st respondent/applicant dated March 27, 2024, filed pursuant to section 21A of the Supreme Court Act, cap 9B of the Laws of Kenya and all other enabling provisions of the law seeking the following orders:
a.
That this honourable court be pleased to review its Ruling dated 25th November 2022 delivered by Honourable Justices of the Supreme Court; Honourable Deputy Chief Justice and Vice President of the Supreme Court, Honourable Lady Justice Philomena M Mwilu, Honourable Justice Smokin Wanjala, Honourable Lady Justice Njoki Ndung’u, Honourable Justice Lenaola, and Honourable Justice W Ouko in Petition No 26 (E029) of 2022.
b.
That this honourable court award the costs of this Petition to the 1st respondent against the appellant.
c.
That costs of this application be awarded to the 1st respondent; and
4.
Upon perusing the grounds on the face of the application and the supporting affidavit and further affidavit sworn by the 1st respondent/applicant on March 27, 2024 and May 24, 2024, respectively, and the submissions and further submissions dated March 27, 2024 and June 5, 2024, respectively, to the effect that by a ruling dated November 25, 2022, this court dismissed both the appeal dated September 5, 2022 and the appellant’s application dated September 9, 2022 seeking stay of execution of the orders of the High Court (Mativo, J) in High Court Petition No 132 of 2014 as consolidated with Petition No 129 of 2014; that the court condemned the appellant/Respondent to bear the costs of the application but inadvertently failed to make orders as to the costs of the substantive appeal; that costs follow the event and being the successful party, the 1st respondent/applicant is entitled to costs of the appeal and relied on the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition No 4 of 2012; [2014] eKLR in support of that submission; that the application meets the test set out in the case of Fredrick Otieno Outa v Okello & 3 Others, SC Petition No 6 of 2014; [2017] KESC 25 (KLR); that the error in question is clerical arising from an omission which deviates from the full meaning or intention of the court’s decision; that notably, the 1st respondent/applicant only relied on section 21(4) of the Supreme Court Act in her supplementary affidavit; and
5.
Taking Into accountthe appellant/respondent’s replying affidavit sworn by its director, Gaetano Ruffo, on April 24, 2024and submissions of similar date to the effect that the application lacks merit since it does not meet the conditions set out in section 21A of the Supreme Court Act and in Kaluma v NGO Co-ordination Board & 5 Others, SC Civil Application No E011 of 2023; [2023] KESC 72 (KLR); that the application was filed after inordinate delay (15 months after the delivery of the subject ruling); that the award of costs is a discretionary matter as was held in the Jasbir Singh Rai case and failure to award the same is not a ground for review neither was it an oversight or a clerical error or error apparent on the face of the record; and
6.
Appreciating that the 2nd, 3rd and 4th respondents did not participate in these proceedings despite being served with the application; and","Having considered the application, response and submissions before us, we now opine as follows:
i.
It is a well-established principle that this court can only review its decision(s) in the manner prescribed in the Fredrick Outa Case (supra) and section 21A of the Supreme Court Act, which section provides as follows:
The Supreme Court may review its own decisions, either on its own motion, or upon application by a party in any of the following circumstances-
i.
where the judgment, ruling or order was obtained through fraud, deceit or misrepresentation of facts;
ii.
where the judgment, ruling or order is a nullity by virtue of being made by a court which was not competent;
iii.
where the court was misled into giving a judgment, ruling or order under the belief that the parties have consented; or
iv.
where the judgment, ruling or order was rendered on the basis of repealed law; or as a result of a deliberate concealment of a statutory provision.
ii.
The 1st respondent/applicant premises her application on the fact that despite being the successful party in the appeal, she was not awarded the costs of the appeal. She classifies this failure as ‘… an oversight, clerical error or an error, as costs follow the event…”.
iii.
Applying the above principles to the instant case, it is our view that the 1st respondent/applicant has not demonstrated that the subject ruling was obtained through fraud, deceit, or misrepresentation of facts; neither has she claimed or established that the court was not competent to render the said ruling. She has also not claimed nor established that the court was beguiled into believing that there existed a consent between the parties; and lastly, she has not claimed or established that the ruling was rendered on the basis of repealed law or on account of a deliberate concealment of a statutory provision.
iv.
Consequently, it is our considered view that the application dated 27th March 2024 does not fall within the parameters enunciated in the Fredrick Outa Case and section 21A of the Supreme Court Act.
v.
Notwithstanding the above findings, sections 21(4) and 21A of the Supreme Court Act speak to two very different jurisdictions. See para. 5(iv) in Mbugua & Another (Suing as the Administrators of the Estate of Joseph Kiarie Mbugua & Another) vs Timber Manufacturers & Dealers Limited, SC Civil Application No. E019 of 2023; [2023] KESC 86 (KLR).
vi.
Section 21(4) of the Supreme Court Act reads:
The court may, on its own motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order and such correction shall constitute part of the judgment, ruling or order of the court.
vii.
Rule 28(5) of the Supreme Court Rules on the other hand reads:
(5)
The court may review any of its decisions in any circumstance which the court considers meritorious, exceptional, and in the public interest, either on the court’s own motion, or upon application by a party.
viii.
The former is what is commonly referred to as the slip rule, where this court can correct errors apparent on the face of the judgment, ruling or order of the court and where such correction is obvious and does not generate any controversy on the decision of the court. In the Fredrick Outa case (supra), we held that “… In other words, the Slip Rule does not confer upon a court, any jurisdiction or powers to sit on appeal over its own Judgment, or, to extensively review such Judgment as to substantially alter it.” We also held that under the slip rule, the correction should be seen to steer a Judgment, decision or Order of this court towards a logical, or clerical perfection. It, however, should not change the substance of the Judgment or alter the clear intention of the court.
ix.
Notably, a clerical error is an issue that falls squarely under the slip rule. Looking at the 1st respondent/applicant’s application therefore, despite citing section 21A of the Supreme Court Act, the grounds thereof align with section 21(4) of the Act.
x.
In addition, like in the case of Cogno Ventures Limited & 4 Others vs Bia Tosha Distributors Limited & 15 Others; Kenya Breweries Limited & 6 Others (interested parties); Ferran & 24 Others (Contemnor), SC Application Nos. E005, E006 & E012 of 2023 (Consolidated)); [2023] KESC 33 (KLR),and Musembi & 13 Others (Suing on their own behalf and on behalf of 15 residents of Upendo City Cotton Village at South C Ward, Nairobi) vs Moi Educational Centre Co. Ltd. & 3 Others, SC Application No. E019 of 2021; [2022] KESC 19 (KLR), we shall invoke our jurisdiction under section 21(4) of the Supreme Court Act as read with Rule 28(5) of the Supreme Court Rules and shall proceed to clarify the court’s intention on the award costs of the appeal in its Ruling dated November 25, 2022 so as to steer this court’s ruling towards logical perfection.
xi.
In the Jasbir Singh Rai case (supra), we held in paragraph 8 that, while the general rule is that costs follow the event, this court is not bound to adhere to it. In support thereof, we relied on section 21(2) of the Supreme Court Act which reads:
In any proceedings, the Supreme Court may make any ancillary or interlocutory orders, including any orders as to costs as it thinks fit to award.
We also relied on rule 3(5) of the Supreme Court Rules 2020 which reads:
Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the courtto make such orders or give directions as may be necessary for the ends of justice or to prevent abuse of the process of the court.
xii.
We further emphasized that this courtmaintains an open-ended mandate in the invocation of discretion to ensure that the ends of justice are met, much like section 27(1) of the Civil Procedure Act, cap 21 of the Laws of Kenya which provides, inter alia, that the award of costs shall remain at the discretion of the court or judge. Further, Halsbury’s Laws of England, 4th Ed. Re-Issue (2010) Vol 10, para 16 also provides that costs lie at the court’s discretion, including, but not limited to, whether to award costs or not, and no party has a right as to costs unless and until the court awards them. Of course, this discretion, ought to be exercised judiciously and not arbitrarily.
xiii.
As noted elsewhere in this ruling, the court retains the discretion to award costs and in that context, we dismissed the appellant/respondent’s appeal because it did not raise any questions that involved the interpretation and application of the Constitution and had improperly invoked this court’s jurisdiction under article 163(4)(a) of the Constitution. We further note that although the matter had not progressed to an oral hearing of the appeal, costs were still expended by parties in preparing for the hearing and therefore the successful party must be entitled to costs.
Orders
8.
Consequently, and for the reasons aforesaid, we make the following orders:
i.
The application dated March 27, 2024 is allowed.
ii.
The costs of the appeal dated September 5, 2022 shall be borne by the appellant/respondent.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/54/eng@2024-08-30
Petition E031 of 2024,"Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others (Petition E031, E032 & E033 of 2024 (Consolidated)) [2024] KESC 47 (KLR) (20 August 2024) (Ruling)",Ruling,Supreme Court of Kenya,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",20 August 2024,2024.0,Nairobi,Civil,Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others,[2024] KESC 47 (KLR),,"1.
The enactment of the Finance Act, 2023 precipitated a total of 11 petitions being filed in the High Court, that is, Okoiti & 6 Others vs. Cabinet Secretary for The National Treasury and Planning & 3 Others; CommissionerGeneral, Kenya Revenue Authority & 3 Others (Interested Parties) (Petitions Nos. E181, E211, E217, E219, E221, E227, E228, E232, E234, E237 & E254 of [2023] (Consolidated)) [2023] KEHC 25872 (KLR). The gist of the said petitions was a challenge to the constitutionality of not only the legislative process that culminated in the said Act but also some of the provisions therein. The High Court (Majanja, Meoli & Mugambi, JJ.) by a judgment dated 28th November, 2023 only declared some of the provisions in the Finance Act, 2023 as unconstitutional and not the whole Act as some parties had prayed.
2.
Subsequently, six appeals and three cross-appeals were lodged at the Court of Appeal, that is, The National Assembly & Another vs. Okiya Omtatah Okoiti & 55 Others, Civil Appeals Nos. E003, E016, E021, E049, E064 & E080 of 2024 (Consolidated) against the judgment of the High Court aforesaid. Apart from finding some of the provisions of the Act as unconstitutional, the Court of Appeal (M’Inoti, Murgor & Mativo, JJ.A.), unlike the High Court, by a judgment dated 31st July 2024, declared the entire Finance Act, 2023 unconstitutional. In particular, the court issued Orders inter alia that –
“
i.
The appellants’ appeals in Civil Appeals Nos. E003 of 2024 and E080 of 2024, against the findings that section 84 (the Affordable Housing Levy) and sections 88 and 89 (the Statutory Instruments Act) are unconstitutional, are hereby dismissed on grounds that the said issues have been caught up by the doctrine of mootness, therefore, they present no live controversies.
ii.
The notices of cross-appeal by the 15th to 22nd and 38th to 49th respondents and Civil Appeal No. E064 of 2024 are devoid of merit and the same are hereby dismissed, save that we find that the High Court misconstrued its mandate under Article 165 (3) by holding that it had no jurisdiction to intervene in policy matters.
iii.
The notice of cross-appeal by the 13th respondent (LSK) is hereby allowed in the following terms: (a) a declaration be and is hereby issued decreeing that sections 24 (c), 44, 47 (a) (v), 100 and 101 of the Finance Act, 2023, introduced post-public participation, are unconstitutional and void for having been enacted in a manner that by-passed the laid down legislative stages including publication, First Reading, Second Reading and contrary to Articles 10 (1) & (2) and 118 of the Constitution and Standing Orders.
iv.
Civil Appeal No. E016 of 2024 is allowed to the extent that a declaration be and is hereby issued that sections 18, 21, 23, 24, 26, 32, 34, 38, 44, 47, 69, 72, 79, 80, 81, 82, 83, 85, 86, 100, 101, and 102 of the Finance Act No. 4 2023, introduced post-public participation to amend the Income tax Act, Value Added Tax Act, Excise Duty Act and Miscellaneous Fees and Levies Act, Kenya Revenue Authority Act, Retirement Benefits Act, Alcoholic Drinks Control Act of 2010, Special Economic Zones Act and Export Processing Zones Act, are unconstitutional, null and void for not having been subjected to fresh public participation and having been enacted in total violation of the constitutionally laid down legislative path.
…
v.
Civil Appeal No. E021 of 2021 is merited. Accordingly, we hereby issue a declaration that the enactment of the Finance Act, 2023 violated Articles 220 (1) (a) and 221 of the Constitution as read with sections 37, 39A, and 40 of the PFMA which prescribes the budget making process, thereby rendering the ensuing Finance Act, 2023 fundamentally flawed and therefore void ab initio and consequently unconstitutional.
vi.
Civil Appeal No. E049 of 2024 partially succeeds in terms of the following orders:-
(a)
a declaration be and is hereby issued that in conformity with Article 10 (1) & (2) (c), Parliament is obligated to provide reasons for adopting or rejecting any proposals received from members of the public during (the) public participation process;
(b)
a further declaration is hereby issued that the failure to comply with this constitutional dictate renders the entire Finance Act, 2023 unconstitutional.
viii.
We affirm the finding by the High Court that sections 76 and 78 of the Finance Act, 2023 amending section 7 of the Kenya Roads Act, 1999 are all unconstitutional, null and void.
ix.
We uphold the finding by the High Court that concurrence of both houses in the enactment of the Finance Act, 2023 was not a requirement under Article
(i)
Having found that the process leading to the enactment of the Finance Act, 2023 was fundamentally flawed and in violation of the Constitution, sections 30 to 38, 52 to 63 and 23 to 59 of the Finance Act, 2023 stand equally vitiated and therefore unconstitutional...”","14.
We have considered the Motions and the parties’ rival submissions. The applicants herein seek interlocutory orders in the nature of stay of execution and conservatory orders pending the hearing and determination of the consolidated appeal by this Court. It is common ground in that context that, this Court is vested with jurisdiction to issue such interlocutory orders as provided for under Section 23A of the Supreme Court Act. As also appreciated in Board of Governors, Moi High School, Kabarak & another vs. Bell & 2 Others (Petition 6 & 7 of 2013 & Civil Application 12 & 13 of 2012 (Consolidated)) [2013] KESC 12 (KLR), the essence of such interlocutory orders is to safeguard the character and integrity of the subject-matter of an appeal, pending the resolution of all contested issues.
15.
The parameters within which stay of execution and conservatory orders may be issued by this Court were aptly set out in the Gatirau Munya Case as follows:
“
The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that:
i.
the appeal or intended appeal is arguable and not frivolous; and that
ii.
unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.
These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely:
iii.
that it is in the public interest that the order of stay be granted.”
16.
Based on the foregoing, we wish to disabuse the misconception that the element of public interest supersedes all the other elements when it comes to granting stay and conservatory orders. As the aforementioned decision clearly states, the element of an arguable appeal and the nugatory aspect should be established conjunctively and not disjunctively in an application for stay and conservatory orders. The reason for such a position is obvious-that stay or conservatory orders deny a successful litigant the fruits of his judgment albeit temporarily and so the applicant has to satisfy both limbs above in order to succeed in his prayers. However, it is only in specific circumstances, such as in this case, where public interest arises that the said element should be met. It is also common ground that not all cases will have a public interest element in them. Do the Motions in question meet the aforementioned parameters?
17.
To begin with, whether an appeal is arguable does not call for the interrogation of the merit of the appeal. It need not necessarily succeed, but it ought to warrant consideration by this Court. Further, even one arguable point is sufficient to meet the test. See Dock Workers Union & Another vs. Portside Freight Terminals Limited & 10 Others, SC Petition (Applic) No. E010 & E011 of 2024 (consolidated). Being mindful not to make definitive findings at this stage, we find that the place and extent of public participation in the legislative process, and whether Parliament can amend bills after they have been subjected to public participation are some of the issues which warrant this Court’s consideration. Similarly, the parameters and considerations of a declaration of the unconstitutionality of a statute requires our input as would the questions on the orders to be issued upon such a declaration being issued including whether to allow or disallow suspension or otherwise of the declarations to enable remedial action by the offending party.
18.
On the nugatory aspect, we understood some of the respondents to argue that the Court of Appeal declined to issue stay orders following the High Court judgment and opted to hear the consolidated appeal before it on merit. Therefore, in their view, the same was indicative that the appeal before us would not be rendered nugatory. In that regard, it is not in dispute that the Court of Appeal vide National Assembly & 47 Others vs. Okoiti & 169 Others (Civil Application E577, E581, E585 & E596 of 2023 (Consolidated)) [2024] KECA 39 (KLR) declined to stay the execution of the High Court judgment pending the hearing and determination of the appeal before it. However, we are cognisant that the High Court judgment had not declared the entire Finance Act, 2023 unconstitutional like the Court of Appeal Judgment did. The circumstances now obtaining are different for that reason alone. In any event, the fact that the superior courts below declined to issue stay of execution or conservatory orders by itself does not bar this Court from issuing interlocutory orders on a case-by-case basis.
19.
On our part therefore, taking into account the uncertainty regarding the revenue raising measures and difficulty that may arise in the operations of the two levels of governments as posited by the applicants, coupled with the far-reaching implications of the declaration of the entire Finance Act, 2023 as unconstitutional, we are persuaded that the consolidated appeal may be rendered nugatory. Besides, prima facie, we are not convinced that the consequences of such a declaration would be reversible should the consolidated appeal be successful.
20.
Furthermore, balancing the loss and uncertainty which would be occasioned to the applicants as against the loss by the respondents and public, we find that public interest tilts in favour of granting conservatory and stay orders to preserve the substratum of the consolidated appeal and maintain stability in the budget and appropriation process pending the determination of this appeal. In addition, in view of the public interest in the matter, we direct that the consolidated appeal herein be set down for hearing within the shortest time possible after the delivery of this ruling.
21.
Taking into account the public interest nature of the matter and this Court’s decision in Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai & 4 Others, SC Petition No. 4 of 2012; [2014] eKLR, we deem it just to order that each party bears its own costs.
22.
Consequently and for the reasons afore-stated, we make the following Orders:
i.
The 1st, 2nd, 3rd and 4th appellants/applicants’ Notice of Motions dated 1st and 2nd August, 2024 and filed on 1st and 5th August respectively are hereby allowed in the following terms:
a)
A conservatory order is hereby issued suspending and staying the declarations in Orders iii, iv, vi, vii & ix(i) issued in the Court of Appeal judgment dated 31st July, 2024 in Civil Appeals Nos. E003, E016, E021, E049, E064 & E080 of 2024 (Consolidated) pending the hearing and determination of the consolidated appeal before this Court.
ii.
The consolidated appeal be set down for mention before the Deputy Registrar of the Court for purposes of ensuring compliance with earlier directions on filings. iii. The consolidated appeals shall be set for hearingvirtually- on 10th and 11th September 2024 at 9 am each day.
iv.
Each party shall bear its costs of the Motions.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/47/eng@2024-08-20
Petition (Application) E020 of 2023,Garama v Karisa & 3 others (Petition (Application) E020 of 2023) [2024] KESC 45 (KLR) (9 August 2024) (Ruling),Ruling,Supreme Court of Kenya,Supreme Court,"MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",9 August 2024,2024.0,Nairobi,Civil,"Between
Kombe Harrison Garama
Appellant
and
Kenga Stanley Karisa
1st Respondent
Independent Electoral and Boundaries Commission
2nd Respondent
Amir Abubakar Seng (Magarini Constituency Returning Officer)
3rd Respondent
Michael Thoyah Kingi
4th Respondent",[2024] KESC 45 (KLR),,"Representation:
Mr. Munyua Ezekiel, Mr Ometo Bryson & Mr. Wakwaya Kelvin for the Applicant (Rachier & Amollo LLP)
Mr. Wesley Gichamba for the 1st Respondent (Gichamba & Co. Advocates)
Ms. Kiboi & Mr. Juluis Anyonka for the 2nd and 3rd Respondents (Hussein Mutembei & Co. Advocates)
Ms. Naazi & Mr. Edgar Busiega for the 4th Respondents (Mayede Busiega Advocates)
1.
Upon perusing the Notice of Motion by the applicant dated 6th June 2024 and filed on 13th June 2024 pursuant to the provisions of section 21 A (a) of the Supreme Court Act and rule 28 (5) of the Supreme Court Rules, 2020 seeking an order of review of our judgment dated 31st May 2024 and in the alternative, an order allowing the Petition of Appeal dated 1st August 2023; and
2.
Upon reading the grounds on the face of the application, the supporting affidavit dated 6th June 2024 sworn by Harrison Garama Kombe, and the written submissions dated 11th June 2024 and filed on 13th June 2024 wherein the applicant submits that this Court, in the impugned judgment, misapplied the disjunctive test set in Raila Odinga & 6 others v. William Ruto & 10 Others, Presidential Election Petition E005 of 2022 (Consolidated with) Presidential Election Petition Nos. E001, E002, E003, E004, E007 & E008 of 2022); the Court did not specifically state the place of scrutiny vis a vis burden of proof where allegations of election malpractice are made, creating a precedence that the results of a scrutiny exercise are to be disregarded and should have no effect on allegations of election malpractice; the Court did not state which of the two grounds under Section 83 of the Elections Act was proved by the 1st respondent to warrant overturning of the election; and that the impugned judgment was obtained through misrepresentation of facts.
3.
Further Noting that the applicant has outlined the alleged instances of misrepresentation in ten (10) polling stations within Magarini Constituency in Kilifi County and urges that his application has met the test for review under Section 21A of the Supreme Court Act because the findings by the two superior courts below as well as this court were based on misrepresentation and deceit by the 1st respondent and where the deceit and misrepresentation did not originate from the 1st respondent, the courts’ findings were based on non- existent claims and documents, warranting the invocation of this Court’s jurisdiction to review its decision; and
4.
Considering that the 2nd and 3rd Respondents indicated to the Court on 5th July 2024 that they support the application and have consequently not filed any formal response to it; and
5.
Upon reading the 1st respondent’s grounds of opposition and submissions both dated 29th June 2024 and filed on 8th July 2024 wherein he submits that this Court lacks jurisdiction to entertain the application as it does not fall within the purview of Section 21 (a) of the Supreme Court Act; the grounds in support of the Motion are a replica of the petition and submissions in support thereof, which the court dealt with at length in its judgment; the issues of alleged irregularities and illegalities of the election result for Magarini Constituency during the 2022 general election were dealt with in great detail when this Court delivered its verdict; the court rendered itself on the question of opening the ballot papers at the tallying centre, and even went further to refer to and apply the test in IEBC v. Maina Kiai & 5 others; Civil Appeal 105 of 2017; [2017] eKLR (the Maina Kiai Case); and
6.
Noting the further submission by the 1st respondent that the application is a camouflaged appeal of this Court’s decision delivered on 31st May 2024 and is also an abuse of the court process meant to delay the process of conducting a by-election for Magarini Constituency which has already commenced because the contested seat was declared vacant by the Speaker of the National Assembly vide Gazette Notice No. 7207 of 10th May 2024; the application does not meet the threshold in Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others S.C. Petition No. 6 of 2014 [2017] eKLR and that it is a classic case of forum shopping seeking to forestall the implementation of the orders of this Court as the applicant, through his campaign manager and proxies, filed the suit at the High Court in Malindi being Jackline Kabibi Juma & 2 Others v Attorney General & Others Malindi H.C. Pet No. E007 of 2024 seeking orders to stop the conduct of the by- election for Magarini Constituency; and
7.
Upon also considering the Replying Affidavit dated 1st July 2024 and sworn by Michael Thoyah Kingi, the 4th respondent herein, averring that the application is incurably defective as it discloses no ground for review; and that the application is a disguised appeal which seeks to reopen and relitigate matters already determined with finality by this Court;
8.
Furthermore noting that the applicant’s submissions on the alleged misrepresentation of facts by this Court revolve around the Court’s appreciation of the record and in particular its analysis of the scrutiny exercise conducted by the trial court and the resultant report on the exercise, its finding on transparency of the process specifically the reopening of the ballot boxes and whether the standard of proof was met in establishing the veracity of the allegations in the ten (10) named polling stations i.e. Adimaye, Kaemebeni, Shomela, Kadzuhoni, Kinyaule, Mekatilili, Malindi G.K. Prison, Kayadagamra, Vuga, Kibaoni and Mapimo Youth Polytechnic; and
9.
Bearing in mind the decision of this Court in Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others (supra) and its inherent powers, under Section 21 A of the Supreme Court Act as read with Rule 28 (5) of the Supreme Court Rules, wherein this Court, may, upon application by a party, or on its own motion, review its own decision where:
(a)
the judgment, ruling, or order, was obtained, by fraud, deceit or misrepresentation of facts;
(b)
the judgment, ruling, or order, is a nullity by virtue of being made by a court which was not competent;
(c)
the Court was misled into giving judgment, ruling or order, under a belief that the parties had consented; or
(d)
the judgment, ruling or order was rendered, on the basis of a repealed law, or as a result of a deliberate concealment of a statutory provision; and","Having considered the totality of the application, submissions put forth, we now opine as follows:
i.
The general rule is that once this Court delivers a judgment, it becomes functus officio and such a judgment stands until it is departed from in a future case or reviewed based on exceptional circumstances as delineated under Section 21A of the Supreme Court Act and Rule 28 (5) of the Supreme Court Rules. The Court in Fredrick Otieno Outa also specifically warned that an application for review is not meant to afford a party an opportunity to appeal, or relitigate its case. See also Hon. Mike Mbuvi Sonko v The Clerk, County Assembly of Nairobi City & 11 Others SC Petition (Application) No. 11 (E008) of 2022, and Member of Parliament Balambala Constituency v Abdi & 7 others SC Petition 21 (E023) of 2020 [2023] KESC 80.
ii.
On the disjunctive application of Section 83 of the Elections Act, the Court, in its judgment aforesaid, analysed the Raila 2017 & Raila 2022 decisions, the long history of the ‘disjunctive and conjunctive debate’ and the legislative reforms arising therefrom at paragraphs 72- 82. At paragraph 77 of the judgment, the Court noted that the amendments to Section 83 of the Elections Act were brought about by the Elections Laws Amendment Bill 2017. It concluded at paragraph 82 that ‘the test to be applied in Section 83 is a disjunctive one and not a conjunctive one as argued by the appellant’. The amendment to Section 83 was not therefore singly, an analysis of the Raila 2017 decision, as urged by the applicant but the subject of legislative reforms leading up to the Raila 2022 which reaffirmed the current construction of Section 83. The Court ultimately held that proof of either of the two limbs under Section 83 of the Election Act is sufficient to nullify an election.
iii.
As to the standard of proof in an election dispute, the impugned decision at paragraph 87 reiterated that in an allegation of an election offence or quasi-criminal conduct, the proof expected is one that is beyond reasonable doubt. In any other case, the standard has been set at an intermediate level, being higher than balance of probabilities but lower than beyond reasonable doubt.
iv.
On the alleged misrepresentation of facts, the Court, in its judgment, first cautioned itself that the duty to re-evaluate evidence is a function of the first appellate court and at paragraph 97 stated instances where it will entertain a question of fact. At paragraphs 22, 25 and 90 of the judgment, the Court undertook a summarized reproduction of facts of the case as recorded by the courts below, and did not in any way introduce new facts to the dispute; further, the Court referred to the Maina Kiai Case as well as Ahmed Abdullahi Mohamed &Anor v. Hon Mohamed Abdi Mohamed & 2 Others Election Petition No. 14 of 2017 and made a finding at paragraph 100 that the results declared at the polling station are final because that is the true locus of the vote and where the verification exercise of votes is done.
v.
On the scrutiny report, the Court at paragraph 108 appreciated that the scrutiny exercise and resultant report was one of the factual considerations the 1st respondent took into account in arguing his case but that did not preclude him from presenting and relying on other pieces of evidence to illustrate the fact that the election in question did not conform with constitutional and legal imperatives; and this finding does not in any way create a precedence that scrutiny results are to be disregarded and have no effect on allegations of election malpractice as alleged by the applicant.
vi.
Lastly, on the grounds under Section 83 of the Elections Act proved by the 1st respondent to warrant overturning of the election, the Court was categorical in paragraph 111 that the same was satisfied on both limbs of Section 83 of the Elections Act.
vii.
In view of the foregoing, we find and in agreement with the 1st respondent that, the application is an appeal disguised as a Motion for review and does not fall within the confines of the parameters in the Fredrick Otieno Outa Case as set out above and must be therefore be dismissed.
viii.
On costs, we are convinced that the Motion is a clear abuse of the court process and the applicant must bear the consequences of its filing and dismissal. He must therefore pay the costs thereof.
11.
For the aforestated reasons we make the following final orders:
i.
The Notice of Motion dated 6th June 2024 and filed on 13th June 2024 is hereby dismissed; and
ii.
The applicant shall bear the 1st and 4th Respondents’ costs.
12.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/45/eng@2024-08-09
Petition E031 of 2023,Ondimu & another v Commissioner of Police & 3 others (Petition E031 of 2023) [2024] KESC 46 (KLR) (9 August 2024) (Judgment),Judgement,Supreme Court of Kenya,Supreme Court,"MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",9 August 2024,2024.0,Nairobi,Civil,"Alex Otuke Ondimu
1st Appellant
Motor World Limited
2nd Appellant
and
Commissioner of Police
1st Respondent
The Director of Criminal Investigations Department
2nd Respondent
The Hon. Attorney General
3rd Respondent
Joseph Muthui Kiragu
4th Respondent",[2024] KESC 46 (KLR),,"A. Introduction
1.
In this Petition dated October 30, 2023, the appellants seek orders setting aside the Judgment and Order of the Court of Appeal (F Ochieng, L Achode & W Korir, JJ.A) delivered on September 22, 2023. The Court of Appeal upheld the High Court’s (Ngetich, J.) Judgment in HCCC No 223 of 2012 delivered on March 30, 2022 where the High Court declared that the respondents’ actions of search and entry of the 1st and 2nd appellants’ premises was illegal and a violation of the appellants’ rights under articles 31 and 40 of the Constitution. The High Court further awarded the appellants’ damages in the sum of Kshs.3,000,000/= together with interest and costs.
B. Background
2.
The 1st appellant, Alex Otuke Ondimu, was engaged in the motor vehicle industry where he would purchase second-hand motor vehicles by first paying a deposit, then reselling the vehicles at a profit and thereafter make the final payment to the vendor. In 2009, the 1st appellant and his father, Julius Barasa Ondimu, incorporated Motor World Limited, the 2nd appellant, which operated in Nakuru. The 1st appellant then transferred his motor vehicle business to the 2nd appellant.
3.
Initially, the appellants acquired the motor vehicles locally from other motor vehicle dealers and would resell at a profit or on commission-basis. Subsequently, the appellants began importing motor vehicles directly. In the course of business, a dispute arose between the appellants and Yuasa International Limited, one of their suppliers based in Mombasa. Through several agreements, the 1st appellant purchased vehicles from Yuasa International and paid a deposit thereon with the balance payable in instalments. However, at some point, the 1st appellant and Yuasa International were unable to agree on the outstanding amount, culminating in Yuasa International instructing auctioneers to repossess the motor vehicles. Consequently, on October 1, 2010 the 1st appellant filed a suit in the High Court at Nakuru being, HCCC No. 249 of 2010 to challenge that action.
4.
In the meantime, in January 2011, a complaint was made by Mr. Owino Wahongo, the Director of Speedbat Freighters Ltd., a clearing and forwarding company, at the Criminal Investigations Department (CID) in Mombasa. The complaint was in respect of an alleged theft of various motor vehicles on transit from the Port of Mombasa to Uganda and Juba via the Port of Malaba. Sgt. Joseph Muthui Kiragu, the 4th respondent, who was then attached to CID Mombasa, was tasked with carrying out the investigations. According to the 4th respondent, the investigations led to the 1st appellant who was suspected to be in possession of the said motor vehicles in Nakuru.
5.
On January 23, 2011, the 4th respondent and police officers from Nakuru went to the 1st appellant’s residence situated at section 58 Nakuru. Upon the 1st appellant being informed of the presence of the said police officers, he jumped over his perimeter fence and ran away. Thereafter, the police officers searched his residence and took a briefcase containing several documents including logbooks, his primary school leaving certificate, passport and personal identification number (PIN) certificate. They also towed two motor vehicles, a VX Toyota Land Cruiser registration number KBL 111S, and a Toyota Prado registration number KBN 181L, from his residence to Nakuru Central Police Station. It is instructive to note that at the material time, the police officers did not have a search warrant, which the 4th respondent urged could not be obtained on the said day being a Sunday. The following day, on January 24, 2011, the police officers searched the 2nd appellant’s premises and towed away a Nissan Caravan registration number KBN 141T, from the showroom to Nakuru Central Police Station.
6.
Moreover, according to the 4th respondent, the investigations had also unearthed other complaints/criminal offences against the 1st appellant unrelated to the complaint made by the Director of Speedbat Freighters Ltd. In that regard, criminal proceedings were instituted in Mombasa., CMCRC. No. 188 of 2011, on January 18, 2011, and warrants for his arrest issued therein. The 1st appellant was arrested, arraigned before the Mombasa Chief Magistrate’s Court and charged with one count of stealing by agent contrary to section 283(c) of the Penal Code. The particulars of the charge were that on or about January 5, 2010, the 1st appellant and Ali Khalid (co-accused) jointly stole Kshs. 3,000,000/= being the purchase price of motor vehicle registration number KBK 865S, a Mitsubishi Rosa, which was received from George L. M. Gichimo for or on account of Yuasa International. They were charged with an alternative count of obtaining property by false pretences contrary to section 313 of the Penal Code. The particulars of the alternative count were that on January 5, 2010, the 1st appellant and his co- accused jointly, with the intention to defraud, obtained the aforementioned motor vehicle from Yuasa International by falsely pretending that they were in a position to pay the purchase price of the vehicle, which they knew was false. The 1st appellant and Ali Khalid (co-accused) were charged with a second count of obtaining money by false pretences contrary to section 313 of the Penal Code. The particulars were that on or about January 9, 2010 at Vineyard Hotel, Nakuru, with the intention to defraud, obtained Kshs. 3,000,000/= from George L.M. Gichimo by falsely pretending that they were the importer and registered owners of motor vehicle registration number KBK 865S and capable of availing the logbook after payment of the purchase price. Lastly, the 1st appellant and his co-accused were charged with a third count of obtaining property by false pretences contrary to section 313 of the Penal Code. The particulars were that on or about February 16, 2010 at Vineyard Hotel Nakuru, with the intention to defraud they obtained Kshs. 4,000,000/= from George L. M. Gichimo by falsely pretending that they were the importers and registered owners of motor vehicle registration number KBH 491Z, a Toyota Land Cruiser, and that they were in a position to avail the logbook thereof after payment of the purchase price which they knew to be false.
7.
It is worth noting that the two vehicles subject of the aforementioned charges in Mombasa CMCRC. No. 188 of 2011, that is, KBK 865S and KBH 491Z, were also subject of HCCC No. 249 of 2010 which had earlier on been instituted by the 1st appellant against Yuasa International. In addition, the 4th respondent lodged Criminal Misc. Appl. 16 of 2011 at the Chief Magistrate’s Court in Mombasa, and on January 28, 2011 obtained orders directing the appellants’ bankers, that is, Oriental Commercial Bank, Nakuru Branch and Eco Bank (K) Ltd., Nakuru Branch, to release to him logbooks of various motor vehicles deposited by the 1st appellant for safekeeping and/or held as security for purposes of aiding the investigations. Further, Kenya Revenue Authority was directed to place a caveat/caution to prevent transfer of the motor vehicles relating to the logbooks surrendered by the banks.
8.
Perturbed by the seizure of the three motor vehicles and institution of Mombasa CMCRC No. 188 of 2011, the 1st appellant lodged H.C.JR No. 7 of 2011 seeking the following orders:
1.
Certiorari to move into the High Court and quash the order issued by the Commissioner of Police (1st respondent herein), the Director of CID (the 2nd respondent herein) and the OCS of Nakuru Police Station authorizing the search of the appellants premises and impounding and detaining of motor vehicles registration number KBL 11S, KBN 141T and KBN 181L.
2.
Prohibition to prohibit or stop the 1st and 2nd respondents as well as the OCS of Nakuru Police Station from continuing to detain motor vehicles registration number KBL 11S, KBN 141T and KBN 181L.
3.
Prohibition to prohibit or stop the 1st and 2nd respondents from prosecuting the 1st appellant, and the Chief Magistrate, Mombasa Law Courts from proceeding with the trial of the 1st appellant in CMCRC. No. 188 of 2011.The High Court issued interim orders on February 4, 2011 to the effect that two of the vehicles that had been seized by the police namely, motor vehicles registration number KBL 111S and KBN 181L, be released to the appellants. However, the court directed that the said vehicles were not to leave Nakuru or be transferred to a third party. Further, that the documents of ownership of the two vehicles were to be surrendered to the investigating officer.","F. Analysis
Whether the superior courts below failed to consider and pronounce themselves on all the reliefs and/or orders sought
45.
The appellants submitted that both superior courts below failed to address themselves to a prayer for declaration that the filing of charges in CMCRC No 188 of 2011 against the 1st appellant was illegal, arbitrary, unlawful, capricious, malicious, an abuse of power/authority and a violation of the 1st appellant’s right to dignity. Further that the institution of that case subjected him to psychological torture.
46.
We have looked at the judgmentsof the two courts below and found that indeed, that despite being raised as a ground of appeal, this prayer was not addressed. In the case of Dhanjal Investments Limited v Kenindia Assurance Company Limited, SC Pet No 7 of 2016; [2018] eKLR, where this Court faced a similar argument, in which the Court of Appeal failed to address the merits of the grounds of affirmation, we had the following to say:
“
(61)
In our assessment of the Court of Appeal’s decision, we have not come across any reference to the notice of the grounds of affirmation or the contents therein. This may be so because the High Court decision related to the legality and procedure of the appointment of the arbitrator whereas the Court of Appeal decision faulted that appointment. It was therefore unnecessary in the Court of Appeal’s view for it to engage in analyzing a consequence founded on an unlawful action.
(62)
While the above position was convenient to the Court of Appeal, it was prudent for it to specifically address the grounds and make a finding on each of them even if to dismiss them later or find that there was no need to consider them in light of its findings ...” [Emphasis ours]
We thus held that failure to consider the notice of grounds of affirmation rendered the issue undetermined and therefore leaving the litigants in a state of uncertainty. It therefore follows that this courtought to consider the grounds that the superior Courts below did not address, and we shall consider the said prayer and make a determination on it.
(ii)Whether the 1st appellant’s right to dignity and not to be subjected to physiological torture under articles 28 and 29(d) of the Constitution was violated by the respondents.
47.
Notably, none of the parties submitted on the peculiar aspects of the trajectory of the criminal proceedings, that is how long it took, the amount of bail imposed, any challenges in raising the bail, or whether the proceedings were stopped on account of the pending JR case. The 1st appellant only stated that he was incarcerated for one day and that he shuttled from Mombasa to Nakuru over a long period of time to attend to the criminal case. That fact notwithstanding, the Prevention of Torture Act, Cap. 88 of the Laws of Kenya was enacted to give effect to articles 25(a) and 29(d) of the Constitution and the principles of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. section 4 of the said Act defines torture as:
“
4.
For the purposes of this Act, “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person-
a.
for the purposes of-
i.
obtaining information or a confession from him or her or any other person;
ii.
punishing him or her for an act he or she or any other person has committed, is suspected of having committed or is planning to commit; or
iii.
intimidating or coercing him or her or any other person to do, or to refrain from doing, anything; or
b.
for any reason based on discrimination of any kind.
when such pain or suffering is inflicted by or at the instigation of, or with the consent of acquiescence of a public officer or a person acting on behalf of a public officer, but does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
Clause 2 of the Schedule to the Act lays out instances that may be classified as mental or psychological torture.
48.
The definition above is similar to the one adopted by the Constitutional Court of South Africa in the case of Sonke Gender Justice NPC v President of the Republic of South Africa and Others (CCT307/19) [2020] ZACC 26, 2021 (3) BCLR 269 (CC) (4 December 2020), in the following terms:
“It is increasingly acknowledged that the definition of “torture” does not stop at physical suffering. Psychological torture has been interpreted to include all methods, techniques and circumstances which are intended, foreseen or designed to inflict severe mental suffering, even absent physical pain. This includes, for example, isolation, the induction of anxiety through misinformation and violent threats against the incarcerated person or their family, the manipulation of cultural phobia, the withdrawal of access to privileges such as bedding or reading material, the imposition of contradictory or absurd rules, public humiliation and constant surveillance.”
49.
Similarly, the Inter-American Court of Human Rights in the case of Buenos-Alves v Argentina, in discussing the question of torture, held that the elements of torture are: 1) an intentional act; 2) which causes severe physical or mental suffering; and 3) committed with a given purpose or aim.
50.
In Monica Wangu Wamwere & 5 Others, SC Petition No 26 of 2019 (as Consolidated with Petitions Nos 34 & 35 of 2019), this court went into great detail to discuss the definition of torture, what would constitute psychological torture and the parameters thereof. Notably, we held that:
“[82]
…Therefore, the ‘essential elements’ of what constitutes torture can be identified from article 1 of “CAT” include:
a)
the infliction of severe mental or physical pain or suffering; and
b)
for a specific purpose, such as gaining information, punishment or intimidation.
….
(84)
It is evident that the exact boundaries between ‘torture’ and other forms of ‘inhuman or degrading treatment punishment or other treatment’ are often difficult to identify; and may depend on the particular circumstances of the case as well as the characteristics of the particular victim. Nonetheless, both terms cover mental and physical ill- treatment that has been intentionally inflicted by or with the consent or acquiescence of state authorities.’
“61.
Every human being has the inherent need for communal trust. Confronted with the overwhelming power of the State, individuals must be able to compensate for their own powerlessness by relying on the community’s ability and willingness to exercise self-restraint, most notably through adherence to the rule of law and the principles of due process. As long as administrative or judicial error, negligence or arbitrariness can be effectively, if at times imperfectly, addressed and corrected through a regular system of institutional complaints and remedies, the resulting inconveniences, injustices and frustrations may have to be tolerated as an inevitable side effect of the constitutional processes that govern democratic societies. [Emphasis ours]
Therefore, where the systems fail to adequately address and check such violations, an individual may indeed suffer severe mental suffering and trauma.
51.
We take judicial notice of the fact that various issues can affect one psychologically, for instance, family matters, divorce, bereavement, work, lawsuits and so forth. It however is upon a litigant pleading psychological torture to establish in exact terms, how and when they suffered such. Consequently, the 1st appellant needed to establish what particular elements caused him psychological torture. It is expected that litigation in itself would invariably affect a party psychologically, the seriousness thereof however, would depend on a myriad of factors. It is not enough to merely state that the 1st appellant shuttled between Nakuru and Mombasa to attend his trial, suffered anguish, despair and economic stress. In the circumstances, we are not convinced that the appellants have met the parameters set out elsewhere herein, and we find that the appellants have not established that the 1st appellant suffered psychological torture.
52.
Further, we note that the prayer that was not considered by the superior Courts below, reads as follows:
“
c)
A declaration that the institution of Criminal Case No. 188 of 2011 against the 1st plaintiff was illegal, arbitrary, unlawful, capricious, malicious, and an abuse of power and/or authority and the 1st plaintiff’s right to dignity and not to be subjected to psychological torture guaranteed and protected under articles 28 and 29(d) of the Constitution have been violated by the respondents.”
53.
As rightly noted by the High Court (Ouko, J (as he then was) in JR No 7 of 2011, the Director of Public Prosecutions is tasked and mandated by the Constitution under article 157 of the Constitution to perform his functions in the following terms:
6.
The Director of Public Prosecutions shall exercise State powers of prosecution and may-
a.
institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
b.
take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
c.
subject to clause [7] and [8] discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph [b].
54.
The Director of Public Prosecutions was and still is not a party to the proceedings before the superior courts below. The court in the JR Case No 7 of 2011 stated that it could not issue orders of prohibition to stop the prosecution because the Director of Public Prosecutions is the only body vested with prosecutorial powers and they were not parties to the suit. We agree with the fact that the Constitution of Kenya, 2010 , birthed the Director of Public Prosecutions which is vested with prosecutorial powers which includes instituting and undertaking criminal proceedings. sections 57(1) and (2)(a) and (b) of the Office of the Director of Public Prosecutions Act, Cap 6B of the Laws of Kenya, provide that all prosecutions, appeals, revisions and other proceedings, service of documents in connection with criminal proceedings shall be deemed to have done in the name of the ODPP. This means that for all intents and purposes, CMCRC. No. 188 of 2011 was instituted by the DPP.
55.
It would have been prudent for the appellants to amend their pleadings and include the DPP as a party to this matter for regularity. In the circumstances, to award the appellants damages for the violation of their rights under articles 28 and 29[d] of the Constitution on account of the institution of CMCRC. No. 188 of 2011, would translate to condemning the Director of Public Prosecutions unheard, which goes against the principles of natural justice. While it is indeed evident that the appellants sued the Attorney General, that was insufficient in view of the separate and distinct constitutional mandate of the Director of Public Prosecutions and the Attorney General. For the foregoing reasons, we are not inclined to make any declaration on the alleged violation of articles 28 and 29(d) of the Constitution.
iii. Whether the appellants established loss of business/income by the 2nd appellant and if so, whether it is attributable to the respondents.
56.
The appellants submitted that they called as a witness, Stanley Invako Mbeche, a Certified Public Accountant of M/s PGN & Partners Certified Public Accountants who produced the 2nd appellant’s audited accounts. According to the evidence produced, the sales dropped from Kshs.54,450,000/= in 2010 to Kshs.12,800,000/= in 2011 hence the claim for Kshs2 8,113,722. The respondents submitted on the other hand that the downward trend in sales in 2011 did not mean that it was on account of the 1st appellant’s arrest and the appellants did not produce any evidence in support of their claim.
57.
The learned judgeof the High Court stated that: “However in my view, other factors affecting businesses cannot be ruled out and losses listed cannot solely be attributed to the defendants (sic) actions.” The Court of Appeal, on its part, held that the claim for Kshs2 8,113,772 was in the nature of special damages which must be strictly proved. The Court of Appeal further held that the evidence adduced by the appellants did not establish that the low sales in 2011 was solely caused by the respondents’ actions. It was also not established that the increased financial costs in the year 2011 were a direct result of the respondents’ actions.
58.
We have considered the record and the evidence of PW2, Stanley Invako Mbeche. It would appear that indeed the sales in 2011 were lower than those in 2010. We are nonetheless inclined to agree with the findings of the superior courts below. Special damages must be strictly proved. The 1st appellant testified that the matter was published in the Nation newspaper and that the 4th respondent damaged his name. In the amended plaint, the appellants averred that there was wide negative publicity that caused the 1st appellant’s business to drastically decline. However, there was no evidence adduced relating to this. We therefore agree with the findings of superior courts’ below that the appellants failed to establish the nexus between the respondents’ actions and the decline in the appellants’ business. Beyond producing the audited accounts, there was nothing that tied the decline in sales to the respondents’ actions.
59.
The appellants further faulted the respondents for failing to adduce evidence that there were other factors that led to the decline in business. It is trite that he who asserts must prove. See sections 107-109 of the Evidence Act, Cap 80 of the Laws of Kenya. Had the appellants’ discharged the burden of proof, then it would have been proper to shift the burden of proof to the respondents and call upon them to prove the existence of other factors that led to the closure of the appellants’ business.
60.
In addition, the appellants submitted that the respondents admitted that their conduct negatively affected their business. In Choitram & another v Nazari, Civil Appeal No. 8 of 1982; [1984] eKLR, the Court of Appeal had this to say with regard to admissions:
“ …. admissions can be express or implied either on the pleadings or otherwise, eg in correspondence. Admissions have to be plain and obvious, as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning. Much depends upon the language used. The admissions must leave no room for doubt that the parties passed out of the stage of negotiations onto a definite contract. It matters not if the situation is arguable, even if there is a substantial argument, it is an ingredient of jurisprudence, provided that a plain and obvious case is established upon admission by analysis. Indeed, there is no other way, and analysis is unavoidable to determine whether admission of fact has been made either on the pleadings or otherwise to give such judgment as upon such admissions any party may be entitled to without waiting for the determination of any other question between the parties. In considering the matter, the judge must neither become disinclined not lose himself in the jungle of words even when faced with a plaint such as the one in this case…”
61.
The appellants quoted the following words in the respondents’ submissions in support of the allegation on admission: “… the trial court sufficiently took into account the conduct of the respondents and the implication they had on the appellant’s business while awarding general damages”.
Applying the foregoing to the instant case, it is obvious that what the appellants label as an admission is indeed far from one. We therefore reject this argument.
62.
The appellants also alleged that contrary to this Court’s decision in Gladys Boss Shollei v Judicial Service Commission & Another, SC Pet No 34 of 2014; [2022] KESC 5 (KLR), the Court of Appeal upheld the High Court’s decision on different grounds to those advanced by the High Court. In particular, the appellants submitted that while the High Court did not attribute the business losses to any specific factor, the Court of Appeal went ahead to give possible reasons. We have considered our decision in the Gladys Boss Shollei Case. In that case, we held that the Court of Appeal erred in formulating its own reasons for upholding the Judicial Service Commission’s (JSC) refusal to accord the appellant a public hearing, which reasons were not those given by the JSC. The facts therein are clearly distinguishable from the present matter. The decision of the JSC was ideally the cause of action in the Gladys Boss Shollei Case and by proffering its own reasons, it meant that the Court of Appeal was mutating the cause of action. However, in the present case, the Court of Appeal was exercising its jurisdiction as a first appellate court - that is, to consider the issues by reevaluating the evidence adduced in the trial court and arrive at its own conclusions of fact and law, and it could depart from the trial court’s findings if the same were not based on the evidence on record or where the trial court proceeded on the wrong principles of law. This line of argument by the appellants therefore fails.
iii. Whether the Court should interfere with the quantum of damages for the violation of the appellants’ rights
63.
In awarding Kshs 3,000,000 as damages, the High Court found that the appellants rights were violated when the respondents seized their motor vehicles without calling upon the appellants to prove legal possession. However, it also found that the appellants failed to establish that the respondents’ actions solely caused the decline and subsequent closure of their business.
64.
The Court of Appeal on its part held that an award of general damages is an exercise of judicial discretion and outlined the guidelines to be considered in a request to disturb an award of damages. In restating that compensation for violations of constitutional rights is meant to vindicate the right violated, it held that the award was proportional and rational in the circumstances.
65.
In the case of Parliamentary Service Commission v Martin Nyaga Wambora & 5 Others, SC Application No 8 of 2017; [2018] eKLR, this court affirmed the rationale in the case of Mbogo & Another v Shah; [1968] EA 93 at 96 that “…a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been mis- justice.”
66.
We find that the appellants have failed to establish that there was any misdirection in the exercise of the High Court’s discretion to award damages. We therefore decline the invitation to interfere with the damages awarded by the High Court and affirmed by the Court of Appeal.
iii. Whether the court should apportion the general damages between the appellants.
67.
Evidently, the High Court, awarded the appellants Kshs 3,000,000 as damages. The Court of Appeal, on their part, held that whilst the award was ambiguous, the appellants had not pleaded different causes of action, separate and distinct reliefs. In addition, the appellant company had long closed down.
68.
We have perused the record and we agree with the appellants that their claims were easily distinguishable and discernible, from the pleadings right to the prayers. The Court of Appeal therefore fell into error in finding that the appellants failed to plead different causes of action and different reliefs.
69.
However, we note that one of the appellants’ grounds of contention is that there was nothing on record to show that the 2nd appellant was closed down long before the suit at the High Court was concluded. This appears to be the crux of faulting the Court of Appeal’s decision. However, the record clearly reflects that the 1st appellant’s testimony, PW2’s, Stanley Invako Mbeche, and PW3’s testimony, Teresa Njambi who was also the 1st appellant’s wife, spoke to the closure of the 2nd appellant’s business. Further, the 1st appellant testified before the High Court that the 2nd appellant was no longer operational. On the other hand, in their oral submissions before this Court, the appellants stated that the 2nd appellant was still in existence.
70.
It is however evident that the status of the 2nd appellant as advanced earlier by the 1st appellant and his witnesses was that it was no longer operational. Further, it would appear that it closed its business in 2013 or 2014. Having considered the appellants’ counsel’s oral submissions that the 2nd appellant is still in existence, we find that the evidence as relates the 2nd appellant is at best, unclear and uncertain. In the circumstances, we are not inclined to interfere with the High Court’s award. We therefore decline to apportion the damages between the appellants as prayed.
71.
In the circumstances and for the reasons given above, the appeal is partially successful. In line with our decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 thers, SC Petition Application No. 4 of 2012; [2014] eKLR, we are inclined to order that parties bear their own costs.
Orders
72.
Consequently, and for the reasons aforesaid, we make the following Orders:
a.
The Petition dated October 30, 2023is partially successful only to the extent that the Court of Appeal erred in failing to consider all the grounds of appeal advanced by the appellants.
b.
For the avoidance of doubt, all other prayers in the appeal are dismissed.
c.
Each party shall bear its own costs.
d.
We hereby direct that the sum of Kshs.6,000/=, deposited as security for costs upon lodging of this appeal, be refunded to the appellants.
Orders accordingly.",Allowed in Part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/46/eng@2024-08-09
Petition E009 of 2024,"Freedom Limited v Mbarak; Attorney General on behalf of Cabinet Secretary, Ministry of Lands, Public Works, Housing and Urban Development & 3 others (Proposed Interested Parties) (Petition E009 of 2024) [2024] KESC 37 (KLR) (2 August 2024) (Ruling)",Ruling,Supreme Court of Kenya,Supreme Court,"PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko",2 August 2024,2024.0,Nairobi,Civil,"Freedom Limited
Appellant
and
Omar Awadh Mbarak
Respondent
and
Hon Attorney General on Behalf of Cabinet Secretary, Ministry of Lands, Public Works, Housing and Urban Development
Proposed Interested Party
Chief Land Registrar
Proposed Interested Party
Director of Survey
Proposed Interested Party
Director, Land Administration
Proposed Interested Party",[2024] KESC 37 (KLR),,"Representation:
Anjarwalla & Khanna LLP for the Appellant
Muturi Gakuo & Kibara & Co. Advocates for the Respondent
Attorney General for the Proposed Interested Party
1.
Upon perusing the Notice of Motion dated 20th May 2024, and filed on 24th May 2024 by the Proposed Interested Party (the Applicant) pursuant to Section 24 of the Supreme Court Act 2011, Rules 3(1), (2), (4) and (5), 24 and 31 of the Supreme Court Rules 2020, and Direction 55(a) of the Supreme Court (General) Practice Directions 2020; seeking leave for admission as an interested party; thereafter, an opportunity to file a response and submissions to the petition upon service; and costs incidental to the application be provided for; and
2.
Upon considering the grounds on the face of the application, and the supporting affidavit sworn by David Nyandoro Nyambaso, the Chief Land Registrar, on 14th May 2024, to the effect that the property awarded by the Court of Appeal in Omar Awadh Mbarak v Freedom Limited, Mombasa Civil Appeal No E028 of 2022 no longer exists; that the applicant was not a party to the proceedings both in the Environment and Land Court or before the Court of Appeal and only became aware of the dispute recently; that though the Court of Appeal expressed significant doubts over the process leading up to the appellant’s acquisition of the suit property, and found several unresolved questions regarding the authenticity of the ownership documents presented by both parties, it nonetheless failed to invoke Rule 31 of the Court of Appeal Rules 2022 in order to resolve the lacuna by asking for additional evidence; that the Court of Appeal instead invoked the uncodified doctrine of seisin to award 973 acres of Plot No 287/3, Section V, mainland to the Respondent above constitutional and statutory provisions; that as the Chief Land Registrar, the applicant is mandated to safeguard the integrity of the certificates of title issued by his registries; that according to their records, the person whom the Court of Appeal has issued orders in favour of has never been the registered proprietor and it is not clear how his interest accrued; and that had the Chief Land Registrar been a party to the proceedings he would have provided information as to the status of the property, and the court may have reached a different determination; and
3.
Upon further considering the applicant’s supplementary affidavit sworn by Wilfred Muchae Kabue, the Assistant Director of Survey with the Ministry of Public Works, Housing and Urban Development, on 6th June 2024 wherein the applicant reiterates its grounds in support of the application and submits that it has met the criteria for a joinder application of an interested party as enunciated in the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others, SC Petition No 12 of 2013; [2014] eKLR; and
4.
Bearing in mind that the appellant in his replying affidavit sworn by Harji Govind Ruda on 30th May 2024, has expressed support for the application of joinder of the applicant as an interested party; and
5.
Noting that the respondent, on the other hand by a replying affidavit sworn by Omar Awadh Mbarak on 29th May 2024 and submissions dated 29th May 2024 is opposed to the Motion on the grounds that the affidavit supporting the application is fatally defective and incompetent as the deponent, David Nyandoro who has described himself as the Chief Land Registrar was not the Chief Land Registrar on account of a judgment delivered on 24th May 2024 in Nairobi ELRC No E218 of 2023 consolidated with Petition No E217 of 2023 which revoked his purported appointment; that the applicant was all along aware of the existence of the land dispute between the parties having been a party to Mombasa High Court Constitutional Petition No 42 of 2019 and Mombasa Chief Magistrate Court Criminal Case No 1278 of 2017; that the applicant does not meet the well-settled criteria for joinder as an interested party neither has the applicant demonstrated that its concerns will not be well articulated on the basis of what has been presented to the Court or the prejudice the applicant stands to suffer if the joinder application is not granted; and","Having considered the application, responses, and submissions before us, WE NOW OPINE as follows:
i.
Rule 24 of the Supreme Court Rules, 2020 provides for the joinder of an interested party in the following manner:
“
(1)
A person may, within seven days of filing a response in any proceedings, apply for leave to be joined as an interested party.
2.
An application under sub-rule (1) shall include—
a.
a description of the interested party;
b.
a depiction of such prejudice as the interested party would suffer if the intervention was denied; and
c.
the grounds or submissions to be advanced by the interested party, their relevance to the proceedings, and their departures from the standpoint of the parties.”
ii.
These provisions have been previously considered by the Court and there is a long line of the Court’s pronouncements on its power to admit an interested party. For instance, in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others, SC Petition No 12 of 2013; [2014] eKLR and in Francis Karioki Muruatetu & another v Republic & 5 others, Petition 15 as consolidated with 16 of 2013; [2016] eKLR, the Court outlined the elements that must be satisfied for a party seeking to be joined in proceedings as an interested party to succeed.
iii.
Those elements may be summarized as follows;
a.
since the joinder of a party to proceedings before this Court is not as of right, but at the discretion of the Court, the applicant must lay sufficient grounds to qualify for the exercise of that discretion;
b.
any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties before the Court. The primary impact is on the parties that first moved the Court;
c.
whether one is joined as an interested party, amicus, or intervener the issues to be determined by the Court will always remain the issues as presented by the principal parties, or as framed by the Court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues, or introduce new issues for determination by the Court;
d.
one of the principal considerations for admission of an interested party is that such a party must demonstrate that he/she has an identifiable personal stake or legal interest in the matter before the Court. That stake or interest cannot take the form of an introduction to an altogether new issue;
e.
the applicant must demonstrate the nature of prejudice he/she stands to suffer in case of non-joinder; and
f.
lastly, the applicant must demonstrate the relevance of his or her case and show that it is not merely a replication of what the other parties will be presenting before the Court.
iv.
The question this application seeks to answer is, in what way will the applicant be affected or prejudiced by the decision of the Court when it is finally made either way? Or put differently, will the applicant’s legal interest or personal stake suffer if they are not permitted to personally articulate and champion them in the proceedings? Or how different will the applicant’s intended submissions before this Court be from those the appellant will be making?
v.
From inception in 2015 following the institution of Constitutional Petition No 58 of 2015 (Freedom Limited v The Chief Land Registrar & 2 others) the Chief Land Registrar and the County Land Registrar, Mombasa County and the Attorney General were parties. Similarly in Mombasa High Court Constitutional Petition No 42 of 2019 instituted by the appellant, the Director of Survey, the Director of Criminal Investigations Land Fraud Unit, and the Chief Land Registrar were all sued.
vi.
In addition to the two cases above, the respondent was charged in Mombasa Chief Magistrates Court Criminal Case No 1278 of 2017 for alleged forgery of a Transfer and Sale Agreement in which the key witnesses were the Principal Surveyor and the Land Registrar.
vii.
Though the applicant has not been a party to the proceedings giving rise to the present appeal, it is not accurate, in view of the foregoing background to say that the applicant has not been aware of the dispute between the parties herein over the ownership of the suit property.
viii.
It is however important to state that from the record, it is apparent that an oral application by the appellant to call the Director of Surveys was dismissed by the trial Judge and the court proceeded to determine the case based on the evidence before it. It ultimately found that the appellant was a bona fide purchaser; and that the respondent had failed to establish his proprietary interest.
ix.
On appeal, the Court of Appeal in overturning the decision of the trial court concluded that the oral application to call the Director of Surveys was properly rejected but curiously wondered why those who would have testified in answer to some of the gaps were either deliberately or inadvertently excluded from the proceedings either as parties or witnesses.
x.
From the totality of the material before it, the appellate court made the final conclusion that the suit property belonged to the respondent, thereby overturning the trial court.
xi.
In the present application, the applicant seeks leave to join the proceedings to address the Court as to the authenticity and origins of the titles to the suit property, in order to show that Plot No 287/3 granted to the respondent by the trial court is non-existent; and that the original parcel overtime has been subdivided in favour of third parties who were not privy to the suit before the superior courts below.
7.
Upon considering these averments, can it be said that the applicant’s Motion has met the threshold for admission as an interested party? We do not think he has. This is why.
i.
First, he has not established any definable personal interest or legal stake that is proximate enough to occasion any prejudice to him, if not joined in these proceedings.
ii.
The applicant has categorically stated that he only made the instant application after “receiving several queries from the Petitioner (appellant herein ) requesting the Ministry's intervention to confirm the origins of the title that it holds and for any correspondence that may exist at the Ministry's headquarters in Nairobi in respect of the Original Parcel”.
iii.
Pursuant to this invitation, it is apparent from the annextures to the affidavit in support of the application that the applicant, if admitted intends to present what would appear to us to be further evidence in the form of the government records held by various relevant state departments in respect of the suit property. That evidence runs into several pages of documentary evidence.
iv.
Is this not a case of leave to adduce further evidence through a third party camouflaged as an application informed by a genuine desire to be joined to assist the Court in reaching a just outcome? Both the trial court and the first appellate court based their decision on the material presented by the primary parties. A third party who is unlikely to be affected by the ultimate decision of this Court cannot present a new case independent of that of the primary parties. An application for joinder cannot be used as an avenue to attempt to fill gaps in any of the primary party’s cases.
v.
The applicant has not persuaded us that he will suffer personal prejudice if we do not grant this application.
vi.
Looking at the petition of appeal, the response, and the two judgments of the courts below, we entertain little doubt that the applicant’s participation in the proceedings would not be of any additional significance. The dispute between the primary parties, as it is, appears to us plain, and can be resolved without intervention by a third party.
vii.
Inevitably, on the basis of all that we have said, we come to the conclusion that none of the conditions for the grant of leave to be joined as an interested party has been satisfied.
viii.
We therefore find no merit in the application and accordingly dismiss it.
8.
Duly guided by our decision in Jasbir Singh Rai v Tarlochan Singh Rai, SC Petition 4 of 2012; [2014] eKLR, we exercise our discretion against an award of costs against the applicant.
9.
Having so found that this application lacks merit, we make the following orders:
i.
The Notice of Motion dated 2oth May 2024 is hereby dismissed.
ii.
We make no orders as to costs.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/37/eng@2024-08-02
Petition 17 (E021) of 2023,Janmohammed (SC) (Suing as the Executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi) & another v District Land Registrar Uasin Gishu & 4 others (Petition 17 (E021) of 2023 & 24 (E027) of 2022 (Consolidated)) [2024] KESC 39 (KLR) (2 August 2024) (Judgment),Consolidated,Supreme Court of Kenya,Supreme Court,"MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",2 August 2024,2024.0,Nairobi,Civil,"Zehrabanu Janmohammed (SC) (Suing as the Executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi)
1st Appellant
Rai Plywood (K) Limited
2nd Appellant
and
District Land Registrar Uasin Gishu
1st Respondent
Nathaniel K. Lagat
2nd Respondent
Susan Cherubet Chelugui & David K. Chelugui (Suing as the Administrators of the Estate of the Late Noah Kipngeny Chelugui)
3rd Respondent
The Registrar of Titles
4th Respondent
The National Land Commission
5th Respondent",[2024] KESC 39 (KLR),,"A. Introduction
1.
Before this court are two petitions, Petition No 17 (E021) of 2022 dated July 28, 2022 and filed on August 1, 2022, and Petition No 24 (E027) of 2022 dated August 19, 2022 and filed on August 24, 2022. They are brought under article 163(4)(a) of the Constitution, section 15(2) of the Supreme Court Act, and rules 3(5), 31, 32 & 39 of the Supreme Court Rules, 2020. The appellants seek to set aside the Judgment of the Court of Appeal (Kiage, M’Inoti & Mumbi Ngugi, JJ.A.) delivered on July 22, 2022, which in effect affirmed the Environment and Land Court (Ombwayo, J.) in Eldoret ELC Petition No 9 of 2014. By a consent order dated February 20, 2023 the two petitions were consolidated.
B. Background
2.
Sometime in 1965, NK Lagat and Partners acquired a parcel of land known as LR No 10492 (Grant IR No 17542 /1) measuring 3236 acres from Jacobus Hendrick Engelbretch. The partnership comprised five partners, including the Late Noah Chelugui, who died on 10th July 2005. The parcel of land was transferred to the partners for a consideration of Kshs 360,000 and a transfer duly registered on June 28, 1965. Thereafter, it was urged that by a consent granted by the Uasin Gishu Land Control Board on October 16, 1976, LR No 10492 was subdivided into six portions. Five portions were distributed among the five partners while the 6th portion was transferred to Huruma Company Limited. From this sub-division, it was argued that Eldoret Municipality/Block 15/10 was assigned to the Late Noah Chelugui. Subsequently, the said Eldoret Municipality/Block 15/10 was further subdivided into a number of parcels, and one such parcel is Eldoret Municipality/Block 15/239 situate in Uasin Gishu District measuring 53 acres (hereinafter the Suit property).","77.
After considering the parties’ respective cases as consolidated, the rival written and oral submissions in support thereof, and the authorities cited in illumination of the respective arguments, we have identified the following issues, the determination of which should dispose of the appeal herein.
1.
Whether this court has jurisdiction to determine the Appeal;
2.
Whether article 40 of the Constitution applies retrospectively;
3.
Whether the 2nd respondents ought to have moved the Environment and Land Court by way of a Civil Suit as opposed to a constitutional petition;
4.
Whether a constitutional claim of violation of property rights under article 40 of the Constitution, is subject to limitation under article 24 thereof, and section 7 of the Limitation of Actions Act;
5.
Whether the Court of Appeal erred in not considering and re-evaluating the evidence on record;
6.
Whether Noah Chelugui was the title holder of both LR 10492 and the Suit Property herein;
7.
Whether the 1st and 2nd appellants acquired valid title to the suit property;
8.
Whether the Court of Appeal disregarded its own finding relating to the Suit Property; and
9.
Reliefs, if any, available to the parties.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/39/eng@2024-08-02
Petition E011 of 2023,Kenya Airports Authority v Otieno Ragot and Company Advocates (Petition E011 of 2023) [2024] KESC 44 (KLR) (2 August 2024) (Judgment),Judgement,Supreme Court of Kenya,Supreme Court,"MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",2 August 2024,2024.0,Nairobi,Civil,"Kenya Airports Authority
Appellant
and
Otieno Ragot and Company Advocates
Respondent",[2024] KESC 44 (KLR),,"A. Introduction
1.
This is an appeal from the judgment and decree of the Court of Appeal at Nairobi (Ouko (P) (as he then was), Gatembu & Murgor, JJA) dated May 19, 2021. Being dissatisfied with the said judgment, Kenya Airports Authority (the appellant) successfully sought an order before the same court certifying the matter as one that raises matters of general public importance. Pursuant to the leave granted on March 17, 2023, the appellant filed the present appeal before this court on April 25, 2023.
2.
The appeal is predicated on the provisions of article 163(4)(b) of the Constitution. Principally, the issue(s) of general public importance raised in the appeal revolve around the question of assessment or taxation of instruction fees due to an advocate from a client on account of proceedings before the High Court pursuant to Schedule VI of the Advocates Remuneration Order. In particular, it entails a determination of firstly, how instruction fees of an advocate in an Advocate-Client Bill of Costs should be assessed/taxed where the Party-Party Costs relating to the same matter have been assessed, and a certificate of costs issued. Secondly, whether the Taxing Officer has room to exercise judicial discretion in the assessment of costs depending on the circumstances of each case.
B. Background
i. Factual history
3.
Some 54 individuals (original plaintiffs) instituted a suit in the High Court at Kisumu, HCCC No. 56 of 2009 (primary suit), against the appellant. The crux of their claim was that the appellant had compulsorily acquired their parcels of land which bordered the Kisumu International Airport for expansion of the said airport. They alleged that the appellant had failed to either compensate and/or adequately compensate them for the parcels, the developments thereon, the inconvenience caused as well as the current and future loss of profits. As a result, through an amended plaint dated 26th February 2010, the original plaintiffs averred that they were entitled to an average of Kshs 258 million each aggregating to Kshs 13,932,000,000 which they sought as compensation.
4.
In turn, the appellant instructed the firm of Otieno, Ragot & Co Advocates, (the respondent) to act for it in the primary suit. Pursuant to the appellant’s instructions, the respondent filed an Amended Defence dated March 3, 2010 denying all the allegations by the original plaintiffs and challenging the competency of the primary suit. Subsequently, the appellant vide a notice of motion dated March 30, 2010 applied for the primary suit to be struck out on two fronts. Firstly, the appellant claimed that contrary to Section 34 of the Kenya Airports Authority Act (cap 395 Laws of Kenya), the original plaintiffs had not served the appellant’s Managing Director with one month’s written notice of their intention to commence legal proceedings and the particulars of their claim prior to instituting the primary suit. Secondly, that by dint of section 29 of the repealed Land Acquisition Act (cap 295 Laws of Kenya) and section 75(2) of the former Constitution, the Land Acquisition Compensation Tribunal ought to have been the first port of call for the original plaintiffs, and only then could the High Court be rightly seized of an appeal against the Tribunal’s decision.
5.
By a ruling dated June 24, 2010, Karanja, J. agreed with the appellant and struck out the primary suit with costs. Thereafter, with the intention of having the costs of the suit for the appellant assessed by a Taxing Officer, the respondent lodged a Party-Party Bill of Costs dated 28th June, 201o in the primary suit pursuant to Schedule VI Part A of the Advocates Remuneration (Amendment) Order, 2006. However, the appellant alleges that the respondent filed the said bill without its instructions. Be that as it may, the Party-Party Bill of Costs sought cumulative costs of Kshs 151,658,583. Of significance, is that out of the aggregate costs, the bill sought Kshs 130,704,900 as instruction fees on the basis that the respondent was engaged to defend the primary suit.
6.
The instruction fees sought were based on the compensation of Kshs 13,932,000,000 claimed by the original plaintiffs. Eventually, the said bill was taxed by a Taxing Officer on July 15, 2010 at Kshs 151,650,000 and a certificate of costs issued thereto. The respondent did not seek to recover the taxed amount from the original plaintiffs, instead by a letter dated January 1, 2011 it informed the appellant of the option of levying execution against the original plaintiffs for the taxed Party-Party costs. However, in the same breath, the respondent also advised the appellant that due to the impecuniosity of the original plaintiffs, there was a high possibility that the appellant would have to meet the auctioneers’ fees, which would run into millions, even if the execution proved unsuccessful. As at the hearing of this appeal, the taxed Party-Party costs had not been recovered.
7.
It would appear that the respondent by a letter dated July 19, 2010 asked the appellant to settle a fee note of Kshs 227,476,921.38 attached thereto for the services the law firm had rendered. On the appellant’s part, it expressed its dissatisfaction with the amount stated in the fee note which it termed as excessive. This was duly communicated to the respondent and it resulted in a back and forth between the parties without any consensus as evinced by correspondence exchanged from July 19, 2010 to December 29, 2010. Ultimately, the respondent filed an Advocate-Client Bill of Costs dated February 24, 2011 pursuant to Schedule VI Part B of the Advocates Remuneration (Amendment) Order, 2006.","D. Analysis
42.
Having considered the pleadings, the impugned judgment, and the parties’ respective submissions, it is apposite to first address preliminary issues concerning this court’s jurisdiction on whether the appeal raises a matter of general public importance, and the award of interest which was set aside by the Court of Appeal.
43.
The respondent made heavy weather of this court’s jurisdiction or lack thereof, for that matter, to entertain the appeal on two aspects. First, we understood the respondent to contend that the appeal does not raise issues of general public importance. Rather, that it revolves around the interpretation and application of the Constitution, which falls within our appellate jurisdiction under article 163(4)(a) of the Constitution. Second, that in any event, neither the issues of interpretation and application of the Constitution nor the delineated issues of general public importance arose and/or were determined in the superior courts below.
44.
It is common ground that the appeal is anchored on our appellate jurisdiction under article 163(4)(b) of the Constitution. To put it differently, the appeal is before us following the certification by the Court of Appeal that it raises issues of general public importance that warrant our consideration. It is instructive to note that the respondent sought review of the said certification before this court vide SC Applic No E015 of 2023. Equally, it is not lost to us that the respondent raised more or less similar grounds in support of its motion for review.
45.
This court considered the said motion, the arguments advanced thereto and declined to review the certification by the Court of Appeal. By a ruling dated June 16, 2023, this court found the appeal does indeed raise issues of general public importance. Consequently, the respondent cannot at this stage be heard to claim that the appeal does not raise issues of general public importance. See this court’s decision in Muriithi (Suing as the Legal Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC, (Suing as the Executrix of the Estate of Hon. Daniel Toroitich Arap Moi) & another, SC Petition No 41 of 2018; [2023] KESC 61 (KLR).
46.
The other issue relates to the question of interest on taxed costs. It is clear, right from the appellant’s motion for certification at the Court of Appeal to the respondent’s motion for review of the certification before this court, that the issue of when interest on taxed costs accrues was never raised or delineated as a matter of general public importance. The parameters of this court’s jurisdiction with respect to an appeal under article 163(4)(b) are well settled. As this court appreciated in the aforementioned Muriithi Case, a litigant cannot expand such an appeal or introduce new issues beyond the parameters pursuant to which it was certified or admitted. On that basis, we decline the appellant’s invitation to pronounce ourselves on the said issue.
47.
Turning to the crux of the appeal we will deal with the issues that were certified as being of general public importance; firstly, the interpretation of the provisions of Schedule VI of the Advocates Remuneration Order; secondly, how instruction fees of an advocate in an Advocate-Client Bill of Costs should be assessed/taxed where the Party-Party costs relating to the same matter has been assessed, and certificate of costs issued; thirdly, whether a Taxing Officer has room to exercise judicial discretion in the assessment of costs depending on the circumstances of each case; and lastly what orders should issue.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02
Petition (Application) E007 of 2024,Krystalline Salt Limited v Water Resources Management Authority (Petition (Application) E007 of 2024) [2024] KESC 40 (KLR) (2 August 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",2 August 2024,2024.0,Nairobi,Civil,Krystalline Salt Limited v Water Resources Management Authority,[2024] KESC 40 (KLR),,"Upon Perusing the Notice of Motion dated 11th March 2024 and filed on 15th March 2024, pursuant to section 23A of the Supreme Court Act 2011, and rules 31 and 32 of the Supreme Court Rules 2020, seeking inter alia, stay of execution against the Judgment and Orders of the Court of Appeal (Musinga (P), Omondi & Ngenye, JJ.A) delivered on 23rd February 2024, pending the hearing and determination of the appeal, and any consequential orders; and
2.
Upon Reading the grounds on the face of the application and the supporting affidavit sworn by the applicant’s Chief Executive Officer, Hasmita Patel on 11th March 2024, wherein she contends that: the appeal is arguable with high chances of success (she restates 12 grounds set out in the Memorandum of Appeal to support this argument); unless the orders sought are granted, the appeal will be rendered nugatory, should the respondent execute its judgment of Kshs. 185,500,000, thereby forcing it to shut down its operations and sell its assets to meet the exorbitant judgment debt; likewise, depositing the judgment sum in an interest earning account would impede the applicant’s right of access to justice. Conversely, it is urged, there will be no prejudice suffered by the respondent, which can be compensated by way of costs should the appeal be dismissed; and it is in the interest of justice to grant the prayers sought; and
3.
Upon Considering the applicant’s submissions dated 11th March 2024, to the effect that the appeal upon which the application is anchored raises issues of constitutional interpretation and application, hence this Court is clothed with jurisdiction under Article 163(4)(a) of the Constitution and Section 15A of the Supreme Court Act. Further, that the Court’s jurisdiction to issue an order of stay of execution is donated by Section 23A of the Supreme Court Act as enunciated in, Board of Governors, Moi High School Kabarak & Anor v. Malcolm Bell; SC Application Nos. 12 and 13 of 2012; [2013] eKLR. Moreover, it is contended that the applicant has met the principles for grant of stay of execution established in, Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others; SC Application No. 5 of 2014 [2014] eKLR; and
4.
Upon Perusing the respondent’s replying affidavit sworn by the respondent’s Chief Executive Officer, Mohamed M. Shurie, on 25th March 2024, wherein he urges that this Court lacks the requisite jurisdiction to hear the Motion as the same is premised on an incompetent appeal. In particular, it is the respondent’s case that the appeal is improperly lodged under Article 163(4)(a) of the Constitution as it does not raise questions involving the interpretation or application of the Constitution. For emphasis, it is submitted that the applicant’s grievance entails a challenge on the quantum awarded; the application is an attempt to avoid payment of the judgment sum; the applicant has not demonstrated that it is unable to settle the sum awarded; and in any event, the appeal will not be rendered nugatory as the respondent is capable of refunding the judgment sum if the appeal is allowed; and
5.
Upon Considering the respondent’s preliminary objection dated 21st March 2024; submissions in support of the preliminary objection and in opposition to the application both dated 25th March 2024; restating the respondent’s challenge to this Court’s jurisdiction to determine both the application and appeal for failing to meet the jurisdictional threshold established in Lawrence Nduttu & 6000 Others v. Kenya Breweries Limited & Another, SC Petition No. 3 of 2012; [2012] eKLR. Concomitantly, the respondent urges that, there is no arguable appeal before the Court; the applicant intends to defeat the Judgment by winding up its operations while the appeal is pending determination; the applicant makes billions in profits hence the water use charges awarded by the trial court are negligible; and, contrary to its claim that the judgment debt will force it to shut down its operations, the applicant provided security of Kshs. 100,000,000 at the Court of Appeal, as a condition for the grant of stay; and
6.
Upon Reading the applicant’s supplementary affidavit in response sworn by Hasmita Patel on 27th March 2024 and rejoinder of even date, wherein she maintains that, issues of constitutional interpretation were at the center of determination by the superior courts below; it is not factual that the applicant makes billions in profits; the execution of the judgment sum will force the applicant to fold its operations affecting the livelihood of over 2800 employees; the judgment sum of Kshs. 185,500,000 was calculated based on erroneous estimates of the applicant’s production capacity, as opposed to actual production; and, prosecution of the appeal would be rendered impossible if execution is allowed. Furthermore, it is averred that the applicant is willing to give security by way of a bank guarantee to enable it pursue its appeal; and
7.
Upon Considering the applicant’s supplementary submissions dated 27th March 2024, wherein it reiterates its arguments on jurisdiction and further submits that the interpretation of Articles 2, 40, 42, 61, 62, 66, 67, 68, 69, 72, 209 and 260; and Section 7(1) of the Sixth Schedule to the Constitution, was in issue before the superior courts below. It cautions that contrary to the respondent’s argument, a question whether an appeal is arguable does not call upon the Court to interrogate its merits or make definitive findings, but to determine whether issues raised are worthy of ventilation on appeal. To buttress this assertion, it cites the case of George Boniface Mbugua v. Mohammed Jawayd Iqbal (Personal Representative of the Estate of the Late Ghulam Rasool Jammohamed) SC Application No. 7 (E011) of 2021; [2021] eKLR; and
8.
Noting that a preliminary objection has been raised by the respondent on the question whether this Court has jurisdiction under Article 163(4)(a) of the Constitution, it is our considered view that the challenge of our jurisdiction goes to the competency of the application for stay as well as the appeal. It is therefore apposite to deal with this issue in the first instance; and
9.
Considering that in their judgments, both superior courts below confined themselves to the issue whether the respondent had power under the Water Act 2002 and the Water Resource Management Rules to regulate use of sea water; and the applicant’s case was that if the State has the right to regulate sea water under Article 62(l) of the Constitution, it can only be exercised by the National Land Commission as opposed to the respondent; and
10.
Appreciating that this Court settled with finality the question of its jurisdiction to hear and determine appeals as of right under Article 163(4)(a) of the Constitution in the Lawrence Nduttu Case [supra], wherein it was held that;
“
(28)
The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4) (a).”
11.
Further Appreciating that in the case of Erad Suppliers & General Contractors Limited v. National Cereals & Produce Board, SC Petition No. 5 of 2012; [2012] eKLR, we clarified that:
“
[13A]
In our opinion, a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance, is to be resolved at that forum in the first place, before an appeal can be entertained. Where, before such a Court, parties raise a question of interpretation or application of the Constitution that has only a limited bearing on the merits of the main cause, the Court may decline to determine the secondary claim if in its opinion, this will distract its judicious determination of the main cause; and a collateral cause thus declined, generally falls outside the jurisdiction of the Supreme Court.”","We Now Determine as follows:
i.
Examining the record and Judgments of the superior courts, it is clear that the gravamen of the case before the Environment and Land Court was the payment of outstanding water use charges by the applicant in its commercial salt production; the questions determined by the court were whether the respondent had the power to regulate usage of sea water, and if so, whether the applicant was liable to pay the charges sought and the quantum thereof; which was a factual examination of the volume of water abstracted from the sea over the period in question;
ii.
Similarly, in its Judgment, the Court of Appeal interrogated the issue, whether the respondent was entitled to recover any amount for use of sea water, consequent upon which it largely affirmed the trial court and applied rules 107 and 114 of the Water Resource Management Rules 2007 to reduce the quantum awarded;
iii.
Flowing from the above, we are convinced that no contentious question of constitutional interpretation or application arose for determination by the superior courts below to warrant the exercise of this Court’s jurisdiction as of right under Article 163 (4)(a) of the Constitution. The mere pronouncement that under Articles 62 and 260 of the Constitution the territorial sea vests in the National Government is a restatement of the provisions of the Constitution, which, does not meet the threshold established in the Lawrence Nduttu Case;
iv.
Consequently, guided by our findings in Lawrence Nduttu and Erad Suppliers [supra], we hold that this Court lacks jurisdiction to entertain the petition of appeal and the attendant application for stay of execution, both dated 11th March 2024 and filed on 15th March 2024; and
v.
Having so found, the other issues from the parties’ rival submissions must fall by the way side.
13.
Consequently, and for the reasons aforesaid, we make the following Orders:
i.
The Notice of Preliminary Objection by the respondent dated 21st March 2024 and filed on 26th March 2024 is hereby upheld;
ii.
The applicant’s Notice of Motion dated 11th March 2024 and filed on 15th March 2024 is hereby dismissed;
iii.
The Petition of Appeal No. E007 of 2024 dated 11th March 2024 and filed on 15th March 2024 is hereby struck out for want of jurisdiction;
iv.
We hereby direct that the sum of Kshs. 6,000.00 deposited as security for costs in the appeal herein be refunded to the applicant; and
v.
There shall be no order as to costs.
It is so Ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/40/eng@2024-08-02
Petition E030 of 2023,Wanga v Republic (Petition E030 of 2023) [2024] KESC 38 (KLR) (2 August 2024) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, N Ndungu, W Ouko",2 August 2024,2024.0,Nairobi,Criminal,Wanga v Republic,[2024] KESC 38 (KLR),,"A. Introduction
1.
This appeal challenges the decision of the Court of Appeal upholding the conviction and a sentence of 30 years imprisonment of the appellant, Goddrick Simiyu Wanga, on two counts of robbery with violence.
B. Background
2.
The appellant together with 7 others were tried, convicted, and sentenced before the Senior Principal Magistrate Court at Kilifi with two counts of the offence of robbery with violence. The prosecution presented evidence to the effect that on 4th December 2013 at Bofa area in Kilifi County, the appellant and his confederates, while armed with a dangerous weapon, namely a pistol, robbed Yul Wenger (PW1) and his wife, Heike Wenger (PW2) of personal effects valued in total at Kshs. 12,300,000/- and that immediately before the time of such robbery, threatened to use personal violence against their victims.
In this judgment, we shall mainly be concerned with the appellant, as the rest of the persons convicted with him have not appealed to this Court.","F. Analysis and Determination
Jurisdiction of the Supreme Court
31.
We start by observing that the appellant in bringing the petition has not specified under what provision of the Constitution his case is anchored. The Petition is filed pursuant to “Supreme Court Rule 39(1)” (sic) which provides for the Form of Petition of an appeal. It is only at paragraph 14 of the written submissions that the appellant states that, “… this Honourable Court is obligated to exercise its jurisdiction under article 163(4)(a) to correct and remedy these failures by the criminal justice system to apply the Constitution…”. It is from this statement that we guess that the appeal has been brought pursuant to article 163(4)(a) of the Constitution. In a long line of cases, we have repeatedly cautioned advocates and litigants who desire to come to this court that, given the specialized nature of this court’s jurisdiction the correct law under which the jurisdiction is sought must be specifically invoked and stated. Though this should be clear, it however bears restating what we said in the Hermanus Phillipus Steyn vs. Giovanni Gnecchi-Ruscone [2013] eKLR, and reiterated in Nasra Ibrahim Ibren vs. Independent Electoral and Boundaries Commission & 2 others [2018] eKLR as follows;
“It is trite law that a court of law has to be moved under the correct provisions of the law.” In this court, this is not an idle requirement but has its rationale anchored in the ‘specialized’ nature of the jurisdiction of the Supreme Court as provided in article 163(3) of the Constitution. Appeals to this court from the Court of Appeal are therefore not as a matter of course as the Supreme Court was not established as another tier of court in the judicial hierarchy. Not every appeal from the Court of Appeal is also appealable to this court.”
32.
Since the two avenues of the appellate jurisdiction of this Court under article 163(4)(a) and (b) of the Constitution are distinct, either as of right” on the constitutional issues; or on “matters of general public importance,” respectively, counsel or a litigant is under strict obligation to categorize his or her case, indicating the constitutional or legal category under which he or she is moving the court. For this reason, it has become a matter of practice, for the court to independently satisfy itself that an appeal is properly lodged and that it has jurisdiction before it can entertain it.
33.
In the instant appeal, the respondent in its replying affidavit contends that the violations of article 50(1) and (2) of the Constitution were not issues before both the first and second appellate courts and therefore cannot be presented before this court for determination for the first time. For his part, the appellant urges that this appeal is premised on article 163(4)(a) of the Constitution and raises issues that revolve around the interpretation and application of articles 49, 50(1) and (2) of the Constitution and specifically regarding the violations of the appellant’s constitutional rights. Moreover, the appellant argues that despite these issues being raised for the first time before this court, by their very nature, being constitutional, nothing stops this court, an apex court from entertaining and determining such questions.
34.
It is necessary to restate that, to admit an appeal under article 163(4)(a) of the Constitution, the following principles apply, in so far as they are relevant to this appeal:
i.
On the issue of jurisdiction, we stated in Aviation & Allied Workers Union Kenya v Kenya Airways & others; SC Application No 50 of 2014; [2015] eKLR that where a court’s jurisdiction is objected to by any party to the proceedings, such an objection must be dealt with in limine as a preliminary issue, before the meritorious determination of any cause, even where the objection has been argued in the appeal itself, we may add.
ii.
In Samuel Kamau Macharia v Kenya Commercial Bank Limited & 2 others, SC Application No 2 of 2011; [2012] eKLR, we explained that a court’s jurisdiction flows from either the Constitution or legislation or both; and that a court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by the Constitution or law.
iii.
Under article 165(3)(d) of the Constitution, the High Court has original jurisdiction to hear any question respecting the interpretation of the Constitution. The Supreme Court in its appellate jurisdiction under article 163(3), subject to clauses (4) and (5) and article 163(4)(a) is the final Court on matters involving the interpretation and application of the Constitution arising from the decision of the Court of Appeal. See In the Matter of the Interim Independent Electoral Commission (Applicant) (Constitutional Application 2 of 2011) [2011] KESC 1 (KLR).
iv.
Article 163(4) of the Constitution is not a thoroughfare for all intended appeals from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution or those that can be said to involve matters of general public importance will be entertained by the Supreme Court. It is not the mere allegation in pleadings by a party that clothes this Court with jurisdiction. See Lawrence Nduttu & 6000 Others vs. Kenya Breweries Ltd & Another, SC Petition No 3 of 2012; [2012] eKLR, Samuel Kamau Macharia and Another vs. Kenya Commercial Bank and 2 Others, SC Application No 2 of 2011; [2012] eKLR, among many other decisions.
v.
The appeal must originate from a decision of the Court of Appeal in which the question of interpretation or application of the Constitution was at play. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a).
vi.
However, in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Petition No 2 of 2014; [2014] eKLR, it was clarified that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the Court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.
vii.
In addition, a party must indicate to this Court in specific terms, the issue requiring the interpretation or application of the Constitution and must signal the perceived difficulty or impropriety with the Appellate Court’s decision. See Zebedeo John Opore v Independent Electoral and Boundaries Commission & 2 Others [2018] eKLR.
viii.
The Supreme Court retains the discretion to determine what matter is appealable to it under article 163(4)(a), always bearing in mind that such a matter must be founded on cogent issues of constitutional controversy to warrant its input. See Gladys Wanjiru Munyi v Diana Wanjiru Munyi [2015] eKLR.
35.
Now, applying these principles to the instant appeal, it should be noted that the appellant was successfully prosecuted for the offence of robbery with violence and accordingly sentenced to death. His conviction was upheld by the High Court but the death sentence was set aside and substituted with a custodial sentence of 30 years imprisonment. On a second appeal to the Court of Appeal, the appellant’s conviction was upheld and the substituted sentence affirmed. The conviction of the appellant by the trial court as upheld by the High Court and the Court of Appeal was based on identification and on circumstantial evidence premised on the doctrine of recent possession. Given the nature of the pleadings and proceedings before the trial court and on the other hand, the decisions of the two superior courts below, we cannot, in our assessment of the law say that the issues concerned the application or interpretation of the Constitution. Rather, it was an ordinary case of robbery with violence, argued as such on facts. We reiterate, as conceded before us by the appellant, that the allegations of constitutional controversy are being canvassed for the first time before this court.
36.
The appellant having properly identified precisely the relevant Articles of the Constitution which in his view were violated by the respondent, he was, in addition, expected to convince us that the subject of this appeal was the same issues in controversy and around which both the High Court and the Court of Appeal based their respective decisions. The decision being challenged in this appeal had nothing to do with the interpretation or application of articles 49 and 50 of the Constitution. The appellant has not demonstrated that the Court of Appeal’s reasoning, and its conclusions took a trajectory of constitutional interpretation or application. The appellant has attempted to morph his case from an everyday trial for the offence of robbery with violence to one of violation of his constitutional rights. In our considered view, this appeal, is nothing but an effort to take a second bite at the cherry. It presents neither exceptional circumstances nor an opportunity for the Court to provide interpretive guidance on the Constitution.
37.
For the aforementioned reasons, we reach the inescapable conclusion that the appellant has not satisfied the structures enunciated by the cases enumerated above, hence the Court lacks jurisdiction to determine the appeal. It fails and accordingly we down our tools at this stage. This is the same position we held, after hearing similar arguments, in Elvis Opee Ndayara v Republic, SC Criminal Appeal No 11 of 2016 (unreported) where we stated as follows:
“
(19)
Having read the Petition before us, the submissions by parties and having orally heard the appellant and Mr Omirera for the respondent, we have no doubt in our minds that whereas the appellant has clothed his Petition with the constitutional garb and invoked articles 25, 27 and 47 of the Constitution, the Appeal is no more than a further Appeal from the Court of Appeal on matters of fact. Indeed the Appellant, while re-litigating matters already dismissed by the two appellate Courts, has also introduced new matters before us such as the alleged infringement of his article 25 rights by the Court of Appeal.” [Our Emphasis]
38.
But even as we down our tools, we consider it paramount to restate the following for the sake of posterity and the development of jurisprudence, in terms of this court’s past decisions on similar cases. In this appeal, we have observed that the High Court substituted the death sentence with a custodial sentence of 30 years imprisonment ostensibly on the authority of our decision in the Muruatetu Case. This sentence was later affirmed by the Court of Appeal on second appeal, despite the court acknowledging our decision in the Muruatetu Case that the mandatory nature of the death sentence only applied to murder convictions and did not extend to robbery with violence.
39.
In terms of article 163(7) of the Constitution, we expect all Superior and Subordinate Courts, without exception to follow the noticeably clear guidelines issued in the Muruatetu Directions, where we elucidated in the passage below what was intended to be the ratio decidendi in the Muruatetu Case:
“
In the meantime, it is public knowledge, and taking judicial notice, we do agree with the observations of both Mr Hassan and Mr Ochiel, that while the report of the Task Force appointed by the Attorney General was awaited, courts below us have embarked on their own interpretation of this decision, applying it to cases relating to section 296(2) of the Penal Code, and others under the Sexual Offences Act, presumably assuming that the decision by this court in this particular matter was equally applicable to other statutes prescribing mandatory or minimum sentences. We state that this implication or assumption of applicability was never contemplated at all, in the context of our decision.” [Our Emphasis]
We say no more, save to recapitulate that our decision in the Muruatetu Case did not generally invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act, or any other statute. The decision in the Muruatetu Case applies only with respect to the mandatory nature of the death sentence under sections 203 and 204 of the Penal Code and no parallel ought to be drawn beyond that statement.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/38/eng@2024-08-02
Petition (Application) E010 of 2024,Dock Workers Union & another v Portside Freight Terminals Limited & 10 others (Petition (Application) E010 of 2024) [2024] KESC 35 (KLR) (26 July 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",26 July 2024,2024.0,Nairobi,Civil,Dock Workers Union & another v Portside Freight Terminals Limited & 10 others,[2024] KESC 35 (KLR),,"This ruling is intended to dispose of two similar motions for conservatory and injunctive orders dated May 7, 2024 and May 6, 2024 filed by Dock Workers Union (the 1st applicant) and Okiya Omtatah Okoiti (the 2nd applicant), respectively.
2.
Apart from the two applications before us, it is instructive to note also that two appeals being Petition No E010 of 2024 at the instance of the 1st applicant and Petition No E011 of 2024 by the 2nd applicant, have been lodged in this Court’s Registry against the Court of Appeal’s judgment in Civil Appeal No E130 of 2023 dated February 23, 2024. The two appeals were consolidated by a consent order recorded by this court on May 17, 2024, wherein Petition No E010 of 2024 was designated as the lead file.
3.
Upon Reading the two aforesaid Notice of Motions expressed to be brought pursuant to sections 23A and 24 of the Supreme Court Act and rules 3, 31 and 32 of the Supreme Court Rules, 2020 for orders, inter alia that pending the hearing and determination of the consolidated appeal, the Court be pleased to issue:
i.
A conservatory order restraining the 1st, 2nd and 3rd respondents from constructing and or developing a grain handling facility and island berth at G- Section Area, Kenya Port Authority, Port of Mombasa pursuant to the license and wayleave granted by the 4th respondent on August 2, 2021;
ii.
An order of temporary injunction restraining the 1st, 2nd and 3rd respondents, its employees, agents, servants, affiliates and/or subsidiaries from undertaking and/or initiating any work pursuant to the license and wayleave agreement for the development of a grain handling facility and development of an island berth at G- Section Area, Kenya Port Authority, Port of Mombasa issued on August 2, 2021; and
iii.
Costs of this application be borne by the respondents; and
4.
Upon Considering the supporting affidavit sworn on April 24, 2024 by the 1st applicant’s Secretary General, Simon Sang, together with their written submissions dated May 7, 2024 and the supporting affidavit of Okiya Omtatah Okoiti, the 2nd applicant, and his written submissions dated May 9, 2024, whose combined effect is that: the procurement process and award of the license and wayleave to the 1st respondent for the construction and development of a grain handling facility and island berth at G- Section Area Kenya Port Authority, Port of Mombasa was contested; in view of the nature and magnitude of the project in question, it was improper to resort to the “Specially Permitted Procurement Procedure” under section 114A of the Public Procurement and Asset Disposal Act (PPDA) to award the execution thereof to the 1st respondent; the High Court declared the procurement process a nullity for the reason that the process amounted to single sourcing, while the Court of Appeal overturned the declaration, in effect giving the procurement process a clean bill of health; the consolidated appeal as framed raises arguable issues for determination among them, whether the procurement process undertaken by the 4th respondent met the minimum threshold of articles 10, 201 and 227 of the Constitution, which lays down national values and principles of governance, principles of public finance, guidelines on procurement of public goods and services. In particular, the 1st applicant submits that the process adopted by the 4th respondent was not fair, equitable, transparent and competitive. The 2nd applicant, for his part, argued that the procurement process was discriminative of the 6th to 10th respondents; and that the appeal is not frivolous since it raises vital and arguable points of law on the violation of the Constitution and other procurement laws; and
5.
Furthermore,on the nugatory aspect, the applicants are apprehensive that should the conservatory orders sought herein be denied, the 1st respondent shall proceed to construct and complete the grain bulk handling facility; that since funding is already disbursed and spent, demolishing the facility will not be an option and is irreversible; that the Portside Companies (1st to 3rd respondents) both before the Court of Appeal and in opposition to this application have indicated the urgency for the commencement of the project and decried the delay caused by the application; that they have entered into credit and financing arrangements in addition to obtaining the relevant statutory approvals and licenses all of which are time bound; consequently, if the orders sought are not granted, the substratum of the appeal when finally listed and heard will be rendered nugatory, a mere academic exercise; and finally, that there is sufficient public interest element in the consolidated appeal as it touches on the procurement process in a public body. For these reasons, the 1st and 2nd applicants urge that they have met the threshold for issuance of the orders sought, as set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Civil Application No 5 of 2014; [2014] eKLR; and
6.
Noting the 1st applicant’s affidavit sworn on May 27, 2024 by Simon Sang, as well as submissions filed on even date in support of the 2nd applicant’s Motion dated May 6, 2024 wherein the 1st applicant reiterates the arguments in its supporting affidavit and submissions in its own Motion; and the 2nd applicant’s replying affidavit sworn on May 28, 2024 by Okiya Omtatah Okoiti as well as submissions filed on even date in support of the 1st applicant’s motion dated May 7, 2024; and
7.
Further Noting the 11th respondent’s affidavit sworn on May 31, 2024 by Emily Kinama, the 11th applicant’s Litigation Manager with its submissions dated June 2, 2024 in support of both motions to the effect that: the appeal is arguable and not frivolous; the court must allow parties to ventilate the public procurement issues raised to their logical conclusion; if the construction proceeds, the appeal will be rendered nugatory and it is in public interest that the court preserves the integrity of the appeal as it concerns public procurement; accordingly, it urges the court to issue the orders; and","Upon reviewing the Portside Companies’ (1st, 2nd and 3rd respondents) replying affidavit sworn on June 5, 2024 by Yusuf Abubakar, the Director of the 3rd respondent, on behalf of the 1st and 2nd respondents, as well as their submissions dated June 5, 2024 in opposition to both Motions to the effect that: the applicants’ consolidated appeal is neither arguable nor will it be rendered nugatory if the reliefs sought are not granted; to the contrary, they submit, the granting of the conservatory orders will further result in delaying the implementation of the project thereby strengthening the present monopoly in the grain handling sectors, resulting in turn to higher food costs not to mention the effect on national food security which is the very premise for the granting of permission by the 4th respondent through the “Specifically Permitted Procurement Procedure” which is recognized in law; that it would be unfair, unjust and irrational for a different set of administrative procedures to be applied in the instant case particularly considering that it is common ground that a second facility is an operational necessity; that the project is actually being undertaken on private land belonging to Portside Companies and the notion that Kenya Ports Authority (KPA), the 4th respondent, awarded Portside Companies a tender to develop and construct a second grain handling terminal as found by the High Court was baseless and without supporting evidence; to the contrary, they submit, this was a private investment made by Portside Companies to be undertaken on its own private property and an island berth off the G-Section area which would be common user by any member of the public unlike the current arrangement for the first entity licensed to handle bulk grain; and that they were equally entitled to the grants of way-leaves and licenses. In any event, it is their position that should the appeal eventually succeed, any overhead conveyor system and the island berth developed by Portside Companies would easily be de-operationalised at no cost to KPA. Whichever way it is considered, they maintain, KPA and by extension the public, stand to gain immensely; and
9.
Further,as regards public interest, Portside Companies posit that from the KPA technical report, KPA stands to earn revenues in excess of Kshs 1 billion annually; that in addition to revenue lost over the last couple of years, further delays will cost KPA close to Kshs 1 billion annually in lost revenue; that no security for any loss sustained by the public through KPA is being offered by the applicants yet they profess to advert public interest; and that should the appeal not succeed, KPA and the public stand to lose substantially which is not in public interest. They admit as alleged by the applicants that Portside Companies have already invested substantial sums, entered into credit and financing arrangements and obtained time-bound statutory approvals. Given the foregoing, they submit that it is in the interest of justice that the conservatory reliefs sought be declined; and
10.
Cognizant that during case management KPA, a key party, though on record, indicated through its counsel that it would not participate in the appeal and instead opted to silently observe from the sidelines; and
11.
Having Consideredthe applications, affidavits and rival arguments summarized in the preceding paragraphs we now opineas follows:
i.
To entertain these applications, we must be satisfied in the first place that the consolidated appeal is itself properly before the court, to clothe it with jurisdiction. From the record, it is apparent that the two petitions lodged in the High Court alleged contravention of fundamental rights and freedoms under Articles 10, 27, 47, 201 and 227 of the Constitution and sought such constitutional reliefs as a declaration that the decision to grant Portside Companies the sole right to implement the second bulk grain facility through Specially Permitted Procurement Procedure under section 114A of the PPDA was in violation of the aforementioned provisions of the Constitution.
ii.
This question remained the predominant theme in the decision of the High Court that triggered the first appeal to the Court of Appeal. The Court of Appeal’s judgment was similar on this very question where that court asked and answered the question whether the trial court erred in holding that the invocation of the Specially Permitted Procurement Procedure under section 144A of the PPDA violated the Constitution.
iii.
Based on the foregoing, we entertain no doubt that both the appeals, brought pursuant to article 163(4)(a) of the Constitution and the present motions are properly before us.
iv.
What is sought in the two motions before us are interim reliefs. Conservatory orders are tools of preservation intended to protect and safeguard the substratum of the petition of appeal, in this case, the construction of a second bulk grain terminal at the Port of Mombasa, so that the consolidated appeal is not rendered nugatory. Conservatory orders therefore serve to offer short-term relief so as not to expose the Constitution or the appellant to preventable perils pending the determination of the dispute.
v.
A conservatory order today is a constitutional relief, specifically provided for under article 23 of the Constitution, grantable as a matter of judicial discretion.
vi.
Conservatory orders have a ‘more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies’ as it is meant to secure the enforcement of the provisions of the Constitution and to also uphold the adjudicatory authority of the court, so that the authority conferred on the courts is not exercised in vain, hence the need to keep the subject matter in dispute in situ. See Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR.
vii.
The nature and principles to be considered before this court can grant a conservatory order or a temporary injunction have been crystallized through a long line of this court’s judicial pronouncements, the leading authority being, Gatirau Peter Munya v Dickson Mwenda Kithinji (supra). Those principles are:
a.
The Appeal is arguable and not frivolous:
b.
Unless the orders sought are granted, the appeal were it to eventually succeed, would be rendered nugatory:
c.
That it is in public interest that the conservatory orders be granted.
viii.
The question of whether an appeal is arguable, does not call for the interrogation of the merit of the appeal, and the court, at this stage must not make any definitive conclusions of either fact or law. An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully at the hearing before the court. Even one arguable point is sufficient to meet this test.
ix.
On the nugatory aspect, the concern is whether what is sought to be preserved if allowed to happen is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved. See the decision of the Court of Appeal in Stanley Kangethe Kinyanjui v Tony Ketter & 5 others, Civil Application No 31 of 2012; [2013] eKLR.
x.
As a third ground, this court in considering an application for conservatory orders cannot ignore the impact of such orders beyond the parties to the case should the order be granted or denied. Consequently, the court will make a general inquiry as to where the public interest lies, considering the parties’ respective rights. All the three conditions, including the third principle, we stress, must be met for an application for conservatory orders to succeed for the reason that conservatory orders have a public law connotation as earlier noted.
xi.
Applying these principles to the arguments presented in affidavits and written submissions, we have no difficulty in finding that the issue of whether the procurement process undertaken by the 4th respondent met the minimum threshold of a procurement contemplated under the provisions of articles 10, 201 and 227 of the Constitution and various provisions of the PPDA warrants this Court’s consideration. Among other reasons, this single arguable ground suffices.
xii.
On the nugatory aspect, the issue is whether what is sought to be preserved by a conservatory order is reversible. It is common factor that the project in question involves massive capital investment estimated to cost millions of dollars. In their replying affidavit, Portside Companies have estimated their investment to be in the region of USD 45 Million.
xiii.
It has been averred for Portside Companies that they have already invested substantial sums and, entered into credit and financing agreements and obtained statutory approvals and licences that are time bound, pointing to the companies’ readiness to commence the construction of the project, if not stopped.
xiv.
It is the process of awarding that project to Portside Companies that is under challenge in the consolidated appeal presently pending hearing and determination on merit by this court. In an application like the one before us, it is the duty of the court to balance the rights of parties; between the applicants’ right of appeal to this court and that of Portside Companies that have a judgment in their favour, and whose fruits they are presently entitled.
xv.
Bearing these factors in mind, we are of the view that should Portside Companies proceed to implement the project, the appeal will be rendered nugatory. In any event, at this stage, we are of the view that a conservatory order will, not only preserve the status quo but also save Portside Companies themselves from nugatory expenditure should the appeal succeed. The inconvenience and delay that may be occasioned to them can be compensated by an award of costs. The order prayed for being temporary in nature is not anticipated to last for long going by this court’s record of hearing and disposal of appeals, nothing close to nearly three years, the period the project has stalled following the challenge in the High Court of the procurement process and the award of the licence in Mombasa Constitutional Petition E045 of 2021. To obviate any further delay and expense to Portside Companies, and in view of the importance of the project in question to the economy of this country, it is directed that the Registrar shall expeditiously finalize case management procedures for the consolidated appeal to be listed for hearing without delay.
xvi.
From the totality of the material before us strictly in respect of these applications, considering that the dispute revolves around public procurement, we believe that the public interest will be served when competing constitutional rights are preserved.
xvii.
Accordingly, the order which commends itself to us as the appropriate relief in the circumstances is to preserve the subject matter pending the listing, hearing and determination of the consolidated appeal.
xviii.
We are of course alive to the fact that, while the 2nd applicant sought only conservatory orders, the 1st applicant sought both conservatory and temporary injunctive orders. Having reached the conclusion that, the conditions for the grant of conservatory orders have been met, we find no purpose to consider the prayer for temporary injunction.
xix.
On costs, the award of the same is discretionary and follows the principle set out by this Court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. In the exercise of our discretion, we direct that the costs of the motions shall abide the outcome of the consolidated appeal.
11.
Consequently, and for the reasons aforestated, we make the following Orders:
i.
The 1st applicant’s Notice of Motion dated May 7, 2024 and filed on May 15, 2024; and the 2nd applicant’s Notice of Motion dated May 6, 2024 and filed on May 17, 2024 are hereby allowed in the following terms:
a.
Pending the hearing and determination of the consolidated appeal herein, a Conservatory Order is hereby issued restraining the 1st, 2nd and 3rd respondents from constructing and/or developing a grain handling facility and Island Berth at G- Section, Area belonging to Kenya Ports Authority, Mombasa pursuant to the license granted by the 4th respondent on August 2, 2021.
b.
Costs of the two motions shall abide the outcome of the consolidated appeal.
In view of the public interest in the matter, the delay so far experienced as well as the nature of project in question, we direct that the consolidated appeal, Petition No E010 of 2024 and Petition No E011 of 2024,be expeditiously set down for hearing as soon as the Court diary permits.
It is so ordered",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/35/eng@2024-07-26
Application E014 of 2024,Freedom Limited v Mbarak (Application E014 of 2024) [2024] KESC 36 (KLR) (26 July 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko",26 July 2024,2024.0,Nairobi,Civil,Freedom Limited v Mbarak [,[2024] KESC 36 (KLR),,"Upon considering the Petition of Appeal No E009 of 2024 dated 20th March 2024 and filed on even date which is brought pursuant to Article 163 (4) (a) of the Constitution, Section 3A of the Supreme Court Act, CAP 9B of 2011, Rules 3 (5), 31 (1) (a) & (2) and 38 of the Supreme Court Rules, 2020 and Paragraph 34 of the Supreme Court (General) Practice Directions, 2020 in which the Applicant challenges the entire Judgment of the Court of Appeal delivered on the 23rd February 2024 and the resultant Order subsequently issued on 5th March 2024 in Civil Appeal No E028 of 2022; and
2.
Upon perusing the Notice of Motion dated 22nd March 2024 and filed on even date which is the subject of this Ruling and brought pursuant to Sections 3A, 23A and 24 of the Supreme Court Act, CAP 9B of 2011 and Rules 3 (5) and 31(6) of the Supreme Court Rules, 2020, wherein the applicant seeks an order of stay of execution of the said Judgment and Order pending the hearing and determination of Supreme Court Petition No E009 of 2024 between the parties herein; and
3.
Upon perusing the supporting affidavit sworn by Harji Govind Ruda, the Director of the applicant on 21st March 2024, considering the grounds in support therein mainly that the applicant has met the threshold for grant of stay of execution and the supplementary affidavits sworn thereto on 9th and 24th April 2024 in response to the respondent's reply; and
4.
Further, upon considering the written submissions by the applicant dated 21st March 2024 and further submissions dated 9th and 24th April 2024 to the effect that the applicant is apprehensive that pursuant to the Order under challenge, the Respondent will, in the absence of an order of stay, forcibly evict it from the suit property in dispute being Plot Number 1948 (Original Number 412/10) Section V Mainland North as delineated on Land Survey Plan Number 223946 measuring 376 Ha (approximately 929.1 acres); and that the structures standing on the suit property will similarly be demolished in compliance with the aforementioned Order to the detriment of the applicant who claims to be the registered owner; that the appeal is arguable and the denial of an order of stay will render the appeal nugatory; and that it is in the public interest to grant the relief sought. It is also urged that the Court’s jurisdiction under Article 163(4)(a) of the Constitution has been properly invoked as the appeal challenges the interpretation and application of Articles 40, 47, and 50(1) of the Constitution by the Court of Appeal; and in any event, the Court of Appeal directly invoked the provisions of the Constitution or its decision took a trajectory of constitutional interpretation and application of Article 40 thereby invalidating the applicant’s title to the suit property; and
5.
Noting that the respondent in his replying affidavit sworn on 28th March 2024, the Notice of Preliminary Objection, the Grounds of Opposition of even date, and the written submissions all dated 2nd April 2024 are opposed to the application on the grounds that this Court lacks jurisdiction to entertain the application under Article 163(4) of the Constitution; that neither the Supreme Court nor the Court of Appeal has certified that a matter of general public importance is involved in the appeal; that no question of constitutional interpretation or application was integrally linked to the dispute before the trial court or in the Court of Appeal; that the reference to Article 40 by the Court of Appeal was peripheral and did not have a substantial bearing on the merits of the case before that court; that the Court of Appeal only cited Article 40 of the Constitution in tandem with this Court’s findings relating to root of title in the recently decided cases of Rutongot Farm Ltd v Kenya Forest Service & 3 others (Petition 2 of 2016) [2018] KESC 27 (KLR) and Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR); and that the appeal clearly only challenges the merits of the judgment of the Court of Appeal relating to ownership of the suit property; and
6.
Further noting that the applicant has filed Petition No E009 of 2024 as is required by Rule 31(2) of the Supreme Court Rules, 2020 and in terms of this Court’s long line of decisions, for example Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 others; SC Petition No 27 of 2014; [2014] eKLR, and Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe & 3 others, Election Petition No 38 of 2018; [2019] eKLR, among others.","It is almost an every day [common] practice of this Court to determine the question whether its jurisdiction has been properly invoked under Article 163(4) of the Constitution. The applicant has come as of right under Article 163(4)(a). This Article has likewise been the subject of numerous judicial pronouncements by the Court. The leading authority being Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another; SC Petition No 3 of 2012; [2012] eKLR, where we explained our jurisdiction under Article 163(4)(a) as follows:
“
This Article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court.
The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum.” [Our Emphasis].
8.
Also, we emphasized in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others; SC Petition No 10 of 2013 [2014] eKLR and Gatirau Peter Munya v Dickson Mwenda & 2 others; SC Application No 5 of 2014 [2014] eKLR that an appeal lies to this Court under Article 163(4)(a) if the issues placed before it involves the interpretation and application of the Constitution and had formed the basis of arguments for the determinations before the superior Courts below.
9.
We note from the outset that this litigation began in 2015 with the institution of Constitutional Petition No 58 of 2015 (Freedom Limited v The Chief Land Registrar & 2 others) in which the applicant had sought a declaratory order to the effect that failure by the Chief Land Registrar and the County Land Registrar, Mombasa County to supply it with an official certificate of search together with other particulars in respect of the title to the suit property was an infringement of its rights under Article 35 of the Constitution and Section 34 of the Land Registration Act, CAP 300 of 2012. The orders were granted. Upon perusal of the documents in the applicant’s possession, the Land Registrar was satisfied that the applicant was the true proprietor of the suit property and proceeded to construct the land registry records based on the documents and records presented by the applicant.
10.
The dispute was escalated by the filing of Environment and Land Case No 358 of 2016 in the Environment and Land Court by the applicant who sought to preserve its ownership and possession of the suit property from any form of interference by the respondent. The applicant expressly pleaded that its title in respect of the suit property was “indefeasible save for as provided in law and its proprietary and other rights were protected pursuant to the provisions of the Constitution”; and that the continued wrongful and unlawful actions of the respondent with regard to the suit property amounted to interference with the applicant’s “proprietary rights and interest including its rights of possession and occupation”. It asked the trial court to declare that the respondent had “no right or interest in or over” the suit property which it claimed was registered in its name in 2010. It also prayed for a permanent injunction to restrain the respondent from interfering with its “proprietary rights and quiet occupation and possession” of the suit property or dealing with the suit property “under the pretext that he has any right or interest therein”.
11.
The respondent’s claim to the suit property as far as we can gather from his defence and counterclaim was that his late grandfather purchased the suit property as long ago as 1978 from the then-registered owner; that he did not subdivide it; that his grandfather died before it was formally transferred to him (grandfather); that upon realization of this omission, he (the respondent) attempted to register the transfer in vein as he had not obtained a grant of letters of administration to the estate of his deceased grandfather; that had the applicant undertaken due diligence at the time the suit property was allegedly transferred to it, it would have been apparent that the suit property was still registered in the name of the person who sold it to his grandfather.
12.
N. Matheka, J, was persuaded after analyzing the rival positions, that the applicant was registered as proprietor of the suit property on 12th November 2010 following a transfer from the original owners; that it was a bona fide purchaser; that the respondent, on the other hand, had failed to establish his proprietary interest over the suit property. As a consequence, thereof, the learned Judge declared that the respondent had no right or interest in or over the suit property which she declared to belong to the applicant. As a result, the respondent was restrained by an order of permanent injunction from interfering with the applicant’s “proprietary rights and quiet occupation and possession of the property”.
13.
Of the six grounds isolated by the Court of Appeal for its determination, the one upon which its judgment was anchored was, “who, as between the estate of Mbarak Awadh Salim (under which the appellant -Respondent here- claims) and the respondent company-the applicant herein, has an indefeasible proprietary right over the suit property.” The appellate court identified Article 40 of the Constitution as the vehicle for the resolution of the conflicting claims over the suit property and devoted considerable space in the judgment to consider the constitutional principle of the sanctity of title to property under that Article, and relying on a plethora of judicial precedents, many of which were drawn from this Court.
14.
In its determination, the appellate court concluded that the acquisition of the suit property by the applicant was in breach of the respondent’s deceased grandfather’s constitutional right to property; and that the transactions leading to the transfer and registration of the applicant as the owner of the suit property “went against the grain of the doctrine of seisin, and of the deceased’s constitutional right to property”.
15.
In view of the foregoing analysis of the pleadings and the decisions of the two courts below, it is inconceivable to argue, as the respondent has, that the petition as lodged in this Court is bereft of any issues involving the interpretation and application of the Constitution. Gatirau Peter Munya, (supra), Peter Oduor Ngoge v Francis Ole Kaparo & 5 others; SC Petition No 2 of 2012; [2012] eKLR and recently Abidha Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) in a long line of other decisions of this Court, we have been clear that the Supreme Court’s jurisdiction under Article 163(4)(a) is discretionary at the instance of the Court. That jurisdiction does not guarantee a blanket route to appeal; and that the appeal must be founded on cogent issues of constitutional controversy. A bare statement that a question of constitutional interpretation or application is involved, without more, cannot bring an appeal within the provisions of Article 163(4)(a) of the Constitution. The citation of constitutional provisions, or raising issues that involve peripheral constitutional issues or have nothing to do with the application or interpretation of the Constitution, will similarly not be sufficient to move this Court.
16.
Secondly, we have emphasized previously that, in answering the question as to what constitutes a matter involving interpretation and application of the Constitution, the Court’s focus should not solely be on the explicit mention of a constitutional provision but, instead, the Court must look at the various facets of the law as pleaded by the parties and the overall context and impact of the reasoning and conclusions of the superior Courts below in relation to the alleged constitutional issue to ascertain if indeed the same can properly be considered to have taken a trajectory of constitutional interpretation or application.
17.
Thirdly, the provisions of the Constitution cited as requiring interpretation or application by this Court, must have been the central theme of constitutional controversy, in the courts below, with the applying party indicating how the Court of Appeal misinterpreted or misapplied the constitutional provision in question.
18.
It is our view therefore that a determination of whether an appeal as of right to this Court lies is not governed by rigid principles, but is a jurisdiction exercised by the Court on a case-by-case basis but within the confines of the Constitution and the law as explained by case law cited above.
19.
We note that, right from the High Court, the central issue around the dispute was the title the applicant holds in respect of the suit property and specifically whether that title was indefeasible under operative principles of Article 40 of the Constitution. Throughout their analysis, assessment of the evidence, and determination, the central theme of the judgments of the two superior courts below remained the rights of the two parties to acquire and own property. It is our firm conclusion on the objection raised by the respondent that the applicant has properly invoked this Court’s appellate jurisdiction under Article 163(4)(a) of the Constitution and therefore pursuant to the principles enunciated in Lawrence Nduttu (supra), we declare that we have jurisdiction to entertain the petition and the objection is consequently overruled.
20.
Turning to the Notice of Motion, we bear in mind that under section 21 (2) of the Supreme Court Act, and rule 3(5) of the Supreme Court Rules, this Court has inherent power to make any ancillary or interlocutory orders that it deems fit to make as may be necessary for the ends of justice or prevent abuse of the process of the court. Pursuant to this power, we reiterate the well-established principles for the grant of an order of stay as enunciated in Gatirau Peter Munya (supra). An applicant must satisfy three conditions, that the appeal is arguable and not frivolous; that the appeal would be rendered nugatory if the stay orders are not granted, and that it would be in the public interest to do so.
21.
What constitutes an arguable appeal? In Kenya Hotel Properties Limited v Attorney General & 5 others; SC Application No 27 of 2020 [2020] eKLR, we gave the following answer:
“
Arguability of an appeal would entail this Court looking at the record and the Petition of Appeal and determine, without finality but at a prima facie level, whether the appeal has substance and/or is not made of straw. It also entails interrogating its foundation and confirming that it is not built on quicksand.”
22.
In considering whether or not the appeal is arguable, the Court is not called upon to interrogate the merits of the appeal but merely to see if at this stage there is a prima facie case to justify the grant of the order. An arguable appeal is therefore not one which must necessarily succeed but one which ought to be argued fully before the court.
23.
In Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission (Interested Party); (Petition 5 (E007) of 2021) [2021] KESC 22 (KLR) (Civ) (3 December 2021) (Ruling) we considered how an appeal will be rendered nugatory if an order of stay is not granted thus:
“
On the nugatory aspect, the concern is whether what is sought to be stayed if allowed to happen is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved.”
24.
This Court in considering an application for stay cannot ignore the impact of such an order beyond the parties to the case should an order of stay be granted or denied. Consequently, the Court will make a general inquiry as to where the public interest lies",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/36/eng@2024-07-26
Petition (Application) E008 of 2024,Likowa v Aluochier & 2 others (Petition (Application) E008 of 2024 & Application E013 of 2024 (Consolidated)) [2024] KESC 41 (KLR) (26 July 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",26 July 2024,2024.0,Nairobi,Civil,Likowa v Aluochier & 2 others,[2024] KESC 41 (KLR),,"The petitioner was elected as the Speaker of the Migori County Assembly. The High Court nullified his election, citing procedural irregularities. The Court of Appeal upheld the High Court's decision ordering a fresh election. The petitioner filed an appeal to the Supreme Court seeking to stay the execution of the Court of Appeal's judgment and conservatory orders to halt the fresh election process. Concurrently, the 1st respondent sought injunctive relief and admission of additional evidence regarding the nomination process. While the appeal and applications were pending, Likowa was impeached as Speaker on April 23, 2024. The Supreme Court found the motions by both parties had been overtaken by events due to the impeachment.","We are alive to the fact that, under the provisions of section 23A of the Supreme Court Act, this court has jurisdiction to issue an order for stay of execution, an injunction, stay of further proceedings or any other conservatory or interim orders, on such terms as the court may deem fit.
ii.
It is also well established, following our decision in the case of Gatirau Peter Munya v Dickson Mwenda & 2 others, SC Application No 5 of 2014, [2017] eKLR that an applicant must satisfy the court that an appeal is arguable and is not frivolous; that unless the orders of stay are granted, the appeal will be rendered nugatory; and thirdly, it is in the public interest that the order of stay be granted.
iii.
The gist of the appeal herein is the determination of the question whether a serving County Assembly Speaker elected by members of that County Assembly at its first sitting after a general election can be removed from office contrary to the provisions of article 178(3) and legislation enacted pursuant thereto, in this case the provisions of section 21(5) of the Election Act as well as section 11 of the County Government Act. However, before we determine the arguability of the petitioner’s appeal, the 1st respondent has brought to the court’s attention a pertinent fact, through his application dated May 20, 2024; that the petitioner was impeached by Members of the County Assembly of Migori on April 23, 2024 and is no longer the Speaker of the said County Assembly. The resulting effect is that, this Court would be engaging in an academic exercise if it were to determine the petitioner’s Motion and any decision rendered would be no more than an academic statement. As a matter of public policy, this Court, and indeed any other court, should not exercise its jurisdiction or act in vain. We decline the invitation to do so in this case and therefore all the prayers in the petitioner’s Motion, having been overtaken by events, must be dismissed.
iv.
Similarly, the 1st respondent’s Motion aforesaid has been overtaken by events and in any event, the issues raised in it do not relate to the appeal before us but a whole new cause of action arising from the Standard Newspaper advertisement dated May 15, 2024 calling for the election of a new Speaker for the County Assembly of Migori following the impeachment. Any challenge to that issue lies elsewhere.
13.
Consequently, it would not be a useful venture or beneficial for either the court or the parties to sustain the two Motions before us. As regards the Petition of Appeal, in view of the changed circumstances, with the removal of the petitioner as Speaker, directions should be taken before the Deputy Registrar of this court on what issues are left for our determination, if at all.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/41/eng@2024-07-26
Petition (Application) E016 of 2024,Mwangi v Consolidated Bank of Kenya Limited & 3 others (Petition (Application) E016 of 2024) [2024] KESC 42 (KLR) (26 July 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko",26 July 2024,2024.0,Nairobi,Civil,Mwangi v Consolidated Bank of Kenya Limited & 3 others,[2024] KESC 42 (KLR),,"Upon Perusing the Notice of Motion application dated 17th May, 2024 and filed on 20th May, 2024 by the 1st respondent pursuant to Article 163 of the Constitution, Sections 15, 15A and 15B of the Supreme Court Act, Rule 31, 33(1), 33(2), 38(1), 40(1), 65(1) and 65(2) of the Supreme Court Rules, 2020 seeking, inter alia, an order to strike out the Petition and Record of Appeal dated 11th April, 2024;
2.
Upon Reading the grounds on the face of the application, the supporting affidavit sworn on 17th May 2024, and the further affidavit sworn on 7th June, 2024 both by Albert Anjichi, the applicant’s Acting Company Secretary/Head of Legal Department, where he contends that: the petition of appeal is fatally defective as leave to appeal to the Supreme Court was neither sought nor granted pursuant to Article 163(4)(b) as read together with Article 163(5) of the Constitution; the appeal does not lie as a matter of right as it does not involve any interpretation or application of the Constitution pursuant to Article 163(4)(a) of the Constitution; the genesis of the petitioner’s grievance is a commercial suit filed before the High Court, being HCCC No. 162 of 2019, John Mathara Mwangi vs. Consolidated Bank of Kenya Limited & Others instituted vide a Plaint dated 17th December, 2017 where he sought declaratory orders that the sale of the suit property to the 3rd respondent by public auction was null and void;
3.
Upon Further Perusing the applicant’s grounds in support of its application wherein it is averred that: the main issue for determination before the Court of Appeal was whether the High Court (Majanja J.) properly exercised its discretion in dismissing the suit and in declining to set aside the dismissal order under Order 12 rule 3(1) of the Civil Procedure Rules; the Court of Appeal in its judgment of 8th March, 2024 held that it did not perceive any honest mitigating mistake or blunder on the part of the petitioner and his Counsel that would warrant an adjournment, consequently it did not find any merit in the appeal;
4.
Upon Considering the applicant’s submissions dated 17th May, 2024 where it reiterates its arguments and cites this Court’s decisions in Lawrence Nduttu & 6000 others vs. Kenya Breweries Ltd & Another SC Petition No. 3 of 2012 [2012] eKLR, Sum Model Industries Ltd. vs. Industrial & Commercial Development Corporation and Development Corporation SC Application No.1 of 2011 [2011] eKLR and Peter Oduor Ngoge vs. Francis Ole Kaparo & 5 others [Petition No.2 of 2012 [2012] eKLR to urge that the petition of appeal does not meet the Supreme Court’s jurisdictional test; and that it ought to be awarded costs pursuant to this Court’s decision in Jasbir Singh Rai & 3 others vs. Tarlochan Singh Rai & 4 others;
5.
Taking into account the petitioner’s replying affidavit sworn on 30th May, 2024 in opposition to the application where he contends that: this Court has jurisdiction pursuant to Article 163(4)(a) of the Constitution to hear and determine the petition of appeal; the basis of the refusal on his plea to be heard by the High Court under Article 50(1) was the foundational basis of his appeal to the Court of Appeal and is the basis of the appeal before this Court; no commercial arguments arose or were canvassed before the Court of Appeal; the scope, application, and interpretation of the import of Article 48 of the Constitution on the circumstances of the court starting at 8.00 am in the face of the Covid 19 pandemic restrictions are an issue for interpretation of this Court; and that all the grounds set out in the Memorandum of Appeal before the Court of Appeal were on the denial of the right to be heard as espoused in Article 25(c) and 50(2)(d) of the Constitution;
6.
Further considering the petitioner’s submissions dated 30th May, 2024 where he cites this Court’s decisions in Hassan Ali Joho & Another vs. Suleiman Said Shahbal & 2 others Petition 10 of 2013 [2014] eKLR, Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others SC Application No. 5 of 2014 [2014] eKLR and Geoffrey Asanyo & 3 others vs. Attorney General Supreme Court Petition No. 21 of 2015 [2018] to urge that the heart of the petition of appeal is the application and interpretation of Article 50(1) of the Constitution and therefore his appeal is within the jurisdiction of this Court;
7.
Noting the 2nd respondent’s replying affidavit sworn on 28th May, 2024 by its director, Simon Kagiri Kamatu, and submissions of even date in response to and in support of the 1st respondent’s application where he reiterates the averments of the 1st respondent and states that: the petitioner’s suit at the High Court was dismissed for want of prosecution for reason that on the hearing date of 10th February 2021, the petitioner failed to attend the virtual hearing and had failed to attend court on five (5) previous occasions; Counsel holding brief for Mr. Kinyanjui, Counsel on record for the petitioner, sought adjournment informing the court that the petitioner was indisposed; the application for adjournment was declined and the court ordered that the matter proceeds; that later, Mr. Kinyanjui appeared before the court and sought adjournment on the grounds that he was not ready to proceed as his client was not in court, and that he was engaged in other matters in a different court; he again informed the court that he could not proceed as the petitioner would like to proceed physically in court;
8.
Further noting the 2nd respondent’s contention that: the petitioner’s advocate’s request to prosecute the suit physically was an afterthought and in bad faith as at the time, the Chief Justice had published Practice Directions on Electronic Case Management 2020, which were applicable as one of the measures amidst the height of Covid-19 pandemic for virtual hearings; mere citing of provisions of the Constitution alleged to have been violated is not sufficient to invoke this Court’s jurisdiction under Article 163(4)(a) or (b) of the Constitution; and that the petition of appeal is misconceived, incurably defective and an abuse of the court process as it does not meet the constitutional threshold to warrant this Court’s jurisdiction pursuant to Article 163(4)(a) and (b) of the Constitution;","Bearing In Mind the provisions governing this Court’s jurisdiction as set out under the Constitution at Article 163(4) (a) and (b) and Sections 15, 15A and 15B of the Supreme Court Act;
11.
We have considereD the application, affidavit in support, the responses and submissions filed and now opine as follows:
i.
The petitioner’s grievance arises from the Order of Majanja J. in HC (C & TD) C No. 162 of 2019 dated 10th February, 2021 wherein the petitioner’s suit was dismissed with costs for want of prosecution. On appeal to the Court of Appeal, the main issue for determination was thus, whether there was wrongful exercise of discretion on the part of the learned Judge in either denying the application for adjournment or in dismissing the petitioner’s suit pursuant to Order 12 Rule 3(1) of the Civil Procedure Rules. In its Judgment dated 8th March, 2024 the Court of Appeal did not perceive any wrongful exercise of discretion on the part of the learned Judge. The Court found no lacuna in the legal framework for conduct of virtual hearings, and that there was no indication of bias on the part of the Judge in awarding costs.
ii.
Our perusal of the judgment of the Court of Appeal does not reveal any issue of application or interpretation of the Constitution on the right to be heard pursuant to Article 50(1) of the Constitution or on the right to access justice under Article 48 of the Constitution as averred by the petitioner. The gist of the petitioner’s grievance is the dismissal of the suit for want of prosecution. From the record, several attempts were made on behalf of the petitioner to adjourn the suit and it is in that context that the adjournment was declined by the High Court resulting in the dismissal of the suit. The High Court was not obligated to agree with the petitioner’s plea for adjournment and having not been persuaded as such, the learned Judge exercised discretion to dismiss the suit.
iii.
In Teachers Service Commission vs. Kenya National Union of Teachers & 3 Others SC Application No. 16 of 2015 [2015] eKLR, Deynes Muriithi & 4 others vs. Law Society of Kenya & Another SC Application No. 12 of 2015 [2016] eKLR and Kibira vs. Independent Electoral & Boundaries Commission & 2 others Petition 29 of 2018 [2019] KESC 62 (KLR) we set the parameters of the exercise of our jurisdiction to interfere with the exercise of discretion by another court. This can only be where there was a plain and clear misapplication of the law and if based on a whim, was prejudicial or was capricious, which is not the case herein.
iv.
Further, as we held in Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) vs. Attorney-General & 2 others Sup Ct Petition No. 45 of 2018 [2020] eKLR, mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involves little or nothing to do with the application or interpretation of the Constitution does not bring an appeal within the jurisdiction of the Supreme Court under Article 163(4)(a) of the Constitution, and that only cardinal issues of constitutional law or of jurisprudential moment, and legal issues founded on cogent constitutional controversies deserve the further input of the Supreme Court under Article 163(4)(a) of the Constitution.
v.
The petitioner’s arguments under Articles 48 and 50 of the Constitution were not the subject of contestation before the High Court. They have arisen as a result of the dismissal, albeit at the first instance, before the Court of Appeal. This goes against our settled jurisprudence that once the petitioner approached the Court as of right, under Article 163(4)(a) of the Constitution, it is upon him to satisfy the Court that he meets the requisite threshold. It is now established that the Court is not another appellate layer of court to attract appeals from the Court of Appeal. In matters relating to the interpretation and application of the Constitution, the issue in contestation must have arisen at the first instance before the High Court and followed the court hierarchy culminating in the Supreme Court’s input. The issue of certification or leave to appeal to the Supreme Court does not therefore arise as that is a different jurisdiction, not being invoked in the present matter.
vi.
On costs, in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Sup. Ct. Petition No. 4 of 2012; [2014] eKLR we set out the legal principles that guide the grant of costs. Generally, costs follow the event. It should not be used to punish the losing party, but to compensate the successful party for the trouble taken in prosecuting or defending a suit. Additionally, the award of costs is discretionary. We also note that this matter did not proceed to hearing of the appeal on the merits. To this end, each party shall bear its costs.
12.
Appreciating that the 2nd respondent filed a Notice of Preliminary Objection dated 16th May, 2024 challenging the jurisdiction of this Court to hear and determine the petition of appeal pursuant to Article 163(4)(a) of the Constitution on similar grounds as argued by the 1st respondent in its application, and having made our findings above, the findings are dispositive of the preliminary objection with the effect that the same is upheld.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/42/eng@2024-07-26
Petition (Application) 11 (E008) of 2022,"Sonko v Clerk, County Assembly of Nairobi City & 11 others (Petition (Application) 11 (E008) of 2022) [2024] KESC 43 (KLR) (Civ) (26 July 2024) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",26 July 2024,2024.0,Nairobi,Civil,"Sonko v Clerk, County Assembly of Nairobi City & 11 others",[2024] KESC 43 (KLR),,"Brief facts
The applicant, a former Governor of Nairobi County, sought a review of the Supreme Court’s judgment dismissing his impeachment appeal. He argued the High Court's decision was tainted by the presiding Judge's misconduct, as later confirmed by a Judicial Service Commission Tribunal. The applicant also sought to introduce new evidence, including tribunal findings and acquittals in criminal cases related to his impeachment.
Issues
Whether the Supreme Court could review its prior judgment based on new evidence.
What was the criteria that the Supreme Court considered to review its own decision?","Upon deliberations on the motion and the rival submissions, we opine as follows:
i.
It is instructive to note that the applicant did not invoke any legal provisions for adducing additional evidence in his Motion. Be that as it may, the applicant previously filed a Notice of Motion dated July 20, 2022 in this appeal seeking inter alia leave to adduce additional evidence. Some of the evidence he sought to adduce therein included the JSC letter under the hand of the Hon. Chief Justice to the President recommending the appointment of a Tribunal to investigate the conduct of Chitembwe, J (as he then was), and the Gazette Notice appointing the Tribunal. This court vide a ruling dated August 8, 2022 dismissed the said motion and pronounced in part as follows:
“
But of great significance is the fact that the applicant has all along been aware of the material he is now seeking to introduce. At the time he lodged the appeal in the Court of Appeal and even in this court, he was well aware of the gazette notice of May 18, 2022 in which a tribunal was appointed to investigate the conduct of Chitembwe, J. He has so averred himself in his submissions.”
ii.
We also wish to point out that some of the evidence sought to be adduced in the Motion at hand, such as proceedings, Hansard and videos of the impeachment proceedings before the Senate, were available at the time the High Court petitions were being heard. No explanation had been offered by the applicant as to why he did not adduce that evidence at the High Court. Besides, we are not convinced of the relevance of the additional evidence sought to be adduced by the applicant as pertains to the misconduct of Chitembwe, J (as he then was) to this matter which relates to the impeachment of the applicant as a Governor. Likewise, with respect to the rulings in the criminal cases in which the applicant was the accused person, it is important to point out that impeachment proceedings of a Governor are not dependent or tied to criminal convictions. In the end, we find that the applicant has not satisfied all the elements under Section 20(2) of the Supreme Court Act to warrant the leave sought to adduce additional evidence. See Garama v Karisa & 3 others, SC Petition No E020 of 2023; [2024] KESC 1 (KLR)
iii.
The general rule is that once this court delivers a judgment, it becomes functus officio save that, based on exceptional circumstances as delineated under Section 21A the Supreme Court Act and rule 28(5) of the Supreme Court Rules, the Court can review its decision. Equally, the applicant did not invoke any of the said provisions in his Motion save for mentioning them in his submissions. Nonetheless, we will address the issue of whether the motion meets the threshold for the review sought.
iv.
As correctly pointed out by the 1st, 4th, 5th and 6th respondents, the applicant previously filed a Notice of Motion dated July 18, 2022 in this appeal seeking review of this court’s judgment. One of the grounds upon which the applicant sought review was that by then, a Tribunal had been formed to consider the conduct of Chitembwe, J.’s (as he then was) who was the Presiding Judge of the 3-Judge Bench of the High Court which dismissed the High Court petitions. This court by another ruling dated August 8, 2022 dismissed the Motion for review and held in part as herein under-
“
Applying these conditions to this application, we have no hesitation in declaring that as framed, the application falls short of the exceptional circumstances and we decline the invitation to exercise the court’s limited discretion to review the judgment. A review as envisaged by section 21A and rule 28(5) aforesaid, concerns the decision of this Court and not any other court below it. The applicant cannot demonstrate that the judgment of this court of July 15, 2022 was obtained by fraud and or deceit or in what way it is a nullity.
…
But more fundamentally, the court having found as a main reason that its jurisdiction was not properly invoked, a review application cannot confer on it jurisdiction.” [Emphasis added]
We find that the aforementioned pronouncement still holds true for the Motion at hand.
v.
Taking into account the totality of the applicant’s motion, we are convinced that it is an attempt to relitigate issues already conclusively determined by this court. We have on numeral occasions expressed that review was not intended to give a party an opportunity to appeal, or relitigate its case. See Mohamed Fugicha v Methodist Church in Kenya (through its registered trustees) & 3 others, SC Application No 4 of 2019, [2020] eKLR and Parliamentary Service Commission v Martin Nyaga Wambora & others; SC Application No 8 of 2017; [2018] eKLR. Therefore and for the above reasons, the applicant’s omnibus Motion cannot be allowed to stand as it lacks merit.
vi.
Taking into account the foregoing and this court’s decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, we deem it just to order that costs to follow the event, and the applicant meets the 1st, 3, 4th, 5th and 6th respondents’ costs for the Motion.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/43/eng@2024-07-26
Petition E018 of 2023,Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment),JUdgement,Supreme Court,Supreme Court,"MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",11 July 2024,2024.0,Nairobi,Criminal,Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae),[2024] KESC 34 (KLR),,"A. Introduction
1.
The appeal before the Court dated August 2, 2023and filed on even date, is premised on articles 159(2)(d)(e) and 163(4)(b) of the Constitution, sections 3A, 15A and 21(1) of the Supreme Court Act, cap 9B Laws of Kenya, and rules 38(1)(a) and 39 of the Supreme Court Rules, 2020. the appellant, through the Office of the Director of Public Prosecutions, challenges the Court of Appeal’s decision in which the court held, inter alia that, the imposition of mandatory minimum sentences under the Sexual Offences Act, cap 63A Laws of Kenya, is unconstitutional
B. Background
2.
On March 11, 2011, the respondent, Joshua Gichuki Mwangi, was arraigned before the Senior Principal Magistrate’s Court at Karatina and charged in Criminal Case No 215 of 2011, with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The particulars of the charge were that on 8th March 2011, in Mathira West District within the then Central Province, the respondent intentionally caused his penis to penetrate the vagina of JWM, a child aged fifteen (15) years. The respondent was further charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. On October 17, 2011, the trial court found the respondent guilty as charged on the main count and sentenced him to twenty (20) years imprisonment. The conviction and sentence were upheld on first appeal at the High Court but the sentence was later overturned by the Court of Appeal, allowing the respondent’s appeal, setting aside the 20-year sentence and substituting it with a 15-year sentence running from the time that the trial court imposed its sentence. That decision prompted the present appeal at the instance of the Republic (Office of the Director of Public Prosecution).","i. Whether the learned Judges of the Court of Appeal acted ultra vires and without jurisdiction by assuming original jurisdiction on constitutional matters not raised at the High Court.
39.
Before considering the issues as delineated by the Court of Appeal, we are bound to pronounce ourselves, in limine on the question as to whether the Court of Appeal acted ultra vires and without jurisdiction in the first place, since it forms part of the grounds of this appeal. This issue is intricately intertwined with the other three issues delineated above and so we shall determine them together.
40.
the appellant submits in that context that, the Court of Appeal does not enjoy original jurisdiction on questions relating to the interpretation of the Constitution; it can only deal with such questions only by way of appeal from the High Court. the appellant further contends that the issue of minimum mandatory sentences was not raised before the High Court and that the issue was raised for the first time before the Court of Appeal. Therefore, the Court of Appeal had no jurisdiction whatsoever to determine it.
41.
The respondent on the other hand contends that the grounds of appeal he framed gave the Court of Appeal wide latitude to consider the constitutional validity of the sentence meted out against him. He points out that, since his grounds of appeal were mainly based on the unconstitutionality of his mandatory sentence, the Muruatetu case was properly applied by the Court of Appeal, in its finding that the sentence contravened the right to a fair trial under article 25 of the Constitution which is a non-derogable and absolute right.
42.
On our part, we note that the Court of Appeal in its judgment delivered on October 7, 2022pointed out that the respondent’s appeal was based on five grounds, with the main complaint being that the 20-year sentence imposed on the respondent was harsh and unconstitutional. Further that the court was urged to reduce it so as to allow him to go back to his family.
43.
article 164(3) of the Constitution defines the Court of Appeal’s jurisdiction, which is expressly restricted to appeals from the High Court and any other court or tribunal that is designated by an Act of Parliament. Under article 165(3)(d)(i) and (ii), the High Court is clothed with the jurisdiction to hear any question respecting the interpretation of the Constitution. This includes determining whether any law is inconsistent with or in violation of the Constitution and whether any action taken under the authority of the Constitution or any law is inconsistent with or in violation of the Constitution. This jurisdiction is however subject to the appellate jurisdiction given to the Court of Appeal and the Supreme Court.
44.
This clear and uncontested position lends credence to the argument by the appellant that the Court of Appeal heard and determined the present matter without jurisdiction, regarding the unconstitutionality of the sentence meted against the respondent, because the High Court did not in any way address the issue that the appellate court ultimately focused its judgment on.
45.
We have further noted that, from the respondent’s Grounds of Appeal which appear in the Record of Appeal, the respondent specifically complained that the sentence of 20 years was harsh and excessive and that the court ought to reduce the same to a convenient term deemed fit to enable him re-join his family and society while not being a threat to the complainant. The constitutionality of the sentence imposed within the relevant statute was therefore not an issue placed before the Court of Appeal for its determination.
46.
We reproduce the grounds of appeal verbatim and for clarity as follows:
“
1.
That, the 20yrs imprisonment imposed against me is harsh and excessive.
2.
That, I urge this Hon. Court to reduce the same under its own convenient term deemed fit(sic).
3.
That, if the sentence is reduced at the court’s discretion it will enable me join my family and society and not be a threat to the complainant.
4.
That, I am now 34 years old with 3 children being the only bread winner who by now they are under the care of the elderly parents same who are not financially stable(sic).
5.
That, other grounds to be adduced and I kindly urge this court to be present during the hearing of this appeal(sic).”
47.
The record also shows that issue of constitutionality of the sentence was raised for the first time before the Court of Appeal and introduced by way of submissions by counsel representing the respondent. Having combed through the Record of Appeal and proceedings, we note that the constitutionality of the respondent’s sentence was also not raised either before the trial court or the High Court. The respondent having failed to raise the issue of the constitutionality of the mandatory minimum sentence imposed on him in his appeal before the High Court, it is obvious to us that he was precluded from addressing the issue on appeal before the Court of Appeal.
48.
Before further delving into the question of constitutionality or otherwise of the sentence, we must take cognizance of provisions of section 361(1) of the Criminal Procedure Code which, in cases of appeals from subordinate courts, explicitly bars the Court of Appeal from hearing issues relating to matters of fact. This section also elaborates that the severity of sentence is a matter of fact and not of law and the Court of Appeal is barred from determining questions relating to sentences meted out, except where such sentence has been enhanced by the High Court. We produce the same verbatim as follows:
“
361.
Second Appeals
1.
A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section—
a.
on a matter of fact, and severity of sentence is a matter of fact; or
b.
against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence.”
49.
Thus, the Court of Appeal’s jurisdiction on second appeals is limited to only matters of law and it could not interfere with the decision of the High Court on facts unless it was shown that the trial court and the first appellate court considered matters they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong in their decision when considering the evidence as a whole. In such a case, such omissions or commissions would be treated as matters of law. Consequently, the respondent's appeal on the grounds that his sentence was harsh and excessive was not one that the Court of Appeal could lawfully determine as it fell outside the purview of the Court of Appeal’s jurisdiction.
50.
As we have stated before, this Court recognizes and respects the constitutional competence of courts in the judicial hierarchy to resolve matters before them. We have also settled that for an appeal to lie to the Supreme Court from the Court of Appeal under article 163(4)(a), the constitutional issue must have first been in issue at both the High Court and then the Court of Appeal for determination. We have stated so in a myriad of cases including Peter Oduor Ngoge vs Francis Ole Kaparo & 5 others, SC Petition No 2 of 2012 [2012] eKLR and Erad Suppliers & General Contractors Limited v National Cereals & Produce Board, SC Petition No 5 of 2012 [2012] eKLR. It was subsequently summed up in Gladys Wanjiru Munyi v Diana Wanjiru Munyi, SC Petition No 31 of 2014 [2015] eKLR thus:
“
In Peter Ngoge v Francis Ole Kaparo & 5 others, Sup Ct Petition No 2 of 2012 [2012] eKLR, we signaled the guiding principle that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, do indeed have the competence to resolve all matters turning on the technical complexities of the law, and that only cardinal issues of law, or of jurisprudential moment, deserve the further input of the Supreme Court.”
We reiterate the above guiding principle and would dissuade courts below from exceeding their mandate under the erroneous view that they have been confronted by a jurisprudential moment.
ii. Whether in departing from the decision in Muruatetu & another v Republic; SC Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (the Muruatetu Directions), the Court of Appeal violated the principle of stare decisis?
51.
In the Muruatetu case, this court was clear that what was in contention before it was the mandatory nature of the sentence of death imposed upon the appellants therein by the High Court and affirmed by the Court of Appeal for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. the appellants had argued that the mandatory sentence of death was inconsistent with the Constitution. This court in its final judgment issued the following declarations and orders:
“
a.
The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.
b.
This matter is hereby remitted to the High Court for re- hearing on sentence only, on a priority basis, and in conformity with this judgment.
c.
The Attorney General, the Director of Public Prosecutions and other relevant agencies shall prepare a detailed professional review in the context of this Judgment and Order made with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the petitioners herein. The Attorney General is hereby granted twelve (12) months from the date of this Judgment to give a progress report to this court on the same.
d.
We direct that this Judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law, to give effect to this judgment on the mandatory nature of the death sentence and the parameters of what ought to constitute life imprisonment”. (Our emphasis).
52.
In light of the structural and supervisory interdicts issued, the court issued the Muruatetu Directions, wherein it, inter alia, pronounced itself on the application of its decision in the Muruatetu Case to other statutes prescribing mandatory or minimum sentences as follows:
“
10.
It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it. In that paragraph, we stated categorically that:
[48]
section 204 of the Penal Code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under article 25 of the Constitution; an absolute right”.
Reading this paragraph and the Judgment as a whole, at no point is reference made to any provision of any other statute. The reference throughout the Judgment is only made to section 204 of the Penal Code and it is the mandatory nature of death sentence under that section that was said to deprive the “courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases
11.
The ratio decidendi in the decision was summarized as follows:
“
69.
Consequently, we find that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment”.
We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.”
………
14.
It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners, and as framed by the court.
15.
To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40(3), robbery with violence under section 296(2), and attempted robbery with violence under section 297(2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases.” [Emphasis ours]
53.
We therefore find that in this matter the Court of Appeal did offend the principle of stare decisis. Notably, we observe that the Court of Appeal determined that the ratio decidendi in the Muruatetu Case on the unconstitutionality of mandatory sentences could be applied mutatis mutandis to the mandatory nature of minimum sentences provided for in the Sexual Offences Act. In doing so, and with respect, the Court of Appeal failed to abide by the clear principles provided in both the Muruatetu case and the Muruatetu directions in this instance.
54.
As we have stated before in several cases, unlike in other jurisdictions, Kenya's stare decisis principle is a constitutional obligation meant to enhance the legal system's predictability and certainty. In the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Petition No 2B of 2014 [2014] eKLR, we stated that article 163(7) of the Constitution is the embodiment of the time-hallowed common law doctrine of stare decisis. It holds that the precedents set by this court are binding on all other courts in the land. It is imperative for all courts bound by decisions to rigorously uphold their authority, ensuring the effective functioning of the administration of justice. Without this steadfast and uniform commitment, the legal system risks ambiguity, eroding public trust, and causing disorder in the administration of justice.
55.
Turning to the specific issue confronting us in this appeal, we are of the view that, in failing to follow the Muruatetu decision and later Directions, the Court of Appeal’s blanket application of the ratio decidendi in the Muruatetu case conflated the concept of mandatory sentences with minimum sentences.
56.
Black’s Law Dictionary, 9th Edition, defines a mandatory sentence as follows:
“
A sentence set by law with no discretion for the judge to individualize punishment.”
While minimum sentence is as defined as follows:
“
The least amount of time that a convicted criminal must serve in prison before becoming eligible for parole.”
57.
Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognised term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances.
58.
In the Muruatetu case, this court solely considered the mandatory sentence of death under section 204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that apply for example to capital offences, are vastly different from minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in crafting different sentencing for criminal offences, the drafters of the law in the Legislature, take into consideration a number of issues including deterrence of crime, enhancing public safety, sequestering of dangerous offenders, and eliminating unjustifiable sentencing disparities.
59.
The amici in that context submitted, and we agree, that sterner sentences ensure that prejudicial myths and stereotypes no longer culminate in lenient sentences that do not reflect the gravity of sexual offences. They cite instances in which the courts have been influenced by myths that; attempted rape is not a serious offence; the absence of separate physical injury renders the crime less serious; and, the alleged relationship between the perpetrator and the victim diminishes the perpetrator’s culpability.
60.
South Africa introduced minimum sentencing in 1997 through the Criminal Law Amendment Act with the intention of reducing serious and violent crime, achieving consistency in sentencing and to address public perceptions that the sentences meted out were not sufficiently severe. The Supreme Court of Appeal in the case of S v Malgas 2001 (1) SACR 469 (SCA) para. 25 explained and declared the purpose of minimum sentences as follows:
“
In short, the legislature aimed at ensuring a severe, standardised and consistent response from the courts to the commission of such [serious] crimes”
61.
In response to a 1992 Special Report to Congress by the United States Sentencing Commission denouncing mandatory minimum sentences, Robert Mueller, a former Assistant Attorney General, defended mandatory minimum sentences on behalf of the Department of Justice in his article ‘Mandatory Minimum Sentencing’ published in the Federal Sentencing Reporter, Vol 4, No 4, Turmoil over Relevant Conduct in the Ninth Circuit (Jan - Feb., 1992), pp 230- 233. He stated that, through mandatory minimum sentence statutes, Congress sends a strong message that society would not tolerate certain forms of criminal behaviour. Further, that mandatory minimum sentences deter criminal activity by maximizing the certainty and predictability of incarceration for crimes that pose serious threats to the nation’s quality of life such as drug trafficking near schools. For him, mandatory minimum sentences assure an absolute sentencing floor, allowing only departure above the stated minimum.
62.
Having so stated, we are aware that mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, USA, Australia, South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed. That is why the Supreme Court of the United States, which has actively challenged mandatory death sentences since the early twentieth century, ruled in Miller v Alabama, 132 S Ct 2455 (2012) that imposing mandatory life imprisonment without parole for juvenile offenders at the time of their crimes violates the Eighth Amendment's prohibition on cruel and unusual punishments. Similarly, the European Court of Human Rights has on several occasions applied the “grossly disproportionate test,” for instance in the cases of Harkins and Edwards v. United Kingdom, 2012 ECHR 45 and Murray v Netherlands, 2016 ECHR 408 where the court found that mandatory sentences of life imprisonment without the possibility of parole go against article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms on the prohibition from torture and inhuman and degrading punishment. Canada has also actively struck down minimum mandatory sentences and recently a 9 Judge bench of the Supreme Court of Canada in R. v Safarzadeh Markhali, 2016 SCC 14, reiterated its Constitutional commitment for proportionality in sentences. In Australia, in the case of Magaming v. The Queen, (2013) 253 CLR 381 the High Court struck down minimum mandatory sentence in the Migration Act finding that the statute usurped judicial power by granting the prosecution office the discretion to determine the minimum penalty to be imposed by allowing them to elect which offences to charge suspects with.
63.
Before Kenyan courts can determine whether or not the above trends and decisions are persuasive, we reiterate that there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. This was our approach and direction in Muruatetu which must remain binding to all courts below.
iii. Whether minimum sentences as prescribed in the Sexual Offences Act are unconstitutional and (iv) whether courts have discretion to impose sentences below minimum those prescribed by the Sexual Offences Act.
64.
Returning to the issue of the constitutionality or otherwise of minimum sentences under the Sexual Offences Act and discretion to mete out sentences under the said Act, we note that the Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. We find this approach problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below.
65.
The proper procedure before reaching such a manifestly far-reaching finding would have been for there to have been a specific plea for unconstitutionality raised before the appropriate court. This plea must also be precise to a section or sections of a definite statute. The court must then juxtapose the impugned provision against the Constitution before finding it unconstitutional and must also specify the reasons for finding such impugned provision unconstitutional. The Court of Appeal in the present appeal did not declare any particular provision of the Sexual Offences Act unconstitutional, failing to refer even to the particular section 8 that would have been relevant to the respondent’s case.
66.
We also note that the Court of Appeal concluded its decision in this present matter by reducing the respondent’s sentence from the minimum of 20 years to 15 years. In doing so, the Court of Appeal did not clarify the considerations that went into its decision to reduce the sentence. The reasoning behind the court's decision is called into question by this omission as sentencing is a matter of fact unless an Appellate Court is dealing with a blatantly illegal sentence which was not the case in the present matter.
67.
We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.
68.
This is why, even in the Muruatetu case, this court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights v Attorney-General and others, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows:
“
Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. the Constitution consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two.”
We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12
Application E005 of 2024,Emfil Limited v Attorney General & 14 others (Application E005 of 2024) [2024] KESC 32 (KLR) (5 July 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, W Ouko",4 July 2024,2024.0,Nairobi,Civil,Emfil Limited v Attorney General & 14 others,[2024] KESC 32 (KLR),,"Upon perusing the Notice of Motion dated February 7, 2024and filed on February 8, 2024, pursuant to article 163(4)(b) of the Constitution, sections 3A, 15, 15B and 21 of the Supreme Court Act and rule 33(2) and (3) of the Supreme Court Rules; seeking review and setting aside of the Ruling of the Court of Appeal (Nyamweya, Lesiit & Odunga, JJ.A) delivered on January 25, 2024 in Mombasa Civil Application No E032 of 2023, declining certification of the intended appeal as one raising matters of general public importance; certification of the intended appeal against the Judgment of the Court of Appeal (Gatembu, Nyamweya & Lesiit, JJ.A) delivered on April 14, 2023 in Mombasa Civil Appeal No 37 of 2020; certification so granted to operate as stay of execution; and costs; and
2.
Upon considering the applicant’s grounds on the face of the application and affidavit sworn by Andrew Mukite Musangi on February 7, 2024, wherein it is contended that, the Court of Appeal erred in law, in; reinstating defences of parties who had waived their right of appeal; allowing the Attorney General to lodge an appeal on behalf of parties with independent representation and who had not filed notices of appeal; failing to consider that the applicant’s ownership of the suit property had been determined and affirmed by the High Court and Court of Appeal in HCCC No 181 of 2007 and CA No 312 of 2012 respectively; failing to take into account that the suit property was not available for allocation to the squatters; and finding that reliance on a replying affidavit filed in a concluded matter to urge a subsequent matter was res judicata, in contravention of order 2 rule 15 of the Civil Procedure Rules; and
3.
Upon further considering the questions of general public importance proffered by the applicant, to wit; whether the striking out of parties pleadings has a bearing on public interest; whether the Court of Appeal erroneously applied the provisions of order 2 rule 15(2) of the Civil Procedure Rules; whether the Attorney General could represent parties who had expressly waived their right of appeal; what is the ambit of the role of the Attorney General in defending public interest; whether ownership rights conferred by a court of competent jurisdiction can be subject to re-litigation; whether a replying affidavit in a former suit can be relied on in subsequent causes to prove that the matter is res judicata; whether an outright misapplication of the law by a court raises an issue of public importance; whether competing titles to property can be issued under different registration regimes; and whether conflicting decision of a court raises an issue of public importance; and
4.
Upon considering the applicant’s submissions dated February 7, 2024and filed on February 9, 2024, restating the grounds set out above and in addition urging that, the application meets the principles for grant of certification established in Hermanus Phillipus v Giovanni Gnecchi -Roscone, SC Application No 4 of 2012 [2013] eKLR (Hermanus Case), and the issues raised therein transcend the litigation interests of the parties in the suit. Moreover, that the issues raised are of repeated occurrence, bearing proper conduct in the administration of justice, and are destined to continually engage the working of judicial organs. To support this assertion, the applicant relies on this court’s decision in Kenya Civil Aviation v African Commuter Services Ltd & another, SC Application No 7 of 2015; [2018] eKLR; and
5.
Having read and considered the 1st respondent’s submissions dated February 22, 2024, wherein the 1st respondent urges that the application fails to meet the yardstick for grant of certification settled in the Hermanus Case, in that it has not concisely identified the elements of general public importance peculiar to the intended appeal. Furthermore, the Attorney General contends that the dispute pending before the trial court pertains to private land ownership between the applicant and the respondents; the only issue determined by the appellate court involved the striking out of parties’ defences by the trial court; and the just determination of the substantive dispute calls for the evaluation and consideration of the contested facts between the parties by the trial court as directed by the Court of Appeal; and
6.
Upon noting the 4th and 7th respondents’ replying affidavit sworn on March 13, 2024 and filed on March 19, 2024, wherein the respondents join issues with the 1st respondent and also aver that the intended appeal discloses no matters of general public importance transcending the circumstances of this matter; and
7.
Upon considering the 4th and 7th respondents’ submissions dated March 13, 2024 and filed on March 19, 2024, restating their grounds of opposition and reiterating that the application fails to meet the principles for certification settled in the Hermanus Case. They emphasize that the Court of Appeal was only called upon to determine whether the trial court had judiciously exercised its discretion in striking out defences by the respondents; and therefore, the applicant cannot invite this court to determine substantive issues pending before the trial court, disguised as matters of public interest; and
8.
Upon further considering the 8th to 13th, 15th and 17th to 20th respondents’ replying affidavit sworn on February 28, 2024 and filed on March 4, 2024 adopting the arguments in opposition by the other respondents as earlier summarized. Further noting the said respondents’ submissions dated February 29, 2024 and filed on March 4, 2024, to the effect that none of the matters raised by the applicant pass the test for certification laid down in the Hermanus Case but are instead mere contests between the parties; and
9.
Upon reading the applicant’s submissions in rejoinder dated March 7, 2024and filed on March 11, 2024, restating its arguments in support and further urging that the 1st respondent’s submissions were not accompanied by a replying affidavit and were therefore defective. The upshot, according to the applicant, being that the application is unopposed by the 1st respondent as well as the 2nd, 3rd, 14th and 16th respondents who had neither filed their responses nor written submissions; and
10.
Cognisant of the fact that this court has already established the guidelines upon which an intended appeal may be certified as one involving a matter of general public importance in Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone [supra]; to the effect that:
“
…for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest…”","We now opine as follows:
i.
Having considered the pleadings and submissions by the parties herein, and guided by the principles established in the Hermanus Case, we find that the Motion lacks merit as the applicant has not concisely and satisfactorily identified any issue, the determination of which, would transcend the circumstances of the matter at hand so as to justify a review of the Court of Appeal’s ruling denying certification;
ii.
Neither has the applicant raised any substantial question of law, the determination of which, would have a significant bearing on the public interest;
iii.
The Court of Appeal only determined the justification for striking out the respondents’ defences by the Environment and Land Court, partially allowed the appeal, and remitted the matter to the trial court for determination on merit; and
iv.
Therefore, the applicant is mistakenly inviting this court to determine facts in a contest between the parties, which by itself, is not a basis for granting certification to appeal to the Supreme Court.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/32/eng@2024-07-05
Petition (Application) E032 of 2023,Kamande v Republic (Petition (Application) E032 of 2023) [2024] KESC 33 (KLR) (Crim) (5 July 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko",5 July 2024,2024.0,Nairobi,Criminal,Kamande v Republic,[2024] KESC 33 (KLR),,"Uponperusing the Notice of Motion by the applicant dated 22nd March, 2024 and filed on 25th March, 2024 pursuant to Articles 50 (2) (k), 159 (2) (d) & (e) of the Constitution of Kenya 2010, Rules 3 and 26 of the Supreme Court Rules and all other enabling provisions of law in which the applicant seeks the following orders:
a.
This Honourable Court be pleased to admit as additional evidence an Expert Medical Report on the Battered Woman Syndrome in line with the Draft Medical Report annexed to the Petitioner’s Supporting Affidavit in such a manner and subject to such conditions as the court may find appropriate;
b.
The Petitioner/Applicant be granted fourteen (14) days leave from the date of determination of this Application to adduce the said additional documentary evidence in the instant appeal;
c.
This Honourable Court do issue any other or further order as it may deem necessary to meet the ends of justice;
d.
The order for costs of an incidental to this application abide the result of the said Appeal; and
2.
Uponconsidering the grounds on the face of the application, and the averments contained in the supporting affidavit of Ruth Wanjiku Kamande, deponed on 22nd March, 2024 wherein the applicant contends that: the Court of Appeal certified the appeal on grounds that it raises matters of general public importance regarding the doctrine of the Battered Woman Syndrome (hereinafter BWS) and its applicability to the defence of self-defence in criminal trials in Kenya; for the reason that, this common law doctrine of self-defence, as it is applied fails to curve out a “conscience exemption” for victims of domestic violence thereby continually perpetuating a grave miscarriage of justice; to the extent that it fails to take into consideration the unique psychology and circumstances of battered intimate partners when assessing the proportionality of the victim’s actions, denying such victims a reasonable opportunity for justice;
3.
Therefore,the applicant seeks to adduce the expert medical report of Dr. Frank Njenga, a licensed clinical psychologist who evaluated the applicant on or about 24th January 2023, wherein he expounds on the intersectionality between BWS, Post Traumatic Stress (PTSD) and Premenstrual Dysphoric Disorder (PMDD); by providing invaluable psychological insight on BWS,expounding on its causes and effect as evaluated from the applicant’s perspective, which in turn shall enable the Court to understand the role that the condition played in the events underlying the Petition; noting that the mental evaluation undertaken to determine the applicant’s fitness to stand trial did not take into account or seek to determine whether she was predisposed or potentially afflicted with the syndrome; in consequence, the report now sought to be availed offers additional, compelling and consequential probative evidence and it will be in the interest of justice that the application filed be granted; since, this is an exceptional opportunity for the Court to render itself definitively on BWS not only for the benefit of the applicant but victims of domestic violence in Kenya; and
4.
Uponconsidering the applicant’s written submissions dated 22nd March, 2024 and filed on 25th March, 2024 the applicant affirms that the evidence sought to be adduced, exhibited as a draft expert medical report, meets the statutory and jurisprudential threshold set out by this Court in Mohamed Abdi Mahamud v Ahmed Abdi Abdullahi Mohamad & 3 others [2018] eKLR as the applicant satisfies the eleven elements set out therein on grounds that: it is credible evidence prepared by a practising medical practitioner and a clinical psychologist with over 30 years' experience, after repeated physical interviews with the applicant, and a number of observations; it is directly relevant to BWS, and will influence/impact the verdict by translating theoretical perspectives into practical psychological insights; it is not intended to introduce new facts or issues for determination but will enable the Court to authoritatively and conclusively review the principle of BWS and Intimate Partner Violence, deepening its appreciation of the clinical, medical and psychological underpinnings; giving consideration that at the trial the defence of BWS was unavailable to the applicant because it had no statutory underpinning or common law adoption by judicial initiative; as such, the applicant could neither have procured nor utilized the expert medical report to advance her defence; and
5.
Furthermore, the report, which is not voluminous, will allow for an effective response by the State as it is expected that the final copy to be filed in Court will not exceed 60 pages; by dint of it containing evidence that will remove vagueness or doubt over the case with a bearing on the main issue therefore, it is not an attempt to deceive or otherwise undermine the Court’s ability to impartially, objectively and comprehensively address the substratum of the appeal; neither does the applicant seek to fill up an evidentiary gap or eliminate lacunae in the pleaded case nor to make a fresh case in the appeal or fill up omissions or patch up weak points in her case; instead, due to the current failure or non-recognition of Intimate Partner Violence within the criminal justice system, there is a grave shortcoming in the dispensation of justice; even though Parliament has enacted the Protection Against Domestic Violence Act, there is a yawning deficit in the legal system in terms of failure to perceive what should happen and what judicial protection to offer victims who retaliate against their abusers; to this end, the State will suffer no prejudice from the additional evidence sought to be adduced; and
6.
Uponconsidering the replying affidavit of Fredah Mwanza, Senior Assistant Director of Public Prosecutions, sworn on 16th April, 2024 in opposition to the application and written submissions dated 16th April, 2024 and filed on 17th April, 2024 all to the effect that: the instant application is nothing but an attempt by the applicant to make a fresh case, fill up omissions or patch up her case; taking note that the State owes no responsibility to conduct a psychiatric evaluation for an accused person to determine possible defences, it is squarely the responsibility of the accused to present evidence such as a psychiatric evaluation for purposes of enabling the trial court to determine the existence of possible defences; the applicant did not present any such evidence at trial or before the first appellate court for evaluating and making a finding on the applicability of BWS in this case; moreover, the applicant has not demonstrated any specific challenge(s) that may have made it difficult or impossible to present the psychiatric report;
7.
Additionally, the annexed draft report allegedly prepared upon examination of the applicant’s state of mind more than eight (8) years after the date of commission of the offence, the subject matter of the instant appeal, does not include an actual examination of the applicant around the time of the incident; it neither presents a medical history or a history of violence against the applicant by others or by the deceased victim or a combination of both, nor explain how such violence traumatized her throughout the episode preceding the crime but rather refers to scientific literature, which were matters within the purview of the superior courts below and can still be referred to in arguments by parties in this appeal without being adduced as additional evidence for the disposal of this appeal;
8.
Besides,it is submitted that the applicant has not demonstrated that the personality disorders or syndromes alluded to in the report are novel medical discoveries that she was precluded from raising and advancing at trial in support of the defence of insanity; what’s more, the largely persuasive judicial determinations by courts of other jurisdictions and academic writings contained therein are not within the speciality of the proposed medical expert requiring to be adduced as additional evidence; inevitably, the application falls woefully short of the standard set out in Mohamed Abdi Mahamud Case and as further pointed out by this Court in Wanga v Republic (Application E018 of 2023) [2023] KESC 108 (KLR) the Court’s exercise of this jurisdiction shall not be whimsical and the court would not be in haste in granting the same; alternatively, this being a second appeal against a conviction of murder, the Court’s jurisdiction as a second appeal as enunciated in Chemagong v Republic [1984] KLR 213 confines it to points of law; and
9.
Notingthat the applicant proposes a more nuanced and responsive test to be developed by the Court when evaluating applications of adducing additional evidence in criminal proceedings that recognize the distinctive character of criminal proceedings as distinguishable and separate from civil (or quasi-civil) proceedings; that the test may reflect as follows: (a) additional evidence as being directly relevant to the matter before the court; (b) additional evidence may influence or impact the result of the verdict either by removing vagueness or by conclusively addressing an issue at trial; (c) additional evidence should not have been available at trial; (d) additional evidence ought to assist the court in fair, just and conclusive determination of the issue; and (e) proportionality and prejudice that may arise if the additional evidence is admitted; and","0.
Having therefore considered the totality of the application, response and submissions, We Now Opine as follows:
i.
Section 20 of the Supreme Court Act as read with Rule 26 of the Supreme Court Rules grants this Court the power to admit additional evidence in an appeal before it. To consider the prayer for leave to admit additional evidence, the applicant is bound to satisfy all governing principles posited in our decision in Mohamed Abdi Mahamud Case which have now been enacted in Section 20 (2) of the Supreme Court Act as follows:
a.
is directly relevant to the matter before the Court;
b.
is capable of influencing or impacting on the decision of the Court;
c.
could not have been obtained with reasonable diligence for use at the trial;
d.
was not within the knowledge of the party seeking to adduce the additional evidence;
e.
removes any vagueness or doubt over the case;
f.
is credible and bears merit;
g.
would not make it difficult or impossible for the other party to respond effectively; and
h.
discloses a case of wilful deception to the Court.
ii.
Before applying these principles to the application at hand, we have considered the applicant’s proposal for a more nuanced test in criminal proceedings, such as this case, where the matter has been certified as a matter of general public importance. This is in contradistinction to the test in Mohamed Abdi Mahamud Case, applicable to quasi-civil proceedings that sought to balance the competing rights and interest of private parties.
iii.
Examining the test accentuated by the applicant, it embodies five of the eight guiding principles as now codified into law as encapsulated under Section 20 (2) of the Supreme Court Act, without distinction of applicability in civil, quasi-civil or criminal appeals. We did not understand the applicant to be challenging this statutory provision. At any rate, this is not the appropriate manner or forum to do so. We say no more.
iv.
Turning to the issue at hand and applying the above principles to the present application, our perusal of Para 6 on page 2 of the draft medical report indicates that the report sought to be introduced relates to the issue of BWS, focusing on medical and scientific literature as well as related literature for a comprehensive review of the applicant’s mental condition at the time of commission of the offence; paying particular attention to the intersection between mental health and the law, as well as the mental health of women, because of the defence of BWS which is specific to the female gender. Further, at page 21 of the Report, it is stated:
“
94.
In the preparation of this report, we debated the merits or otherwise of carrying out our own mental status of examination of RWK, so many years after the tragic events, but decided against it. To carry out a medical examination eight years after the event risks it being completely unreliable plus the equally serious risk of the introduction of new evidence not available at the time of trial. Our decision in this regard might be seen as the wrong one but it is our view that new evidence is not likely to be of additional value in this opinion on the BWS.” [Emphasis added].
v.
It is evidently manifest that the draft medical report sought to be adduced, though it relates to the issue of the doctrine of BWS, the primary issue before the Court in this appeal, is not pegged on a medical evaluation conducted on the applicant, and moreover, the evaluation was not conducted at the time of the commission of the offence by the applicant. Instead, it falls within the confines of medical and scientific literature and, to some extent, makes reference to judicial findings and arguments.
vi.
In our view, and without making further inferences that we reserve for the trial itself, this information was and remains readily available both to the litigants and to the Court. We are not persuaded that the same could not be adduced at the trial or before the Court of Appeal, the applicant appreciating that BWS traces its existence from common law.
vii.
Suffice to say, and bearing in mind that this is a second appeal, we agree with the respondent that the matters in the draft medical report are best left to arguments at the trial without having to be introduced in evidence. In any event, the appeal having been founded on certification as involving matters of general public importance, the Court will have to consider factors that transcend the applicant.
viii.
In the premises, we are not persuaded as to the merits of the application and hold that the same is for disallowing.
ix.
On costs, the award of the same is discretionary and follows the principle set out by this Court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. On this account, it is only prudent that we defer the issue of costs to abide by the outcome of the appeal.
11.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/33/eng@2024-07-05
Petition E014 of 2023,Ashmi Investment Limited v Riakina Limited & another (Petition E014 of 2023) [2024] KESC 30 (KLR) (28 June 2024) (Judgment),Judgement,Supreme court,Supreme court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola",28 June 2024,2024.0,Nairobi,Civil,Ashmi Investment Limited v Riakina Limited & another,[2024] KESC 30 (KLR),,"A. Introduction
1.
The appellant, Ashmi Investment Limited, vide its Petition of Appeal dated May 4, 2023 and filed on May 19, 2023 challenges the ruling of the Court of Appeal made on April 14, 2023. In the ruling, the Court of Appeal declined to review and set aside its judgment and orders made on November 19, 2021 in Civil Appeal No 384 of 2019, affirming the judgment of the Environment and Land Court (ELC) in Civil Suit ELC No 646 of 2014. The net effect of the impugned decision is that the appellant’s survey deed plan and resultant title to the suit properties - LR Nos 29957 and 29955 were cancelled. The Court of Appeal also agreed with the learned trial Judge of the ELC that the property was not available for allotment to the appellant and that the titles processed in favour of the appellant could not stand, the same having been issued during the pendency of the suit.
2.
The appeal invokes this Court’s jurisdiction under article 163 (4)(a) of the Constitution, section 15 (2) of the Supreme Court Act No 7 of 2011, and rules 3(5), 31 & 32 of the Supreme Court Rules 2020.
3.
The 1st respondent raised a preliminary objection, inter alia, challenging this court’s jurisdiction to hear the appeal as of right under the provisions of section 163(4)(a) of the Constitution. In the Ruling dated August 4, 2023, the court addressing itself on the merits of the preliminary objection, partly allowed the objection and restricted the appeal to the following issues:
i.
Whether the applicant was a bona fide owner of the suit properties within the provisions of article 40 of the Constitution; and
ii.
Whether the Court of Appeal misapplied the doctrine of lis pendens thereby denying the applicant a right to property.
B. Background
4.
The gist of the dispute is that on July 28, 1998, both the appellant and the 1st respondent were allotted Unsurveyed Industrial Plot ‘D’ off Mombasa Road (hereinafter “the Suit Property”) by the Commissioner of Lands.
5.
According to the appellant, by the Letters of Allotment dated July 28, 1998referenced 51776/XVI/159 and 51776/XVI/158, it was allotted Unsurveyed Industrial Plot ‘C’ and Unsurveyed Industrial Plot ‘D’ respectively for a term of 99 years from August 1, 1998. It proceeded to take up possession, paid the prerequisite fees in respect of ground rent, rates, standard premium, and survey fees on February 20, 2013as evidenced by copies of Department of Land Fee Receipts Nos 3195262 and 3195263, and sought approvals from the pertinent government offices. That thereafter, the Director of Surveys caused Plots ‘C’ and ‘D’ to be surveyed and given LR Nos 29955 (deed plan number 358614) and 29957 (deed plan number 358616) respectively (hereinafter “the Properties”).
6.
The appellant alleged that due to the dispute between the National Land Commission and the Ministry of Land Housing and Urban Development at the time, no land officer had been appointed to sign new titles and as such the titles were pending registration and issuance as at the time of institution of the suit before the ELC. That on May 19, 2014, the 1st respondent invaded the Suit Property in an attempt to forcefully take possession of the same prompting the appellant to institute a suit at the Environment and Land Court together with an application for interim relief.","F. Analysis and Determination
42.
It is this Court’s practice that when an appeal is instituted, under article 163(4)(a) of the Constitution, as of right, in any case involving the interpretation or application of the Constitution, we must of necessity satisfy ourselves of our jurisdiction to hear and determine the matter, whether an objection has been raised or not.
43.
As earlier stated, this court’s Ruling dated and delivered on August 4, 2023, addressed the challenge to its jurisdiction, and framed the following issues:
i.
Whether the applicant was a bona fide owner of the suit properties within the provisions of article 40 of the Constitution; and
ii.
Whether the Court of Appeal misapplied the doctrine of lis pendens and thereby denying the applicant a right to property.
44.
In arriving at the decision in the said ruling, the court appreciated that the appeal raised several issues. Some of those issues were not found to warrant the court’s exercise of jurisdiction such as inference of fraud and the attendant evidence. The court stated as follows:
“
(14)
… From our careful perusal of the record, we are satisfied that the dispute as to the ownership of land as a bona fide allottee under the circumstances and the court’s application of the doctrine of lis pendens bearing in mind the appellant’s argument surrounding this court’s advisory opinion concerning the dispute between the National Land Commission and the Ministry of Lands are issues that involve the interpretation and application of article 40 of the Constitution. The issues surrounding the inference of fraud and the attendant evidence do not fall for our determination as they were fully ventilated before the superior courts below…”
With that finding, the court proceeded to grant conservatory relief in favour of the appellant in respect of the suit property pending the hearing and determination of the appeal.
45.
We note that since the focus of our ruling was the preservation of the substratum for purposes of the appeal, it remains open for the court, now with the benefit of the arguments in the substantive appeal, to remain satisfied of the jurisdiction. As recently held in Kampala International University v Housing Finance Company Limited, SC Petition No 34 (E035) of 2022; [2024] KESC 11 (KLR) at para 46:
“
… we consider it important to restate the principle that without jurisdiction, a court of law is incapable of rendering any valid Ruling, Order or Judgment. In the Ruling cited by the appellant as authority for its contention that the issue of jurisdiction is now res judicata, all that this Court did, was to preserve the substratum of the appeal by holding that the same was arguable. The said ruling did not foreclose future interrogation of whether, the Court’s jurisdiction has been validly invoked, either by the court suo motu, or by a party to these proceedings” [Emphasis added]
46.
Indeed, in our ruling at paragraph 15, we gave the benefit of doubt to the appellant and thought it was necessary to allow the appellant to ventilate its appeal under the strict confines of article 163(4)(a) of the Constitution. With the benefit of the petition of appeal, submissions and the arguments by counsel for the parties, it emerges that the appeal transmutes from that against the ruling by the Court of Appeal on the appellant’s application for review of the judgment by the same court to an appeal against the judgment of the Court of Appeal. Why do we say so?
47.
The appellant through its Petition of Appeal dated May 4, 2023 challenges the ruling of the Court of Appeal, which dismissed an application for review of the Judgment of the Court of Appeal in Civil Appeal No 384 of 2019. This judgment by the Court of Appeal was made on November 19, 2021. In the ruling of April 14, 2023, the Court of Appeal (Okwengu, Sichale & Laibuta JJ A) held that none of the grounds for review raised disclosed errors of law that had occasioned real injustice or failure or a miscarriage of justice to the appellant’s prejudice, and that the appellant had not made a case for review to promote public interest and enhance public confidence in the rule of law. Consequently, the Court of Appeal found that the application for review lacked merit.
48.
This is the ruling that the appellant indicates in its Notice of Appeal dated April 28, 2023 that it intended to challenge before this court. Specifically, the Notice of Appeal provides as follows:
“
…
Notice of Appeal
(Rule 36 of the Supreme Court Rules, 2020)
Take notice that Ashmi Investment Limited, the appellant/ applicantherein dissatisfied with the Ruling made by the Court of Appeal (Honourable Justices Okwengu, Sichale & Laibuta) sitting at Nairobi delivered on 14th day of April 2023, intends to appeal to the Supreme Court against the whole of the said Ruling. …” [Emphasis ours]
However, in the contents of its Petition of Appeal, despite replicating in the heading of the pleadings that it is an appeal from the ruling aforesaid, the appellant’s focus shifts to the merits of the judgment of the Court of Appeal rendered on November 19, 2021, which was the subject of the review application. It is trite that the filing of a Notice of Appeal is a jurisdictional pre- requisite to any appellate jurisdiction. Under the Rules, there is a procedural timeline within which the Notice of Appeal should be filed. From the facts at hand, no Notice of Appeal indicating an intention to appeal against the said Judgment was ever filed by the appellant. The Notice of Appeal filed in this appeal is therefore limited to the Ruling aforesaid.
49.
The foregoing circumstances point to the ingenuity or otherwise inattentiveness to keeping in line with this court’s limited jurisdiction in instituting and prosecuting the appeal. The court cannot disregard such action. In University of Eldoret & Another v Hosea Sitienei & 3 others, SC Petition No 33 of 2019 [2020] eKLR, the court called out similar attempts in the following terms:
“
(12)
The main question that we interrogate is whether the appeal fits within either of the above principles. A consideration of the petition of appeal reveals that it is an appeal as of right against the ruling on review delivered on July 9, 2019…
13.
… Instead, they couched their appeal on the basis of the Court of Appeal judgment delivered on October 18, 2018. There is no evidence before us to demonstrate that the judgment of October 18, 2018 was being appealed. Indeed, the Notice of Appeal filed by the petitioners is instructive that the appeal is against the entire ruling of July 9, 2019.
14.
Had the appeal been against the judgment, we could perhaps have been persuaded differently. Any attempt by the petitioners to merge the two decisions in their appeal in our view is ingenious but must nevertheless be stifled at the outset.”
50.
Unrelenting, the parties approached the court again, this time seeking to be allowed to now pursue an appeal against the judgment. We asserted the above position in University of Eldoret & Another v Hosea Sitienei & 3 Others, SC Application No 8 of 2020; [2020] eKLR and held as follows:
“
[33]
It is evident that following the decision of the Court of Appeal, the applicants were faced with two options – to, either file for review of the decision to the same court or pursue an appeal before this court within either of the applicable jurisdictional contours. ... We agree with the applicants’ advocates that they could not concurrently pursue both options as that would be an outright abuse of judicial process. However, following from our decision in Fahim Yasin Twaha v. Timamy Issa Abdalla & 2 others [2015] eKLR, where a litigant has more than one option to pursue, he/ she must settle on one of them. The decision on which course to pursue is taken in advance and once it is taken, the other option is no longer available or placed in abeyance to be reverted to at a later stage in the event the initial option does not succeed. This means that when choosing, the litigant is expected to choose the best available option since she may not have any further recourse.
[34]
We therefore note that when the applicants preferred to pursue review of the decision, as they were entitled to, that was the best option in their assessment even if it turned out to be unsuccessful. Allowing them to take the second option at this stage, as if they never exercised the first option in the first place, would not only contribute to protracting litigation but also defeat the whole essence of finality of the litigation process. This would mean that precious judicial time and resources would have been unnecessarily expended in not settling the dispute but rather satisfying the litigants’ options to cherry pick and engage in trial and error at the altar of judicial process without the attendant consequences.” [Emphasis added]
51.
The present situation is no different to warrant any departure from our now known position. We are not persuaded that the court is seized of the requisite jurisdiction as the parameters of review of a judgment by the Court of Appeal are well settled. The appellant failed to construe a constitutional argument arising out of such parameters to necessitate the appeal particularly in so far as it relates to the issues framed in our ruling. The appellant went on to submit on the issues as if the appeal was against the substantive judgment, an outright affront to scarce judicial time, resources, process and procedure.
52.
Consequently, the focus of the appeal as presented is incongruent with the expectation accruing from the Notice of Appeal dated April 28, 2023. In the premises, we have no jurisdiction to entertain the same and it should be struck out.
53.
On the issue of costs, this court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR set out the legal principles that guide the grant of costs and enunciated that generally, costs follow the event and costs should not be used to punish the losing party, but to compensate the successful party for the trouble taken in prosecuting or defending a suit. Taking into consideration all circumstances of the hearings herein in all the three superior courts, and the non-participation of the respondents before us, there shall be no order as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/30/eng@2024-06-28
Petition (Application) E014 of 2024,Kinyanjui & 4 others v Kalinga & 6 others (Petition (Application) E014 of 2024) [2024] KESC 27 (KLR) (Civ) (28 June 2024) (Ruling),Ruling,Supreme court,Supreme court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",28 June 2024,2024.0,Nairobi,Civil,Kinyanjui & 4 others v Kalinga & 6 others,[2024] KESC 27 (KLR),,"Upon reading the notice of motiondated March 28, 2024and filed on April 2, 2024brought pursuant to sections23A and 24 of the Supreme Court Act and rules 31 the Supreme Court Rules,2020 seeking conservatory orders staying execution of the judgment and order of the Court of Appeal delivered on 22nd March, 2024 in Election Petition Appeal No. E002 of 2023 (Mombasa) Josephine Wairimu Kinyanjui & 4 others v Mary Charles Kalinga & others, pending the hearing and determination of the intended appeal; and that costs of the application abide the result of the appeal; and
2.
Upon considering the grounds on the face of the application, supporting affidavit sworn by Rachael Katumbi Mutisya on March 28, 2024 and submissions of even date filed on April 2, 2024, wherein it is contended that the Court of Appeal decision striking out the appeal for want of jurisdiction and declining to determine the substantive questions therein was contrary to article 164(3)(a) of the Constitution; and the application satisfies the test for grant of conservatory orders settled in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Application No 5 of 2014; [2014] eKLR (Munya 1 Case). Specifically, it is urged that the appeal is arguable with a high likelihood of success as it raises substantial questions of constitutional interpretation, to wit, whether the Court of Appeal, in declining to hear and determine the said questions amounts to a limitation of the applicant’s constitutional right of appeal under article 164(3) of the Constitution; whether the said decision was in deliberate disregard of articles 38(3) and 193(1) of the Constitution as read with section 25 of the Elections Act; whether it erroneously upheld the High Court’s finding thus usurping the 1st respondent’s constitutional mandate under article 88(4)(e); and whether the decision failed to adjudicate on whether a court can grant reliefs not specifically pleaded.
3.
Further, the applicants contend that unless conservatory orders are granted, the appeal will be rendered nugatory to the applicants’ prejudice. They add that, unless the orders sought are granted, the 2nd respondent will declare the seats currently held by nominated Members of the County Assembly of Kwale vacant, to their detriment. To support this assertion, they cite this Court’s decision in George Mike Wanjohi v Stephen Karuiki & 2 others, SC Application No 6 of 2014; [2014] eKLR. The applicants also urge that it is in public interest for this Court to substantially pronounce itself on the Court of Appeal’s jurisdiction to hear appeals from the High Court, emanating from the election of Members of a County Assembly pursuant to article 164(3)(a) as read with section 85A of the Elections Act. In support of that plea, they rely on this court’s decision in the Munya case [supra]; and
4.
Having read and considered the 1st respondent’s replying Affidavit sworn by Mary Charles Kalinga on April 9, 2024 and submissions dated April 15, 2014 and filed on 17th April, 2024, to the effect that that the application has failed to meet the yardstick for grant of conservatory orders, is unmeritorious, and ought to be struck out. To support this assertion, the 1st respondent urges that this Court has pronounced itself on the only issue for determination in the appeal before it, and that there are no new circumstances in law, to warrant the Court to depart from its findings. To buttress that submission, the 1st respondent cites this court’s decision in Hamdia Yaroi Tumaini Kombe & 2 others v Faith Tumaini Kombe, Amani National Congress & Independent Electoral and Boundaries Commission, SC Petition No 38 of 2018; [2019] eKLR where the issue of appeals from the election of members of County Assemblies was settled and it is therefore urged that by virtue of this pronouncement, both the Court of Appeal and the Supreme Court lack the jurisdiction to hear appeals emanating from the said election; and
5.
Upon reading and considering the applicants’ further affidavit, rejoinder affidavit both sworn by Rachael Katumbi Mutisya on April 22, 2024 and May 15, 2024 respectively, and submissions dated April 22, 2024, wherein they reiterate their grounds in support of the application, and additionally urge that there are exceptional circumstances to warrant this court’s intervention. To this end, the applicants submit that, unlike other appeals before the Court of Appeal where the appellate court had declined to assume jurisdiction, the court in this matter heard the appeal on substantive issues and having done so, ought to have decided all of them. It is also contended that the issue of application of the doctrine of stare decisis to defeat the instant application or appeal cannot be determined at a preliminary stage without interrogating the facts and circumstances in the appeal; and
6.
Considering that before the Court of Appeal, the 1st respondent had raised a preliminary objection, that is, whether the Court of Appeal had jurisdiction to hear the appeal and while upholding the preliminary objection, the appellate court struck out the appeal without delving in the determination of the substantive issue raised therein; and
7.
Cognisant of the provisions of section 23A of the Supreme Court Act, granting this Court jurisdiction to issue an order for stay of execution, an injunction, a stay of further proceedings or any other conservatory or interim orders, on such terms as the court may deem fit; and
8.
Further considering this court’s guiding principles for grant of stay of execution and conservatory orders in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No 5 of 2014 [2014] eKLR; and restated in Board of Governors, Moi High School, Kabarak & Another v Malcolm Bell, Petition Nos 6 & 7 of 2013; [2013] eKLR, to the effect that before this court grants an order for stay of execution, an appellant, or intending appellant, must satisfy the court that;
i.
the appeal or intended appeal is arguable and not frivolous;
ii.
unless the order of stay sought is granted, the appeal or intended appeal were it to eventually succeed, would be rendered nugatory; and,
iii.
that it is in the public interest that the order of stay be granted.
9.
Appreciating that in the case of Hamdia Yaroi Tumaini Kombe & 2 others v Faith Tumaini Kombe, Amani National Congress & Independent Electoral and Boundaries Commission, SC Petition No 38 of 2018; [2019] eKLR, we determined as follows:
‘[33]
The foregoing analysis leads us to the conclusion that, in agreement with the Court of Appeal, that in the absence of an express statutory provision, no second appeals lie to the Court of Appeal, from the High Court, emanating from an election petition concerning the validity of the election of a member of the County Assembly. As this determination conclusively disposes of the appeal before us, we shall not consider the second issue.’","10.
We Now Opine As follows:
i.
Having considered the pleadings and submissions by the parties herein, it is evident that the 1st respondent’s challenge on the court’s jurisdiction goes to the competency of the motion as well as the appeal before us. It is therefore apposite to deal with this issue before delving into the merit of the motion;
ii.
It is common ground that the Court of Appeal struck out the appeal before it for want to jurisdiction, guided by our pronouncement in Hamdia Yaroi Tumaini Kombe & 2 others v Faith Tumaini Kombe [supra], wherein this Court determined that the Court of Appeal lacked jurisdiction to hear an appeal from the High Court, emanating from an election petition concerning the validity of the election of a Member of a County Assembly;
iii.
The present motion and appeal relate to the nomination of members of a County Assembly and it is our categorical finding that, the holding in Hamdia Yaroi Tumaini Kombe applies with equal force to disputes relating to election by nomination to County Assemblies as the process of resolving such disputes start at the magistrates’ court like that of directly elected members.
iv.
Having so pronounced, it goes without saying that this court cannot have the jurisdiction to hear the instant motion or appeal. To sustain the Petition of Appeal having made this finding would also not be a useful venture on the part of the court or parties, and it would be in the interest of justice and expeditious disposal of cases that we do not extend the life of such a petition which is obviously premised on a misapprehension of our jurisdiction. Consequently, we find that this court has no jurisdiction to hear and determine Petition No E014 of 2024 or the instant application;
v.
In any event, even if this court were to determine the merits of the instant application, it is uncontested that the Court of Appeal simply struck out the appeal before it on grounds that it lacked jurisdiction to entertain the matter. Accordingly, the appellate court did not issue a positive order capable of execution, to warrant grant of stay or conservatory orders. The Motion would have therefore failed to satisfy the principles established in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [supra] and was one for dismissal.
11.
On Costs, in the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate of & 4 others, SC. Petition No 4 of 2012; [2013] eKLR, we settled that costs follow the event and that the court may in appropriate cases exercise discretion and decide otherwise. In the circumstances, having found that we have no jurisdiction to address any of the issues raised in both the petition of appeal and the motion before us, we shall exercise discretion and order that there shall be no order as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/27/eng@2024-06-28
Application E022 of 2023,Mwambeja Ranching Company Limited & another v Kenya National Capital Corporation (Application E022 of 2023) [2024] KESC 28 (KLR) (28 June 2024) (Ruling),Ruling,Supreme court,Supreme court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",28 June 2024,2024.0,Nairobi,Civil,Mwambeja Ranching Company Limited & another v Kenya National Capital Corporation,[2024] KESC 28 (KLR),,"Upon perusingthe notice of motion dated February 26, 2024 and filed on March 4, 2024, pursuant to articles 10(2)(b), 25(c), 48, 50(1), 159 and 259 of the Constitution, sections 3A and 21(A) of the Supreme Court Act 2011, and rule 28(5) of the Supreme Court Rules 2020, seeking the following orders, that the matter be orally heard by a full bench of the court; the court be pleased to recall, review and/or set aside its ruling delivered on October 6, 2023 in Application No E022 of 2023; certification that the case raises matters of general public importance and leave to appeal to the court against the whole Judgment; and costs; and
2.
Upon reading the grounds on the face of the application, and supporting affidavit sworn by Harry Horn (Junior) on February 26, 2024, wherein he avers that; by its impugned ruling, the court failed to consider the applicant’s grounds for certification, in particular, the uncertainty caused by conflicting judgments on the retrospective application of the in duplum principle; the court erroneously found that the applicants had filed a composite application at the Court of Appeal seeking amendment of the notice of appeal, review of the Judgment of the court dated August 6, 2019 and certification in the alternative, yet certification was an alternative prayer only applicable in the event the prayer for review was disallowed; and the court erroneously held that the applicants forfeited their right of appeal to the Supreme Court when they opted for review of the Court of Appeal’s Judgment; and
3.
Upon considering the applicants’ submissions dated February 26, 2024 and filed on 2 February 9, 2024, wherein they restate their arguments for certification and further argue that the court has inherent jurisdiction to hear the instant application premised on their right to a fair hearing, access to justice, property and the fair determination of contractual rights, which imperatives override the narrow confines of section 21A of the Supreme Court Act and the principles delimiting circumstances for review established in the case of Fredrick Otieno Outa v Jared Odoyo Okello & 3 others SC Petition No 6 of 2014; [2017] eKLR (the Fredrick Outa case). Additionally, the applicants submit that the court retains residual jurisdiction to depart from its own decision in order to correct a miscarriage of justice. In support of this submission, they cite the cases of Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited SC Application No 16 of 2012; [2014] eKLR; Deynes Muriithi & 4 Others v Law Society of Kenya & another SC Application No 12 of 2015; [2016] eKLR; and Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2013] eKLR; and,
4.
Upon considering the respondent’s grounds of objection and written submissions both dated March 11, 2024, and filed on March 12, 2024, to the effect that the application, is misconceived in view of the course adopted by the applicants at the Court of Appeal, in effect forfeiting their right to appeal to this court; does not disclose any circumstance under which the court’s jurisdiction to review its decisions as delineated in law would be exercisable in the manner sought; is a disguised appeal against the court’s ruling dated October 6, 2023 and therefore an abuse of court process; and, has been filed after an unexplained, inordinate and inexcusable delay of 6 months after the Ruling was delivered. Ultimately, it is urged that the application has failed to meet the threshold for review of the court’s own decisions under section 21A of the Supreme Court Act, and as established in the Fredrick Outa Case and Senate of Kenya & 3 Others v the Speaker of the National Assembly & 10 others; (Application 7 (E013) of 2022) [2023] KESC 1 (KLR); and
5.
Noting this court’s ruling dated October 6, 2023, on the question whether the issues raised by the applicants, now restated in the instant application amounted to matters of general public importance, wherein we pronounced ourselves thus:
“
(7)
…The motion lacks merit as the applicant has not satisfactorily highlighted any issues, the determination of which, would transcend the circumstances of the matter at hand so as to justify a review of the Court of Appeal’s ruling denying certification. Neither has the applicant raised any substantial question of law, the determination of which, would have a significant bearing on the public interest”
6.
Appreciating the provisions of section 21A of the Supreme Court Act, rule 28(5) of the Supreme Court Rules, 2020 as well as the principles established by this court in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others [Supra] where the court delineated the following as exceptional circumstances which would warrant the exercise of its limited jurisdiction for review:
“
(92)
… However, in exercise of its inherent powers, this court may, upon application by a party, or on its own motion, review, any of its judgments, rulings or orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:
i.
the judgment, ruling, or order, is obtained, by fraud or deceit;
ii.
the judgment, ruling, or order, is a nullity, such as, when the court itself was not competent;
iii.
the court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
iv.
the judgment or ruling, was rendered, on the basis of a repealed law, or as a result of a deliberately concealed statutory provision.”","We now determine as follows:
i.
Having carefully appraised the application, the responses thereto and submissions by the parties, we find that the applicants have not demonstrated any special and compelling circumstances to warrant an oral hearing of the instant application, in exception to the provisions of rule 31(1) of the Supreme Court Rules, 2020, which require that applications before this court shall be determined by way of written submissions;
ii.
More importantly, guided by the provisions of section 21A of the Supreme Act, rule 28(5) of the Supreme Court Rules and the principles established by this court in the Fredrick Outa case, we find that the application has not met the conditions enunciated therein; and
iii.
The applicants have not demonstrated the exceptional circumstances that would warrant a review of this court’s ruling. Specifically, the applicants have not established that the ruling of this court dated October 6, 2023 was obtained by fraud, deceit or rendered per incuriam;
8.
Consequently and for the aforestated reasons, we make the following orders:
i.
The notice of motion dated February 26, 2024 and lodged on March 4, 2024 is hereby dismissed;
ii.
The applicants shall bear costs of the application.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/28/eng@2024-06-28
Application E006 of 2024,"Nairobi Bottlers Limited v Ndungu & another (Application E006, E007, E008 & E009 of 2024 (Consolidated)) [2024] KESC 26 (KLR) (28 June 2024) (Ruling)",Ruling,Supreme court,Supreme court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",28 June 2024,2024.0,Nairobi,Civil,Nairobi Bottlers Limited v Ndungu & another (,[2024] KESC 26 (KLR),,"Before the Court are four Motions all filed by Nairobi Bottlers Limited, the applicant, seeking similar orders arising from the decision of this Court in a Ruling delivered on 10th November 2023. We will therefore dispose of them together in this ruling to save on precious judicial time; and
2.
Upon reading the four Motions dated 19th February, 2024 and filed on 28th February, 2024 under Section 21A of the Supreme Court Act, 2011 seeking the following orders:
1.
A stay of proceedings be hereby ordered on the taxation of the Party and Party Bill of Costs dated 29th November 2023 for Civil Applications No E024, E030, E034 & E038 of 2023 pending the hearing and determination of these applications;
2.
This Court be pleased to review and vacate the order awarding costs against Nairobi Bottlers Limited in the Ruling dated 10th November, 2023;
3.
There be no costs order on these Applications; and
3.
Upon perusing the grounds on the face of the applications, the supporting affidavits of Joe Mutisya, the applicant’s Finance Director and the submissions dated on 27th February, 2024 filed on its behalf contending that this Court in its Ruling delivered on 10th November, 2023 struck out the applicant’s appeal alongside its two applications being E030 of 2023 and E038 of 2023 seeking stay of execution of the decision of the Court of Appeal and extension of time within which the applicant should have filed its appeal, respectively; the impugned Ruling effectively allowed the 1st respondent’s application seeking the striking out of the applicant’s appeal for being filed out of time; the Court awarded the 1st respondent costs of the three applications and the appeal. The applicant in that regard contends that; the 1st respondent instituted proceedings before the High Court in Petition 325 of 2015, the genesis of these proceedings, not on his own behalf but rather on behalf of the public thus rendering the proceedings public interest litigation; the 1st respondent’s locus standi even on appeal remained the same, that of a public interest litigant; notwithstanding the costs follow the event rule provided for in Section 27 of the Civil Procedure Act, Cap 21, this Court has established legal precedent that is now trite law to the effect that courts should not award costs in public interest litigation for instance in the cases of Okoiti & 2 others v Attorney General & 14 others (Petition (Application) 2(E002 of 2021) [2023] KESC, Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR and Director of Public Prosecution v Michael Siste Mwaura Kamau & 4 others [2020] eKLR.
4.
Further, it is argued that when the Court was preparing its impugned Ruling delivered on 10th November 2023, it had not been brought to its attention that it was deciding a public interest litigation matter, due to the issue not having arisen for determination. Citing the decision in Martin Wanderi & 106 others v Engineers Registration Board & 5 others; Egerton University & 43 others (Interested Parties) (Application 39 of 2019 & Petition 4 of 2016 (Consolidated)) [2020] KESC 44 (KLR), it is contended that the Court has previously ruled that not being aware of material facts is an exceptional circumstance necessitating a review of its decision. Additionally, it is urged that, despite the proceedings being public interest litigation, the 1st respondent is now claiming the sum of Kshs 90,009,290/- in his Bill of Costs dated 29th November, 2023 and yet there is no reason to warrant a departure from the current judicial precedent which the applicant considers to be the correct position in law; and
5.
Upon considering the 2nd respondent’s submissions dated 25th March, 2024 filed in support of the Motions on similar grounds as the applicant; and
6.
Upon perusing the 1st respondent’s replying affidavit sworn by Mark Ndumia Ndungu, on 7th March, 2024 together with written submissions of even date filed in opposition to the Motions and to the effect that the applications are incurably defective on account of the applicant failing to provide the specific provision of law that it alleges the Court relied on in granting costs and which had since been repealed; the applicant instead chose to rely on case law specifically on the decision in Okoiti & 2 others v Attorney General & 14 others(supra); that the applicant conflates past jurisprudence for repealed law; Section 2 of the Interpretation And General Provisions Act does not apply to the construction or interpretation of laws not written down; that Parliament’s intention in enacting regard to Section 21A of the Supreme Court Act was to limit the grounds of review to only those that may render a decision to be tainted with illegality and to bring about finality in litigation; the present review applications were disguised appeals and do not fall within the confines of Section 21A; and
7.
Further, the 1st respondent urges that the present applications were filed late with no explanation offered for the delay; due to the gravity of review proceedings, any party wishing to exercise this right should do so at the earliest opportunity; the instant applications were a pure afterthought triggered by the taxation proceedings; the Court should not exercise its discretion in favour of the applicant for failing to approach the court in good faith and for taking inconsistent positions, as initially, after service of the 1st respondent Bill of Costs, the applicant sought for more time to respond; yet when parties appeared before Court on 22nd January, 2024, the applicant sought for 30 days within which to negotiate with a view to settle the Bill of Cost; but even after being granted the 30 days to do so, it did not make any efforts to engage the 1st respondent and negotiate. Instead, the applicant filed the present applications taking the 1st respondent by surprise; and
8.
Finally, the 1st respondent submits that the granting of costs against the applicant is not an exceptional circumstance considering that the applicant in its Petition of Appeal and two applications had sought for costs to be granted in its favour; conversely the 1st respondent equally sought for costs; therefore if the applicant would have appreciated costs being granted in its favour then it ought to have appreciated that costs could also have been granted against it in the event it was unsuccessful; that in any event in the case of Okoiti & 2 others v Attorney General & 14 others(supra) the Court did not merely declare that costs were not to be awarded in public interest litigation but created an exception to the effect that where a public interest litigant seeks for costs and that party is unsuccessful, then costs may be awarded against such a party; and further, the manner in which the applicant has sought for costs, despite claiming that the proceedings were public interest in nature, was consistent with the general rule that costs follow the event; and the applicant has failed to prove that the applications fall under any of the parameters for review as set out in Section 21A of the Supreme Court Act; and
9.
Upon considering the applicant’s rejoinder in its replying affidavit sworn by Joe Mutisya on 15th March, 2024 and supplementary submissions of even date reiterating the grounds in its applications and further contending that its applications were not delayed as there are no time limits set for filing an application for review under Section 21A of the Supreme Court Act; pursuant to Section 3 of the Judicature Act, the courts, including the Supreme Court are bound by Common Law and once this Court has rendered itself on the issue of costs in the aforestated cases, the non-imposition of costs in public interest litigation became a set principle forming part of Common Law; though not bound by its decisions, adherence to them provides a degree of certainty and the court failed to offer any reasons for deviating from its previous position on the issue and the applicant considered this to be an unexplained, isolated and peculiar occurrence; it denied approaching the court in bad faith urging that it did engage with the 1st respondent in negotiations aimed at convincing the 1st respondent to withdraw its taxation proceedings due to the fact that the matter was by nature a public interest litigation; the issue of the 1st respondent’s locus standi was not determined by this Court and therefore the finding by the Court of Appeal still stands to the effect that the proceedings were public interest litigation and the 1st respondent, a public interest litigant; and having considered the applications, affidavits, rival arguments by the parties, we now opine as follows:","Guided by the provisions of Section 21A of the Supreme Court Act as well as Rule 28(5) of the Supreme Court Rules, 2020, together with the principles enunciated in the cases of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others; SC Petition (Application) No 4 of 2012, [2013] eKLR and Fredrick Otieno Outa v Jared Odoyo Okello & 3 others; SC Petition 6 of 2014 [2017] eKLR, we restate this court’s power to review its own decisions as follows: as a general rule, the Supreme Court cannot sit on appeal over its own decisions, or to review its decisions, save to correct obvious errors apparent on the face of the decision. However, in the exercise of its inherent powers, the court may review its decision(s) “in exceptional circumstances, so as to meet the ends of justice” in the following instances where:
i.
The judgment, ruling or order is obtained through fraud, deceit or misrepresentation of facts;
ii.
The judgment, ruling or order is a nullity by virtue of having been made by a court which was not competent;
iii.
The court was misled into giving judgment, ruling or order under the belief that the parties have consented thereto; and
iv.
The judgment, ruling or order was rendered on the basis of repealed law or as a result of a deliberate concealment of a statutory provision.
11.
Having considered the pleadings and submissions by the parties herein, and applying these conditions to the applications before us, we find that the applicant has failed to demonstrate that the Ruling of this Court of 10th November, 2023 was obtained by fraud or deceit, is a nullity, was rendered on the basis of a repealed law, or as a result of a deliberately concealed statutory provision, or that the court was misled into giving its Ruling under review on a mistaken belief that the parties had consented thereto, as per the legal principles settled in the Fredrick Otieno Outa case; and
12.
In our view, the instant applications are appeals disguised as Motions for review, and therefore do not fall within the confines of the parameters prescribed in the foregoing paragraphs. Consequently, we have no hesitation in declaring that, as framed, the applications fall short of the exceptional circumstances, and we decline the invitation to exercise the court’s limited discretion to review the Ruling.
13.
On costs, the award of the same is discretionary and follows the principle set out by this court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. Since this litigation must come to an end and no party can be faulted for the review proceedings, each party shall bear its own costs.
14.
Accordingly, and for the reasons aforestated we make the following orders:
i.
The Applicant’s four motions being:
a.
Civil Application No E006 of 2024 dated 19th February, 2024 and filed on 28th February, 2024
b.
Civil Application No E007 of 2024 dated 19th February, 2024 and filed on 28th February, 2024
c.
Civil Application No E008 of 2024 dated 19th February, 2024 and filed on 28th February, 2024
d.
Civil Application No E009 of 2024 dated 19th February, 2024 and filed on 28th February, 2024
Be and are hereby dismissed; and
ii.
Each Party shall bear their costs of the present Applications.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/26/eng@2024-06-28
Application E053 of 2023,"Odongo v Clerk, Nakuru County Assembly & 5 others (Application E053 of 2023) [2024] KESC 29 (KLR) (Civ) (28 June 2024) (Ruling)",Ruling,Supreme court,Supreme court,"MK Koome, PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola",28 June 2024,2024.0,Nairobi,Civil,"Odongo v Clerk, Nakuru County Assembly & 5 others",[2024] KESC 29 (KLR),,"Upon perusing the originating motion by the applicant dated December 28, 2023and filed on February 8, 2024 pursuant to articles 159, 163(4) of the Constitution, section 15 (b) of the supreme Court Act, 2011 and rules 33(2) and (3) of the supreme Court Rules, 2020 seeking inter alia; a review of the Court of Appeal decision declining to grant certification of the intended appeal as a matter of general public importance, and leave to appeal to the Supreme Court against the judgement of the Court of Appeal; and.
2.
Upon perusing the proposed issues for consideration, the grounds on the face of the application, supporting affidavit sworn by Kenneth Odongo, the applicant herein dated December 28, 2023 and filed on February 7, 2024 and written submissions dated February 7, 2024 and filed on February 7, 2024 wherein he submits that the intended appeal raises 13 issues of general public importance, which can be summarised as follow;
i.
Whether the Employment and Labour Relations Court (ELRC) lacks jurisdiction to entertain disputes relating to recruitment, selection, nomination and appointment of employees; and whether such acts are of general public importance requiring further input by this Court.
ii.
Whether the list of disputes set out under section 12 of the Employment and Labour Relations Act No 20 of 2011 (ELRC Act) can be said to be limited and restrictive or whether the Act contemplates other employment questions not captured thereunder.
iii.
Whether in light of the provision of articles 23 and 258 of the Constitution of Kenya as well as rule 4 (2) as read together with rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedural Rules of Kenya the jurisdiction of the Employment and Labour Relations Court is only limited to parties before it.
iv.
Whether the learned judges erred in law and fact and fell into grave error in their application of sections 77, 85 and 87 of the County Governments Act particularly in so far as it relates to nomination of County Chief Officers by the Governor under section 45 of the County Governments Act.
v.
Whether it is a grave miscarriage of justice and violation of right to access to justice in public litigation to order the applicant to pay costs of the suit particularly where the suit has been shown to raise serious issues of law for determination.
3.
The applicant reiterates that article 162 of the Constitution as read with the preamble and section 12 of the ELRC Act is not exhaustive and anticipates the existence of other labour disputes not necessarily captured under the Act. He has also asserted that, section 12(2) also tends to suggest that a dispute can be brought as against any one of the parties by anybody else and not necessarily amongst the one listed, and in any event, sections 5(1), 5(8) and 9 of the Employment Act recognises that an employee includes a prospective employee or an applicant to employment. Further, that this Court will be called upon to examine the import of sections 45, 77 and 88 of the County Governments Act and more particularly, whether an appointment by a County Governor under section 45 can be interpreted to include the disputes stipulated under section 77 of the Act and which are required to undergo dispute resolution mechanisms prior to instituting the matter in court. He relied on the High Court decisions in United states International University (UsIU) v Attorney General [2012] eKLR, Ali Jarso Wako & Another v Ministry of Interior & Coordination of National Government & 5 Others; Public service Commission & 5 Others (Interested parties) [2020] eKLR and Daniel N Mugendi v Kenyatta University & 3 others (2013) eKLR, Okoiti v Attorney General; Njenga (Interested Party) [2022] eKLR, Evans Ladtema Muswahili v Vihiga county Public service Board & 2 others; Marley Ezekiel Ayiego (Interested Party) [2021] eKLR, Trusted society of Human Rights Alliance v Nakuru Water and sanitation services Company & Another [2013] eKLR being decisions where courts have held that the ELRC is the only valid court to entertain disputes relating to recruitment, selection, nomination and appointment of employees; and
4.
Upon perusing the 1st, 2nd and 3rd respondent’s replying affidavit sworn by Joel Kariuki Mwangi, the 2nd respondent herein, and submissions both dated February 27, 2024 and filed on March 11, 2024 wherein it is submitted that the applicant has not satisfied the threshold for certification of the appeal as being one that a point of law of general public importance is involved as set out in Hermanus Phillips steyn v Giovanni Gneechi- Ruscone [2013] eKLR, Thika Coffee Mills v Rwama Farmers Cooperative society Limited [2020] eKLR, Malcom Bell v Daniel Torotich Arap Moi & Another [2013] eKLR and Goldenlime International Limited vs Blue sea shopping Mall Limited & 3 others (Motion 21 of 2016) [2021] KESC 2 (KLR) (CIV) (8th October 2021) (Ruling). The said respondents further urge that, in the instant appeal, the issues in contest did not concern constitutionality of the said section 12 of the ELRC Act and the Court of Appeal merely gave the provision of the law a literal interpretation. In addition, there is now settled precedence for the ELRC to rely upon on the subject at hand, and as such, there is no need for this Court’s intervention. Lastly, they submit that the dispute has since been overtaken by events since the recruitment process for the county officers has been finalised and the said officers have already been enrolled to the payroll; the Court will thus be engaged in an appeal that has since been rendered moot; and
5.
Upon equally perusing the 4th, 5th and 6th respondent’s replying affidavit sworn by Dr samuel Mwangi Mwaura, acting County secretary of the 5th respondent and their submissions both dated February 27, 2024 and filed on March 1, 2024 wherein it is submitted that the applicant has failed to effectively set out the elements of general public importance that would require our attention; secondly, that the supreme Court has already rendered itself with finality with regard to the jurisdiction of the ELRC which was the only possible element of general public importance that was raised in the application and they relied on the same authorities as the 1st to 3rd respondents to buttress this point; and
6.
Noting that the dispute involved the recruitment of 21 Chief officers of the County Government of Nakuru by the respondents, the ELRC in Pet No E017 OF 2022 (Nderitu J) held that it had jurisdiction to handle the same while the Court of Appeal found that there was no employee/employer relationship between the applicant and the 1st respondent, nor an employment and labour relations dispute as contemplated by article 162(2) of the Constitution or section 12(1) of the ELRC Act. And further noting that the Court of Appeal took the view that the ELRC fell in error when it proceeded to assume and arrogate upon itself, a jurisdiction that it did not have and furthermore that, by extension the 1st respondent did not have the locus standi to file the petition nor was the 1st respondent amongst the persons contemplated by section 12(2) of the ELRC Act who may lodge a complaint or a claim before the Court. Lastly, appellate court held that the Governor did not act in isolation of the County service Board hence the provisions of sections 77 and 87 of the Parliamentary Service Commission Act are couched in mandatory terms ousting the jurisdiction of the Court in the first instance; and
7.
Bearing in mind article 163(5) of the Constitution, section 15B of the supreme Court Act and rule 33(1) and (2) of the supreme Court Rules, 2020 which grants this court jurisdiction to review the Court of Appeal’s decision on an application for Certification, as one of general public importance; and this Court’s guiding principles on certification of a matter as one involving general public importance set out in Hermanus Phillipus steyn vs. Giovanni- Ruscone Sup Application No 4 of 2013 [2013] eKLR and the additional guidelines in Malcom Bell v Daniel Toroitich Arap Moi & Another, SC Application No 1 of 2013; [2013] eKLR;","We have considered the totality of the application, submissions put forth, and We opineas follows:
i.
The Court of Appeal in dismissing the application for certification found that the applicant had not set out why its decision on settled principles required consideration by the supreme Court and how it impacts third parties or other cases. The appellate court also held that the applicant had not set out any contradictory decisions, and further had failed to demonstrate that the court’s reasoning took a trajectory that warrants constitutional interpretation. The court additionally took the view that a matter cannot be reopened before the Supreme Court simply because a litigant is of the view that the decision should have been different or a certain weight ought to have been given to a particular piece of evidence.
ii.
The decisions cited by the applicant and relied upon during the appeal, as a basis to seek certification, now repeated in this application, were decisions emanating from the High Court. The Court of Appeal subsequently, and in light of the High Court decisions, rendered its decisions in Attorney General & 2 others v Okiya Omtata Okoiti & 14 others [2020] eKLR and National Social Security Fund Board of Trustees v Kenya Tea Growers Association and 14 others (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR) which determined the jurisdiction of the ELRC and the capacity of the parties who might approach it. The applicant has not advanced any cases that are distinguishable from these decisions of the Court of Appeal.
iii.
The Supreme Court has equally rendered decisions in respect to the provisions of article 162 and section 12 of the ELRC Act. In Republic v Karisa Chengo & 2 others SC Petition No 5 of 2015 [2017] eKLR for example, we determined that the ELRC and High Court are different and autonomous courts and exercise different jurisdictions; the jurisdiction of the ELRC being limited to matters provided for in the statute regulating the same; and in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) SC Petition No 3 of 2016 [2019] eKLR the court held that nowhere in the ELRC Act is there jurisdiction conferred on the ELRC to resolve issues between trustees of a pension scheme and members of the scheme (pensioners) nor does a pensioner fall within the listed category of persons and parties that can make an application or institute proceedings before the ELRC.
iv.
Similarly, in Kenya Tea Growers Association & 2 others versus National social security Fund Board of Trustees & 13 others SC Petition No E004 of 2023 as Consolidated with Petition No E002 Of 2023, a case that challenged the validity of the NSSF Act, the court held that the dispute roped in disputants contemplated under section 12(2) of the ELRC Act; and that the ELRC has jurisdiction to determine the constitutional validity of a statute in matters relating to employment and labour. suffice to say, the statute in question must be in focus and at the centre of the dispute in question.
v.
The above cases demonstrate that this ourt has demarcated the jurisdiction of the Employment and Labour Relations Court in line with the provisions of article 162 of the Constitution as read with section 12 of the ELRC Act. The common theme in all the cases is that a dispute falling within the purview of the ELRC should emanate from an employee-employer relationship and/or affect its status. This is different from the High Court, which has unlimited jurisdiction in civil and criminal matters while the specialized courts under Article 162 are limited in terms of their jurisdiction and the persons who might approach it. The Court of Appeal decision therefore correctly interpreted the provisions of section 12 of the ELRC Act and arrived at a proper interpretation of that section in the circumstances of the present case.
vi.
As for the application of sections 77, 85 and 87 of the County Governments Act particularly in so far as it relates to nomination of County Chief Officers by the Governor under section 45 of the same Act, the Court of Appeal gave a literal interpretation to this sections; and the applicant has not distinguished how the same is contradictory or has a significant bearing upon the public interest; the same is equally premised on factual dispositions of which we held in Hermanus that a determination of fact in contests between parties cannot be in itself, a basis for granting certification for an appeal before the Supreme Court.
vii.
The applicant, lastly, decries the Court of Appeal’s order directing him to pay costs of the suit. Again, in Hermanus we held that a mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification. We have equally settled the issue of costs in public interest litigation in Okiya Omtatah Okoiti & 2 others v Attorney General SC Appl No 2 (E002) of 2021 which follows a determination that the public interest in any litigation in the matter must be obvious; and that costs shall follow the event principle is however not disbarred in such proceedings-each case being looked at in its peculiar circumstances.
9.
On costs in the present application, award of the same is discretionary, given the nature of the issues set out and guided by this court’s decision Jasbir singh Rai & 3 others v Tarlochan singh Rai & 4 others SC Petition No 4 of 2014; [2014] eKLR. In the present application, we find that the order that would best apply to the circumstances is that each party bears their costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/29/eng@2024-06-28
Petition E005 of 2023,Stanbic Bank Kenya Limited v Santowels Limited (Petition E005 of 2023) [2024] KESC 31 (KLR) (Civ) (28 June 2024) (Judgment),Judgement,Supreme court,Supreme court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu",28 June 2024,2024.0,Nairobi,Civil,Stanbic Bank Kenya Limited v Santowels Limited (,[2024] KESC 31 (KLR),,"A. Introduction
1.
This appeal is premised on article 163(4)(b) of the Constitution. It was filed pursuant to leave issued by the Court of Appeal by its ruling of February 17, 2023. The matters certified as being of general public importance, revolve around the question of whether banks and financial institutions are required to seek approval of the Cabinet Secretary responsible for matters relating to Finance (Cabinet Secretary) envisaged under section 44 of the Banking Act (cap 488 Laws of Kenya) prior to increasing rates of interest on loans and/or facilities advanced to their customers. Concomitantly, whether the issue of interest is simply a contractual matter subject to mutual negotiation by the institutions and their customers.
B. Background
i. Factual History
2.
At one point, Stanbic Kenya Limited (the appellant) and Santowels Limited (the respondent) were in a bank/customer relationship which led to the appellant granting the respondent several facilities between 1993 and 1997. The pertinent terms of the said facilities were that they could be renewed and/or extended; the rate of interest was 3% per annum above the appellant’s base lending rate; and the appellant reserved the right to vary the rate of interest. Periodically, the appellant notified the respondent of interest adjustments whenever they occurred, and the respondent paid the interest as and when it fell due. However, in 2002 the parties’ relationship became difficult as the respondent begun having doubts concerning the interest charged by the appellant. Consequently, the respondent paid the outstanding debt and closed its accounts with the appellant in the same year.
3.
Nonetheless, in 2003 the respondent engaged Interest Research Bureau (K) Ltd to audit and/or verify the accuracy of the interest charged on the facilities. In addition, the respondent notified the appellant of the said engagement vide a letter dated 11th June, 2003 and requested the appellant to accord Interest Research Bureau (K) Ltd the necessary cooperation. Thereafter, correspondence relating to recalculation of interest were exchanged between Interest Research Bureau (K) Ltd and the appellant. Ultimately, according to Interest Research Bureau (K) Ltd’s computation, the appellant had overcharged interest on the facilities granted to the respondent. In turn, the appellant through a letter dated 30th October, 2003 disputed the said computation which it termed as inaccurate. What was more, the appellant denied any liability on its part, and that is what escalated the dispute to a long litigation before the two superior courts below and the present appeal.","Having considered the pleadings, the impugned judgment, and the parties’ respective submissions, it is apposite to first address issues concerning this Court’s jurisdiction to entertain the appeal and cross appeal herein.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/31/eng@2024-06-28
Reference E001 of 2022,Attorney General (On Behalf of the National Government) v Karua (Reference E001 of 2022) [2024] KESC 21 (KLR) (31 May 2024) (Advisory Opinion),Advisory Opinion,Supreme court,Supreme court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",31 May 2024,2024.0,Nairobi,Civil,Attorney General (On Behalf of the National Government) v Karua,[2024] KESC 21 (KLR),,"A.introduction
1.
The Attorney General (AG), on behalf of the national government, by a reference dated December 9, 2022, has sought this court’s advisory opinion pursuant to article 163(6) of the Constitution, section 13 of the Supreme Court Act, 2011, and rule 50 of the Supreme Court Rules, 2020. The reference was supported by an affidavit sworn by Kennedy Ogeto, the then Solicitor General of the Republic of Kenya, on December 9, 2023.
2.
The reference seeks the court’s advisory opinion on the following questions:
i.
Whether the decisions by the Supreme Court on Kenyan law may be subject to a merit review by the East African Court of Justice and what would be the legal consequences upon the Government of Kenya and the sovereignty of the people of Kenya, of orders of the East African Court of Justice premised on a differing interpretation of the Kenyan Law from that held by the Supreme Court; and
ii.
The legal effect of a finding by the East African Court of Justice that a national court, including the Supreme Court, did not adhere to legal principles, including natural justice and the rule of law, in a case heard and determined by a national court including the Supreme Court.
3.
Hon Martha Karua, SC (Hon Karua), who was enjoined by the court suo motu as an intervener, raised a preliminary objection dated October 6, 2023 on the grounds that; the court lacks jurisdiction to hear and determine the Reference because it does not concern county government under article 163 (6) of the Constitution; that the issues raised in the reference are either concluded or pending litigation before the East African Court of Justice (EACJ) and are thus either resolved or unripe for the delivery of an advisory opinion; the reference invites the court to usurp a role reserved by the Treaty for the Establishment of the East African Community (EAC Treaty) to the East African Court of Justice contrary to the principle of separation of powers; and that, article 27 of the Vienna Convention forbids a state party, like Kenya, from invoking provisions of its internal law as justification for failure to perform its obligations under a treaty to which it is a signatory.
B. Background
4.
The genesis of the reference can be traced to the gubernatorial elections for Kirinyaga County held on August 8, 2017 where Hon Karua was a contestant. Aggrieved by the declared election result, Hon Karua filed Election Petition No 2 of 2017 at Kerugoya High Court on September 5, 2017. The High Court however struck out the petition on November 15, 2017 resulting in an appeal to the Court of Appeal. Vide a judgment delivered on March 2, 2018, the appellate court set aside the High Court judgment and remitted the case back to the High Court to be heard on merits.
5.
The High Court heard the petition on merits as directed and proceeded to dismiss it. Hon Karua appealed to the Court of Appeal at Nyeri in Election Appeal No 12 of 2018. A cross-appeal was filed in the matter by Hon Anne Waiguru, the winner of the electoral contest. The Court of Appeal found no merit in the appeal including the claim of violation of Hon Karua’s right to fair trial by the High Court but, of importance, is that it upheld the cross-appeal, and set aside the part of the High Court judgment which was to the effect that the High Court had jurisdiction to hear and determine the election petition outside the statutorily prescribed time limits. On appeal to the Supreme Court, the court agreed with the Court of Appeal and held that the determination at the High Court was a nullity having been undertaken outside the statutorily prescribed limits. It declined to consider any other issue on account of want of jurisdiction and dismissed the appeal.
6.
Having exhausted the domestic remedies available in Kenya, Hon Karua filed at the EACJ, Reference No 20 of 2019; Hon. Martha Wangari Karua vs The Attorney General of the Republic of Kenya, faulting the decision of the Supreme Court. EACJ’s First Instance Division agreed with her and found that the Supreme Court’s interpretation of the Constitution was wrong and that the Republic of Kenya had violated Hon. Karua’s right to access to justice through its judicial organ’s (the Supreme Court’s) acts and/or omissions and further held that Kenya violated its commitment to the fundamental and operational principles of the EAC Treaty, specifically the principle of the rule of law guaranteed under articles 6(d) and 7(2) of the Treaty by not properly interpreting and giving effect to the Constitution of Kenya. It consequently awarded Hon. Karua compensation in general damages of USD 25,000 with simple interest of 6% per annum from the date of judgment until payment in full, including costs. Aggrieved, the AG appealed to the appellate division of the EACJ. The appellate dvision dismissed the appeal and upheld the decision of the First Instance Division of that court.
7.
Subsequently, two similar cases have been instituted at the EACJ by Hon Karua and one, Male H Mabirizi, arising from the Presidential Election held in Kenya on August 9, 2022 but unrelated to the Kirinyaga gubernatorial dispute aforesaid. The two references were however filed following the precedent set by the latter decision. The AG in that context challenges the jurisdiction of the EACJ to review the merits of decisions rendered by apex courts of Partner States. That if this trend continues, the AG is apprehensive that the purported exercise of an appellate jurisdiction by the EACJ over decisions by national courts may pose a conflict with Kenya’s commitment to the rule of law by creating an absurd situation where differing holdings on similar questions based on the same facts are made by national courts on one hand and the EACJ on other hand thereby exposing the Government and the people of Kenya to a legal dilemma on whether it should comply with contradictory yet binding decisions from the two courts.","i. Whether this Court has jurisdiction to render the advisory opinion
28.
The crux of Hon Karua’s preliminary objection was that this court does not have jurisdiction to render an advisory opinion because none of the questions raised in the Reference concern a county government. The other limb of her objection is that all the issues framed for our advisory opinion fall squarely within the ambit of the EACJ and no input from this court is required to address them.
29.
In that regard, we note that this court’s jurisdiction to issue an advisory opinion is anchored in article 163(6) of the Constitution which stipulates that:
“
The Supreme Court may issue an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government”. [Emphasis added]
30.
This court has in several decisions interrogated the question of its jurisdiction under article 163(6) of the Constitution. It set the guidelines for the exercise of its advisory-opinion jurisdiction in Re IIEC (supra) as follows:
“
… we are in a position to set out certain broad guidelines for the exercise of the Supreme Court’s Advisory-Opinion jurisdiction.
i.
For a reference to qualify for the Supreme Court’s Advisory- Opinion discretion, it must fall within the four corners of article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government”, will be determined by the court on a case-by-case basis.
ii.
The only parties that can make a request for an advisory opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the court, either as an intervener (interested party) or as amicus curiae.
iii.
The court will be hesitant to exercise its discretion to render an advisory opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower court. However, where the court proceedings in question have been instituted after a request has been made to this court for an advisory opinion, the court may if satisfied that it is in the public interest to do so, proceed and render an advisory opinion.
iv.
Where a reference has been made to the court the subject matter of which is also pending in a lower court, the court may nonetheless render an advisory opinion if the applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an advisory opinion. In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through an adversarial court process…
The foregoing guidelines coincide with our conviction that the plain terms of the Constitution should be read in the broader context of its spirit and philosophy; and on that basis, applications seeking advisory opinion shall be resolved as necessitated by the merits of each case. in view of the practical and legal constraints attendant on advisory opinions, this court will, in principle, exercise that jurisdiction with appropriate restraint.” [Emphasis added]
31.
Similarly, in Matter of the National Gender and Equality Commission Reference No 1 of 2013 [2014] eKLR, we observed as follows:
“
However, there are certain key considerations in applying these essentials. The starting point will always be that the party must have locus standi. The court will always consider whether the party seeking to move it, falls within the categories of parties decreed by the Constitution. The court will then proceed to consider the subject-matter: whether it is one involving County Government. Once it rules in the affirmative, the other considerations come into play.” [Emphasis added]
32.
Flowing from the above, does the reference herein meet the above criteria to enable the court to exercise its advisory opinion jurisdiction? We begin by noting that it is not in dispute that the AG has the locus standi to request an advisory opinion by dint of the provisions of article 156 of the Constitution that creates his office and the powers bestowed to that office. However, Hon Karua contests the court’s jurisdiction to render an advisory opinion in the matter on the ground that it does not concern a county government. From the record and the affidavit of Kennedy Ogeto, filed in support of the Reference, the genesis of this matter can be traced to the gubernatorial election in Kirinyaga County where Hon. Karua challenged the result that was declared against her. Even if the court were to look at the matter through the narrow prism of the dispute that gave rise to the advisory opinion, as it will become more apparent in the analysis here below, it has a bearing on the county government of Kirinyaga.
33.
In the Matter of the Speaker of the Senate & another SC Reference No 2 of 2013 [2013] eKLR this court observed thus:
“
It emerges that a matter qualifies to be regarded as one of county government only where: that is the case in the terms of the Constitution; it is the case in the terms of statute law; it is the case in the perception of the court, in view of the function involved or the relation created as between the national government and its processes, on the one hand, and the county governments and their operations, on the other.” [Our Emphasis]
34.
Article 180 of the Constitution contemplates the election of a county governor who is to be directly elected by the voters in the county. In interrogating whether the matter is one concerning a county government, this court is therefore invited to look into the obtaining facts alongside the provisions of the Constitution and statute law or perception of the court. Our reading of article 180 of the Constitution and the decisions of the court cited above directly point to the fact that, the matter involves a county government.
35.
We say so because, Hon Karua participated in the gubernatorial elections by dint of article 180 of the Constitution which expressly provides for election of a county governor. Having lost the election, she approached the High Court challenging the election result as declared. The matter rose through the appropriate appellate mechanism to reach this court where we pronounced ourselves accordingly. It is therefore this court’s judgment, arising out of that gubernatorial election, that Hon Karua sought to challenge, and successfully so, at the EACJ in Reference No 20 of 2019; Hon. Martha Wangari Karua v Attorney General of the Republic of Kenya, which forms the substance of the reference herein. It follows that the real substratum of the dispute remains the gubernatorial contest that was concluded at this court and was then reopened at the EACJ albeit under that court’s mandate and so, the real issue before us is whether the fact that the matter ended up at EACJ removes the county element from it.
36.
In that regard, we have perused the judgments of both the first instance and appellate divisions of the EACJ and note that both comprehensively acknowledged that the genesis of the matter before them was the gubernatorial dispute-see Paras 37 and 38 of the judgment of the first instance division and Paras 5-17 of the judgment of the appellate division. The judgment of this court on the same subject was also the focus of both EACJ judgments. On the other hand, the present Reference is also questioning the EACJ’s mandate over a dispute arising from the Kirinyaga gubernatorial election and any other matter concluded by this court but which has or may then be subjected to a merit review by the EACJ. To argue, as Hon Karua has done, that the said Kirinyaga gubernatorial election dispute is not an issue before us in this Reference is not borne out by the facts in both the EACJ Reference and the one now before us. Her pleadings before the EACJ confirm that fact as well.
37.
As a consequence, it is our considered opinion that the reference was triggered by the disputed gubernatorial election results of Kirinyaga County following the 2017 general election and the main question before us is whether such a dispute, once determined finally by this court, can be subjected to a merit review by the EACJ. In answering that question, we shall not refer to the merit or otherwise of the EACJ decisions nor to the execution thereof but shall limit ourselves to the wider question of merit review triggered by the said dispute. The question before us remains: should all disputes arising from an election to a position in a county government trigger a merit review at the EACJ once determined by the apex court? The other issues raised by the AG are collateral but related in a wider context to that core question and which concerns a county government. It must be answered by this court.
38.
In addition to the above, this court has also been categorical that it will not exercise its discretion to render an advisory opinion where the matter in respect of which the reference has been sought is subject to proceedings in a lower court. We note that the questions raised for our determination by the AG have not been subjected to any litigation or are pending determination in any lower court within Kenya. The pending matters before the EACJ are not of concern to us even if arising from our final decisions. Furthermore, this court exercises its mandate as provided for under the Constitution while EACJ exercises its mandate under the EAC Treaty. The EACJ is not part of the hierarchy of courts in Kenya and therefore, the court cannot fail to issue an advisory opinion regarding matters pending or concluded at the EACJ, because of the difference in jurisdiction and authority. Hon Karua’s argument that this court should not proffer an advisory opinion on matters pending litigation or concluded litigation at the EACJ must therefore fail.
39.
We also note that the issues raised by the AG in the reference constitute matters of great public importance as they concern the question whether the decisions of this court can be subject to merit review by a regional or international court given the finality of the decisions of the court as Kenya’s apex court under the Constitution. The matters in question as demonstrated in the foregoing paragraphs cannot also be settled through ordinary litigation, and therefore, an advisory opinion represents an avenue for clarification of the issues raised by the AG.
40.
Given the above findings, it is our considered opinion that the reference meets the guidelines for the court to exercise its advisory opinion jurisdiction, and the preliminary objection by Hon Karua is overruled.
ii. Whether the advisory opinion is premature for want of the Attorney General’s prior advice
41.
It was Hon Karua’s contention that the application for an advisory opinion was premature without the AG’s prior legal opinion and that there was no evidence that the national government sought or the AG did issue a legal opinion on the issue before invoking this court’s advisory jurisdiction.
42.
Article 156(4)(a) of the Constitution provides that the AG is the principal legal advisor of the Government. This court affirmed this position in Re IIEC, supra where we stated:
“…By article 156(4) … of the Constitution, the Attorney General is designated the principal [legal] advisor of the Government …. It can be said that the Attorney-General bears the mantle of the “chief lawperson” of Government in its diverse dimensions. The various departments [and levels] of the Government have the liberty to seek the Attorney-General’s opinion on any legal question of relevance to their day-to-day operations.” [Emphasis added]
43.
Furthermore, article 156(4)(b) of the Constitution states that the AG shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings.
44.
Additionally, rule 53 of the Supreme Court Rules, 2020 provides as follows:
(1)
“The court may, after giving the parties an opportunity to be heard, reject a reference in whole or in part, if –
…
(c)
the matter in respect of which the reference is made can, in the opinion of the court, be resolved by the advice of the Attorney–General, and such advice has not been sought”. [Emphasis added]
45.
Taking the above provisions into consideration, it is our considered view that the AG filed this reference pursuant to the authority granted to his office under article 156(4)(a) and (b) of the Constitution. In line with rule 53 of the Supreme Court, Rules 2020, and our reasoning in Re IIEC (supra) it is absurd to require the office of the AG to seek a legal opinion from itself. If it had the capacity to resolve the matter on its own then it would have advised the national government expressly and not invoked this court’s advisory opinion jurisdiction.
46.
Furthermore, in the Matter of Speaker, County Assembly of Siaya County, Reference No 4 of 2017 [2020] eKLR and Matter of the National Gender and Equality Commission, Reference No 1 of 2013; [2014] eKLR, we stated that it is not a matter of law to seek the AG’s opinion as follows:
“Though there is no mandatory requirement to first seek the Attorney-General’s opinion, this court has held that, as a matter of good practice, such opinion should be sought…
Consequently, as a matter of due process, we would restate that the applicant, same as other government institutions and agents, should adopt the practice of resorting to the office of the Attorney-General first.” [Our Emphasis]
47.
Also, in the Matter of the County Government of Nairobi vs Attorney General, (Reference 1 (E001) of 2021) [2023] KESC 65 (KLR) we held that:
“
(35)
Flowing from the above, we see no reason to derogate from this court’s rules and set procedure, as well as settled legal standards. We, therefore, restate that, as a matter of good practice and anchored on rule 53 aforesaid, such opinion should be sought. We further reaffirm that in line with rule 53(1)(c), we may, after allowing the parties a chance to be heard, reject a reference in whole or in part, if the matter in respect of which the reference is made, can in our opinion be resolved by the advice of the Attorney General if such advice has not been sought.” [Our Emphasis]
48.
Based on the foregoing, we reaffirm that as a matter of good practice, the AG’s opinion should be sought before a dissatisfied party can seek an advisory opinion from this court. However, in this particular case, we reiterate that the office of the AG cannot be expected to seek an opinion from itself. In addition, as the principal government legal advisor, if the AG had the capacity, he would have advised the government without seeking an advisory opinion from the court. Consequently, we find that the reference is not premature for lack of the AG’s report on what advice it should have given the national government.
49.
Having found that the questions raised in the reference meet the guidelines for this court to render an advisory opinion in line with the guidelines set in Re IIEC (supra) and that the Reference is not premature for failure to seek the AG’s report, we hereby find that this court should exercise its jurisdiction and render an advisory opinion as requested. Hon Karua’s preliminary objection on that issue is similarly overruled.
iii. Whether the decisions of the Supreme Court on the interpretation of Kenyan law can be subject to a merit review by the East African Court of Justice and what is the effect of such a decision?
50.
The AG maintained that, while article 33(2) of the EAC Treaty stipulates that the decisions of EACJ in the application of the Treaty will take precedence over decisions of national courts on similar matters, there is no explicit provision within the Treaty granting EACJ jurisdiction to interpret the substance of national laws of partner states so as to reach divergent positions of law from what has been declared by the apex courts of partner states. He further contended that the EACJ, in a number of decisions, has interpreted its jurisdiction to include merit review of the interpretation of partner states’ apex courts on the substance of their Constitutions.
51.
The above issue portends no difficulty for us at all and in that regard, we note that, under article 2(1) of the Constitution, the Constitution is the supreme law of Kenya and that under article 163(7), Supreme Court decisions are binding on all courts in Kenya and there is no dispute that such decisions are final and are not subject to further appeal. However, in exercise of its mandate under the Constitution, the court, like other organs of the State, is alive to the supremacy of the Constitution, and at all times exercises this mandate in accordance with among others, the principle of the rule of law which is a fundamental principle under the said Constitution.
52.
We also note that, article 2(5) of the Constitution provides that the general rules of international law shall form part of the law of Kenya while article 2(6) of the Constitution stipulates that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution. The EAC Treaty therefore is part of the Kenyan laws that must be subservient to the Constitution and if there is any conflict regarding the hierarchy of the Kenyan courts and the courts created by the Treaty, the provisions of the Constitution take precedence over those of the Treaty.
53.
In addressing that issue, this court in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR) stated as follows:
“
Articles 2(5) and (6) is inward looking in that, it requires Kenyan Courts of law, to apply international law (both customary and treaty law) in resolving disputes before them, as long as the same are relevant, and not in conflict with, the Constitution, local statutes, or a final judicial pronouncement”. [Emphasis added]
54.
Therefore, based on the provisions of article 2(6) and the reasoning adopted in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (supra) we emphasize that international law, including treaty law, applies in Kenya and by extension to the organs of the state as long as the same are not in conflict with the Constitution, local statutes, and final judicial pronouncements. This connotes that the Constitution embodies the primacy of domestic laws and the subsidiarity of international laws. The principle of subsidiarity respects national sovereignty by recognizing that each state retains the ultimate authority over matters occurring within its territory, because in the case of Kenya, article 1 of the Constitution declares that “All sovereign power belongs to the people of Kenya” power to be exercised only in accordance with the Constitution.
55.
This was also the position adopted by the European Court of Human Rights in the case of Handyside v United Kingdom, Application No. 5493/72 where, in the context of human rights, it held as follows:
“
The court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (judgment of 23 July 1968 on the merits of the ""Belgian Linguistic"" case, Series A no 6, p 35, para 10 in fine)…
Consequently, article 10 para 2 (art 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (""prescribed by law"") and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force.” [Emphasis added]
56.
In appreciating the above position, we reiterate that the Constitution of Kenya is the supreme law of the land. International law reigns supreme on the international sphere. The same is to be said of municipal law within the domestic sphere. While we are cognizant of the time hallowed international law doctrine to the effect that a state party shall not invoke its domestic law to abdicate from its international obligations, we see nothing in the Treaty establishing the East African Community, that confers upon the EACJ, appellate jurisdiction over the member state apex courts’ judgments. A state’s electoral laws and procedures fall squarely within the municipal competency of its courts. It is juridically inconceivable that a regional tribunal, established by a regional Treaty, whose objectives are clearly decreed as in the EAC Treaty, can arrogate to itself an appellate jurisdiction, in matters involving the interpretation of a member state’s Constitution by its own courts. Judicial supra-nationality in a regional or international community is a precept that must be categorically provided in a Treaty to which states have signified their consent.
57.
Moreover, the Constitution positions the Supreme Court as the apex court and a court of final judicial authority under article 163 (7). The role and standing of this court as a court of final judicial authority is further elaborated under section 3 of the Supreme Court Act, 2011 which provides that:
“
The object of this Act is to make further provision with respect to the operation of the Supreme Court as a court of final judicial authority to, among other things –
a.
assert the supremacy of the Constitution and the sovereignty of the people of Kenya;
b.
provide authoritative and impartial interpretation of the Constitution.” [Our Emphasis]
58.
This Court in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others, SC Petition No 6 of 2015 [2017] eKLR similarly asserted:
“The Supreme Court is the final court in the land. But most importantly, it is a final Court of Justice.” [Emphasis added]
59.
Accordingly, we restate the binding and firm principle that, the Constitution places the Supreme Court as the apex court and a court of final judicial authority with the mandate to assert the supremacy of the Constitution and the sovereignty of the people of Kenya.
60.
Further, as alluded to above, the Constitution also envisions a situation where international law (treaty and customary law) to which Kenya is a party is subject to the Constitution within the domestic sphere. Therefore, if any provision of a treaty conflicts with the Constitution, the provision of the Constitution prevails because the Constitution is the supreme law of the Republic of Kenya and binds all persons and all State organs and;
“
Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid”. [Our Emphasis]
61.
In that context and relevant to this Reference, Kenya ratified the EAC Treaty on November 30, 1999 and the Treaty came into force on July 7, 2000. Therefore, by dint of article 2(6), it became part of the laws of Kenya subject to the Constitution.
62.
The EAC Treaty establishes its judicial enforcement mechanism, the EACJ, at article 9. The role of EACJ is elaborated in article 23 of the EAC Treaty as the judicial organ to ensure the adherence to law in the interpretation and application of and compliance with the Treaty.
63.
The jurisdiction of EACJ is further elucidated at article 27 of the Treaty. In particular, article 27(1) provides that:
“
The court shall initially have jurisdiction over the interpretation and application of this Treaty.
Provided that the court’s jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of partner states”.
64.
As evidenced by the above provision, EACJ is specifically mandated to interpret and apply the provisions of the EAC Treaty and is expressly prohibited from interpreting national laws of partners states outside the purview of the Treaty because national laws are beyond its jurisdiction. This is because national courts are mandated by national laws to adjudicate claims according to national law, culture, and customs. National courts are in the same vein not vested with jurisdiction to deal with the interpretation or application of the EAC Treaty.
65.
The question whether international courts should embrace a non-intrusive standard of review has been the subject of judicial pronouncements in other realms. Grappling with this question, the European Court of Human Rights developed the margin of appreciation doctrine to aid it in determining the standard of review in disputes against States. The margin of appreciation means that a member state or its organs are permitted a degree of discretion, subject to the court’s supervision when it takes legislative, administrative, or judicial action in the area of a European Convention of Human Rights.
66.
The margin of appreciation doctrine also permits that court to take into account the fact that, the Convention might be interpreted differently in member states given the differing legal and cultural traditions. It is also premised on the idea that so long as a State’s action does not violate a certain minimum threshold of protection, the court will respect the State’s determination that the action complies with the European Convention on Human Rights even if the court might have come to a different conclusion itself, faced with the issue de novo.
67.
The margin of appreciation doctrine is furthermore predicated on the notion that the European Convention on Human Rights’ protection is secondary or subsidiary to the protection provided by the contracting State. In appreciating the margin of appreciation granted to domestic courts in interpreting the domestic laws and vis-a-vis the Convention, the European Court of Human Rights in Goodwin v UK (2002) 35 EHRR 447 therefore observed as follows:
“
In accordance with the principle of subsidiarity, it is indeed primarily for the Contracting States to decide on the measures necessary to secure Convention rights within their jurisdiction and, in resolving within their domestic legal systems the practical problems created by the legal recognition of post-operative gender status, the Contracting States must enjoy a wide margin of appreciation.” [Emphasis added]
68.
The Inter-American Court of Human Rights has also exercised restraint and deference on the issue of the standard of review of domestic court’s decisions. In the case of Genie Lacayo v Nicaragua, 1997 Inter-Am Ct HR (ser C) No 30, 94 (Jan 29, 1997) for example, it expressed itself as follows:
“…in accordance with general international law, the Inter- American Court does not act as an appellate court or a court for judicial review of rulings handed down by the domestic courts. All it is empowered to do in this case is call attention to the procedural violations of the rights enshrined in the Convention which have injured Mr Raymond GeniePeñalba, the interested party in the matter; however, it lacks jurisdiction to remedy those violations in the domestic arena, a task, as has been pointed out before, that falls to the Supreme Court of Justice of Nicaragua when it disposes of the application for judicial review which is yet to be resolved.” [Emphasis added]
69.
Similarly, the ECOWAS court in Moussa Leo Keita v Republic of Mali ECW/CCJ/APP/03/07, held that:
“
Unlike other international courts of justice, such as the European Court of Human Rights, ECOWAS, does not possess, among others, the competence to revise decisions made by the domestic courts of Member States; it is neither a court of appeal nor a court of cassation (cour de cassation) vis-a-vis the national courts”. [Our Emphasis]
70.
As regards the right to a fair hearing resulting from an election dispute, the ECOWAS court in Jerry Ugokwe v Nigeria, ECW/CCJ/JUD/03/05 held as follows:
“Appealing against the decision of the National Court of Member States does not form part of the powers of the Court; the distinctive feature of the Community legal order of ECOWAS is that it sets forth a judicial monism of first and last resort in Community law. And, if the obligation to implement the decision of the Community Court of Justice lies with the national courts of Member States, the kind of relationship existing between the Community Court and these national courts of Member States are not of a vertical nature between the Community and the Member States but demands an integrated Community legal order. The ECOWAS Court of Justice is not a Court of Appeal or a Court of Cassation.” [Our Emphasis]
71.
This position was also adopted by EACJ itself in several of its decisions. In Dr Mpozayo Christophe v The Attorney General of the Republic of Rwanda Reference 10 of 2014 for example, it cited with approval the case of Ida Robinson Smith Putnam (USA) v United Mexican States,1927, UNRIAA, vol IV, p, 151 at 153 where it was held as follows:
“
The Commission, following well-established international precedents, has already asserted the respect that is due to the decisions of the highest courts of a civilized country. A question which has been passed on in courts of different jurisdiction by the local judges, subject to protective proceedings, must be presumed to have been fairly determined.”
72.
Furthermore, in Honourable Sitenda Sebalu vs The Secretary General of the EAC & 3 Others Reference No 1 of 2010 the EACJ itself expressed as follows:
“
In the circumstances, it is this court’s finding that article 27 of the Treaty does not confer appellate jurisdiction on the EACJ over the decision of the Supreme Court of Uganda in Election Petition appeal No 6 of 2009, Hon Sitaenda Sebalu v Hon Sam K Njuba & Electoral Commission of Uganda.”
73.
The EACJ as a regional court is no different from the European Court of Justice, the Inter-American Court of Human Rights, the European Court of Human Rights and the ECOWAS Court and the elucidation of the law as restated above is most persuasive to us as we address the matter at hand. And as evidenced above, regional courts across the world have exercised restraint and deference giving partner states a wide margin of appreciation when reviewing decisions of the latter more so of apex courts like this one. The jurisprudence emerging from the above decisions is also that, the hierarchical relationship between regional/international courts and national courts is not of a vertical nature. This means that EACJ cannot exercise appellate jurisdiction over decisions of national courts of member States, a fact acknowledged by the EACJ in Honourable Sitenda Sebalu vs The Secretary General of the EAC & 3 Others (supra). This was also the position of this Court, in Peter Odiwuor Ngoge t/a OP Ngoge & Associates vs Josephine Akoth Onyango & 5 Others, SC Petition No 18 of 2015 where we observed that:
“
…the jurisdiction of the East African Court of Justice is found in article 27 of the Treaty for the Establishment of the East Africa Community. That jurisdiction does not confer on that court any appellate mandate as regards decisions of this court”. [Our Emphasis]
74.
Furthermore, it is obvious to us that, what international/regional courts are empowered to do, is to conduct procedural reviews on decisions of the national courts and call attention to violations only but in line with the mandate conferred by their parent Treaty or Convention and not national laws. Therefore, in accordance with the EAC Treaty, EACJ’s mandate is the interpretation and application of the EAC Treaty only and, we hold and find that the EACJ does not have appellate jurisdiction or merit review jurisdiction over decisions of the Supreme Court of Kenya in matters concerning the interpretation and application of the Constitution of Kenya or any other matter arising from the latter’s decisions. the Constitution envisages the Supreme Court as the final judicial authority in asserting the supremacy of the Constitution and the sovereignty of the people of Kenya would be undermined if the converse situation were to apply. It should however be noted that mere disagreement with the interpretation that domestic courts have made of pertinent legal provisions does not constitute violations of the EAC Treaty. Interpretation of the Constitution or national laws, and weighing of evidence is the mandate of domestic courts, which cannot be replaced by the EACJ in that regard.
75.
In addition, it should be noted that regional and international courts such as the EACJ are, by Treaty or Convention, granted the mandate to examine how State organs satisfy regional or international obligations of the State to interpret and apply national laws save in the manner expressed above. Such courts should only act as agencies and tools for strengthening of local conditions, including democracy and the rule of law but not as substitutes of State organs.
76.
On the effect of a decision amounting to a merit review by the EACJ of a decision by a final national court such as this one, such a decision would be of no legal consequence. EAC Treaty has acknowledged this position in article 9(4) which provides that the organs of the EAC shall act only and perform such functions as are conferred on them by or under the provisions of the EAC Treaty.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/21/eng@2024-05-31
Application E003 of 2024,Jomo Kenyatta University of Agriculture & Technology v Kwanza Estates Limited (Application E003 of 2024) [2024] KESC 20 (KLR) (31 May 2024) (Ruling),Ruling,Supreme court,Supreme court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, W Ouko",31 May 2024,2024.0,Nairobi,Civil,Jomo Kenyatta University of Agriculture & Technology v Kwanza Estates Limited,[2024] KESC 20 (KLR),,"Upon reading the notice of motion by the Applicant dated 1st February 2024 and filed on 5th February 2024 pursuant to Articles 25(c), 50(1) and 163(5) of the Constitution, Sections 3(e), 3A, 15A, 23A and 23(2A)(b) of the Supreme Court Act and Rule 15(2) of the Supreme Court Rules 2020 for orders that this Court be pleased to; grant leave for the extension of time to the applicant to apply for review of the Ruling by the Court of Appeal in Civil Application No.E053 of 2023; grant the applicant leave to file and serve the draft Originating Motion; and grant a stay of proceedings in SC Petition No. E001 of 2024 (the appeal herein) pending the hearing and determination of the instant application and the Originating Motion; and
2.
Upon reading the applicant’s supporting affidavit sworn on 1st February 2024 by Maryanne Mwihaki Wanyoike, the Ag. Chief Legal Officer of the applicant; and the applicant’s submissions dated 16th February 2024 to the effect that: the respondent filed an Originating Motion dated 30th June 2023 at the Court of Appeal seeking that its appeal be certified as raising matters of general public importance and for grant of leave to appeal to the Supreme Court; the applicant was never served with any hearing notice; on 9th October 2023, the hearing of the Motion proceeded ex parte; subsequently, on 15th December 2023, the Court of Appeal delivered its ruling allowing the Motion thereby granting the respondent leave to appeal to the Supreme Court; the applicant only became aware of the ruling when it came across it on the court e-filing portal; consequently, the applicant filed an application dated 21st December 2023 in the Court of Appeal seeking a review of the impugned ruling on grounds that the requisite hearing notice informing the applicant of the hearing had been sent to the wrong email address by the Court of Appeal registry at Nakuru, an admitted inadvertent error by the court; while the applicant was waiting for the Court of Appeal to review its decision, on 15th January 2024, the respondent filed SC Petition No. E001 of 2024 before this Court; and
3.
Further, the applicant advances as the reason for the delay the fact that it opted to exhaust all the available remedies before the Court of Appeal by filing the application for review, so as not to abuse the court process; that the applicant has brought this application without undue delay after it realized that the respondent had filed its appeal before this Court; that as a result, the appeal before this Court automatically renders the application for review before the Court of Appeal idle as it has been overtaken by events; that there will be no prejudice suffered by the respondent if an extension of time is granted and if the applicant is allowed to apply for a review of the impugned ruling as the respondent’s appeal is already on record; that conversely, the applicant will suffer prejudice as it would be condemned unheard since it was precluded from presenting and addressing pivotal issues in the Motion for certification; that further, if the proceedings in SC Petition No. E001 of 2024 before this Court are not stayed, this application will be rendered nugatory; finally, that the applicant has satisfied the principles for the grant of an order for extension of time as enunciated in the case of Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others, SC Application No. 16 of 2014; [2014] eKLR; and
4.
Upon considering the respondent’s replying affidavit sworn by Geoffrey Makana Asanyo, the respondent's Managing Director, on 27th February 2024 and its submissions dated 4th March 2024 to the effect that: upon the respondent filing its Motion before the Court of Appeal for certification, the court issued directions, receipt of which the applicant acknowledged and pursuant thereto filed its replying affidavit which it served upon the respondent on 18th July 2023; thereafter the applicant failed to file its written submissions in respect of the Motion; subsequently on 23rd August 2023, the court served a hearing notice for the Motion on 9th October 2023; on the said hearing date, after being satisfied that the applicant was properly served with the hearing notice, the court proceeded to hear the Motion in the absence of the applicant; being cognizant of the applicant’s replying affidavit on record, the court rendered its ruling on 15th December 2023 allowing the Motion having duly considered the response; and
5.
Noting, the respondent’s argument that if indeed the applicant was not served with a hearing notice as alleged, its recourse would have been to apply for the re-hearing of the Motion in terms of Rule 58(3) of the Court of Appeal Rules by satisfying the court that there were sufficient reasons for his absence when the application was called out for hearing; that the applicant ought to have made its application for review within 14 days of the delivery of the ruling as provided for by Rule 33(2) of the Supreme Court Rules; that the applicant has not explained why it took 19 days to file physical copies of the application contrary to Rule 12 of the Supreme Court Rules; and that the reasons for delay are not satisfactory, hence this application has been brought after unreasonable delay; and
6.
Upon further consideration of the respondent’s submissions that it will be prejudicial to it if this application is granted, considering that the Court of Appeal set aside the award of Kshs. 71,965, 138.70 being rent from 1st February 2021 to 30th April 2022; that an order of stay is not feasible in the circumstances of the case, since the appeal has already been filed and the applicant filed its response; and that the issues which the applicant intends to raise in its intended Originating Motion have been raised in that response; and that it should follow that the prudent course should be to proceed with the hearing of the appeal where all the issues can conclusively be determined to save on judicial time; and
7.
Upon reading the applicant’s further affidavit sworn on 6th March 2024 by Richard Wokabi Kariuki, its Chief Legal Officer, in response to the respondent’s replying affidavit where it is deposed that the applicant was not invited and/or informed of the case management conference and since the applicant was subsequently not aware of the hearing, it did not file its written submissions; and","8.
Having considered the application, affidavits and rival arguments by both parties we now therefore opine as follows:
i.
This Court by the provisions of Rule 15(5) of the Supreme Court Rules, 2020, has jurisdiction to extend the time limited by the Rules or by an order of this Court.
ii.
The guiding principles for the grant of this relief are enunciated in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others, SC Application No. 16 of 2014; [2014] eKLR as follows: that extension of time is an equitable remedy available to a deserving party at the court’s discretion on a case to case basis; that a party seeking extension of time has the burden of laying a basis to the satisfaction of the court; that where there is a reason for delay, it must be explained to the satisfaction of the court; that there should be no prejudice suffered by the respondent if the extension is granted; that the application must be brought without undue delay; and that in certain instances, public interest should be a consideration for extending time.
iii.
Before applying these principles to the instant case, we note that the applicant’s application for review dated 21st December 2023 is still pending hearing and determination in the Court of Appeal.
iv.
Contemporaneously, the applicant went ahead and filed the instant application before this Court seeking extension of time and leave to file an Originating Motion for the review of the very same impugned ruling. With this in mind, can the applicant’s submission that it filed the application for review in the Court of Appeal so as not to abuse the process of the court, be taken seriously? What it has done indeed amounts to an abuse of the judicial process; seeking similar reliefs, namely the review of the ruling on certification, simultaneously before two different levels of court. The applicant is trying to have its cake and eat it too. Although the applicant has deposed in the aforesaid further affidavit that it has filed a Notice of Withdrawal dated 26th January 2024, there is no evidence by way of an Order of the Court of Appeal, that the application for review has formally been withdrawn. The result is that, presently there are two applications for review before this Court and the Court of Appeal.
v.
To avoid embarrassment of this Court and the Court of Appeal, good order demands that the application pending before the Court of Appeal is first dispensed with one way or another.
vi.
The procedural missteps above notwithstanding, on the merit too, we are not persuaded that the applicant deserves the relief of extension of time, as the test for the grant enunciated in Nicholas Kiptoo Arap Korir Salat (supra) has not been met. For example, the applicant has not laid a proper basis for the grant of the application; the reason for the delay is not only absurd but also unpersuasive, in addition to the likely prejudice that the respondent may be exposed to if time is extended, in view of the fact that the appeal has been lodged and responded to.
vii.
The applicant’s grievance which it intends to raise in the intended Originating Motion is similar to what it has raised in response to the appeal before this Court, SC Petition No. E001 of 2024.
viii.
For these reasons, we need not address ourselves to the rest of the prayers sought and dismiss this application in its entirety.
ix.
As costs are discretionary and follow the event, the applicant shall bear the costs of this application.
9.
Accordingly, we make the following orders:
i.
The Applicant’s Notice of Motion dated 1st February 2024, be and is hereby dismissed.
ii.
The Applicant shall bear the costs of this application.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/20/eng@2024-05-31
Application E011 of 2023,Kaluma v NGO Coordination Board & 5 others (Application E011 of 2023) [2024] KESC 22 (KLR) (31 May 2024) (Ruling),Ruling,Supreme court,Supreme court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko",31 May 2024,2024.0,Nairobi,Civil,Kaluma v NGO Coordination Board & 5 others,[2024] KESC 22 (KLR),,"Upon perusing the Notice of Motion application dated 10th January 2024 and filed on 15th January 2024, brought under Article 159(2) of the Constitution and Rule 15(2) of the Supreme Court Rules, 2020, the Applicant seeks the following orders:
a.
Spent.
b.
The Court be pleased to extend the time for filing a reference against the taxation decision vide the ruling dated 6th November, 2023, in terms of the draft reference annexed hereto.
c.
The draft reference application be deemed as duly filed upon payment of requisite court fees.
d.
Costs of the application be awarded to the Applicant.
2.
Upon perusing the grounds on the face of the application and the affidavit in support sworn by the Applicant on 10th January 2024 and the submissions dated 10th January 2024; to the effect that the Deputy Registrar assessed costs at KShs.200,000/= and condemned the Applicant to pay the 2nd respondent’s costs; the Applicant was not served with a Ruling Notice; he found out about the ruling when the 2nd Respondent’s counsel texted him demanding the sum of Kshs.500,000/=; the statutory 7 days’ timelines for filing a reference lapsed on 14th November 2023; there was need to extend the time limit to allow the applicant challenge the subject ruling; in support of the application, the applicant relied on the cases of Kenya Railways Corporation & 2 Others vs Okiya Omtatah Okoiti & 2 Others, SC Petition No. 13 of 2020 (as consolidated with Petition No. 18 of 2020); William Olotch vs Pan African Insurance Limited, Civil Application No. 14 of 2020; and Muthuuri & 4 Others v Attorney General & 2 Others, SC Petition (Application) No. 15 (E022) of 2021); and
3.
Noting that the application is unopposed;","Having considered the application, we now opine as follows:
i.
This Court, by the provisions of Rule 15(2) of the Supreme Court Rules, 2020, has the discretion to extend the time limited by the rules or by any of its decisions.
ii.
In addition, this Court laid down the principles for extension of time in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, SC Application No. 16 of 2014; [2014] eKLR. They are:
a.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court.
b.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.
c.
Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis.
d.
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court.
e.
Whether there will be any prejudice suffered by the respondents if the extension is granted.
f.
Whether the application has been brought without undue delay.
g.
Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
(iii)
The Applicant alleges that he was not served with the ruling notice. He alleges that he only became aware of the ruling and the contents thereof when the 2nd respondent’s counsel reached out to him. We have taken the liberty of perusing the record. We note that an email containing the ruling was indeed sent on 6th November 2023 at 1719 hours to xxxx.com through this Court’s email address supremeregistry@court.go.ke . Furthermore, we note that there have been numerous correspondences from the Court through the email address supremeregistry@court.go.ke to the applicant and vice versa. Notably, there was correspondence from the Court on 12th September, 2023 and 6th November, 2023 to the applicant via his email address xxxx.com . There has also been communication through this Court’s email address supremecourtkenya@gmail.com to the applicant’s email address xxxx.com on various dates being 25th March, 2023, 27th March, 2023, 4th April, 2023, 6th September, 2023, 29th September 2023, 23rd October, 2023, 25th January, 2024, 12th February, 2024, 16th February, 2024 and 19th February 2024. Notably, the applicant himself sent an email through his email address xxxx.com to the Court’s email address supremecourtkenya@gmail.com on 25th January 2024 at 1.22 p.m. where he acknowledged receipt of the Court’s directions and undertook to serve the other parties. This email was in response to the Court’s email sent on 24th January 2024 at 11.02 a.m. through supremecourtkenya@gmail.com to the applicant through his email address xxxx.com.
iv.
It is also noteworthy that in the applicant’s notice of address of service dated 9th March 2023, he indicated his email address as xxxx.com. From the record, there is no indication that the email address was subsequently changed.
iv.
There is therefore no doubt in our minds that the email address in question belongs to the applicant. We therefore come to the irresistible conclusion that the applicant was indeed aware and was served with the impugned ruling.
v.
It therefore follows that the applicant has not provided a good reason for not challenging the Deputy Registrar’s ruling within the statutory timelines. Further, the applicant has not met any of the conditions to convince this Court to exercise its discretion in his favour.
5.
In the circumstances, the application is for dismissal. In line with our decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition Application No. 4 of 2012; [2014] eKLR, we make no order as to costs as the application was not challenged by any of the respondents.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/22/eng@2024-05-31
Petition E020 of 2023,Kombe v Karisa & 3 others (Petition E020 of 2023) [2024] KESC 25 (KLR) (31 May 2024) (Judgment),Judgement,Supreme court,Supreme court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",31 May 2024,2024.0,Nairobi,Election Petition,Kombe v Karisa & 3 others,[2024] KESC 25 (KLR),,"A. Introduction
1.
This appeal arises from the judgment of the Court of Appeal upholding the determination of the High Court that the declaration by the 2nd and 3rd respondents of the appellant as the duly elected Member of National Assembly for Magarini Constituency in the general elections of August 9, 2022 was invalid as the election was not conducted in accordance with the Constitution and the law. The appeal presents three main questions for our determination; whether this court is clothed with jurisdiction to entertain the appeal; whether the Court of Appeal, in affirming the decision of the High Court misinterpreted section 83 of the Elections Act; and whether the Court of Appeal misapplied the standard and burden of proof.
2.
In the course of the court’s consideration of these questions, it will be inevitable to examine, to the extent relevant to this appeal, certain operative principles of electoral law. In that regard, it is a constitutional right of every citizen to participate and freely express their will in a free and fair election based on universal suffrage through secret ballot. Free and fair elections ensure that the outcome reflects the genuine preferences of the electorate, only if the elections are transparent, free from violence, intimidation, improper influence, or corruption; and if they are administered in an impartial, neutral, efficient, accurate, and accountable manner. A transparent election allows the citizens to observe and scrutinize every stage of the electoral process, fosters trust in the integrity of the process, and eliminates fraud or manipulation. At the same time, such a process enhances accountability and engenders public trust.
3.
The 2nd respondent and its officials must in every election ensure that the system they adopt is simple, accurate, verifiable, secure, accountable, and transparent; that the votes cast are counted, tabulated and the results announced promptly at each polling station; and that those results are openly and accurately collated and promptly announced by the returning officer.
B. Background
4.
The appellant, the 1st and 4th respondents, were amongst other candidates who contested for the seat of Member of National Assembly, Magarini Constituency, Kilifi County in the general elections held on August 9, 2022, in which by a narrow margin of only 21 votes, the appellant was declared the duly elected Member of the National Assembly for Magarini Constituency with 11,946 votes ahead of his closest contender, the 1st respondent’s 11,925 votes. As would naturally be expected in such circumstances, the 1st respondent petitioned the High Court challenging the outcome and declaration contending that there were grave errors, flaws, fraud, illegalities, and irregularities committed by the 2nd and 3rd respondents; and that the overall effect of these errors was that the exercise failed to secure a free, fair, and credible election and subdued the will of the people of Magarini Constituency.","F. Analysis and Determination
i. Whether this court has jurisdiction to entertain the appeal
54.
The 1st respondent's argument under this ground is that the appeal does not meet the threshold of article 163(4)(a) of the Constitution. Though we heard arguments on the appeal, as a matter of practice, this court before considering the merits of arguments in any appeal before it, must first ascertain if it has been properly moved. This is because, as Nyarangi, JA famously said in his statement in the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, jurisdiction is everything. In Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR, this court added that jurisdiction of a court can only flow from the Constitution and the applicable statutes.
55.
By defining in specific terms the jurisdiction of the Supreme Court in article 163(4), the Constitution itself makes it clear that the court must not treat with levity any action or proceedings brought outside those limits because such an action would amount to an abuse of its process. It is equally important to stress that not every grievance from the decision of the Court of Appeal lies to the Supreme Court. An appeal from the decision of the Court of Appeal must therefore meet the test under article 163(4)(a) and (b) of the Constitution, which has been the subject of numerous pronouncements by the court.
56.
Whether or not the jurisdiction under article 163(4) has been properly invoked will depend on either the nature of the pleadings, the nature of the proceedings or the relief claimed, or the decision of the Court of Appeal being appealed against, or in some instances, all four instances. It follows that a party relying on article 163(4)(a), like in the present case, must demonstrate that the grievance he has presented, concerns the application or interpretation of the Constitution. It is not the mere statement in the pleadings or submissions by a party that the appeal involves constitutional interpretation or application that clothes this court with jurisdiction.
57.
Applying these principles to the instant appeal, we must advert to the nature of the issues from which this appeal has arisen. The record of appeal copiously demonstrates that the petition filed in the High Court by the 1st respondent, who interestingly now claims that there are no constitutional questions for us to consider in this appeal, was headed, inter alia in the matter of: articles 81,86,87 and 88 of the Constitution. These provisions deal, respectively with general principles for the electoral system, voting, settlement of electoral disputes and the role of the 2nd respondent in conducting elections. The 1st respondent specifically petitioned the High Court to find that the 2nd respondent did not conduct the election in question in conformity with the Constitution and the law. He went ahead and enumerated the instances where and how he believed the constitutional violations, irregularities, and illegalities were committed.
58.
We also note that the issues isolated for determination by the learned trial judge of the High Court were, inter alia:
i.
Whether the election of the Member of the National Assembly for Magarini Constituency was conducted in accordance with the Constitution and the law.
ii.
Whether there was non-compliance with the Constitution and the law in the conduct of the elections of Magarini Constituency.
iii.
Whether there were election offences committed as alleged.
iv.
Whether the alleged irregularities affected the results of the election of the Member of the National Assembly for Magarini Constituency
v.
What order as to costs to issue.
59.
The High Court, in declaring the election of the appellant as Magarini Constituency Member of Parliament null and void, was persuaded that the 2nd and 3rd respondents failed to comply with the Constitution and the law in the conduct of the election. It held:
“
The general principle of free and fair election under article 81 is given effect by the prescriptive provisions of article 86 of the Constitution. The principle of substantial compliance must be read into the provisions of section 83 of the Election Act so that for an election to be held not to be according to the Constitution and statutory scheme of elections, there must be wanton and widespread non-compliance with such provisions as registration of voters, recruitment of polling officers, voting process, counting and tallying of the votes, among other important steps in an election process.”
60.
Ultimately, the High Court came to the conclusion that the irregularities committed by the 2nd and 3rd respondents affected the validity of the results and allowed the petition.
61.
On appeal, the appellate court identified two issues as being central to the appeal:
i.
Whether there were irregularities; and if so,
ii.
Whether such irregularities affected the results.
The appellate court, in answering the two questions, was in effect seeking to give meaning to articles 81 and 86 of the Constitution. It did so by stating as follows when dismissing the appeal:
“78.
we agree with the Learned Judge that the elections for Magarini Constituency were not conducted in accordance with the Constitution and the law and that the irregularities affected the result….”
62.
The 1st respondent has urged that the appeal is for striking out for the reason that at no stage in the trial or first appeal did the superior courts below apply or interpret articles 81 and 86 of the Constitution; that they merely made reference to them; and that all the two courts did was to interpret and apply Section 83 of the Elections Act which is not the same thing as interpreting or applying the Constitution. While not every election petition decision is appealable to the Supreme Court under article 163 (4) (a) of the Constitution, what we must decide in this judgment is whether this appeal meets the twin test; whether the appeal raises a question of constitutional interpretation and application and secondly, whether the same has been canvassed in the superior courts progressing through the normal appellate mechanisms before reaching this court by way of an appeal as contemplated under article 163(4)(a)of the Constitution.
63.
We must reiterate what we have said previously in the preceding paragraphs, that at the heart of this dispute has always been the question whether political rights guaranteed by article 38 of the Constitution for the citizens to freely express their will through the ballot were upheld in the election in question; whether the general principles for electoral system espoused in article 81 of the Constitution were adhered to; and whether there was compliance with article 86 of the Constitution that commands the 2nd respondent to ensure a simple, accurate, verifiable, secure, accountable and transparent voting system, accurate and open counting, tabulation and prompt announcement of results. Then there was the question whether the courts below properly interpreted and applied those two provisions of the Constitution as well as section 83 of the Elections Act to the facts presented by parties before them. We entertain no doubt that in their respective analysis and assessment of the evidence on record; in determining the integrity of the election, both superior courts below applied the provisions of articles 81 and 86 of the Constitution.
64.
Our position in this regard is fortified by our own earlier decision in Hassan Ali Joho and Another v. Suleiman Said Shahbal & 2 Others, SC Petition No. 10 of 2013; where we observed that:
“
Applying a principle reading of the Constitution, this court responds to the demands of justice by adjudicating upon issues that tend to bring the interpretation or application of the Constitution into question. However, it is to be affirmed that any appeal admissible within the terms of article 163 (4)
a.
is one founded upon cogent issues of constitutional controversy. The determination that a particular matter bears an issue or issues of constitutional controversy properly falls to the discretion of this court….”
65.
In any case, in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others, SC Application No. 5 of 2014; [2014] eKLR (Munya 1), we held that the provisions of the Election Act and the Regulations thereunder are normative derivatives of the principles embodied in articles 81 and 86. We expressed ourselves as follows:
“[77]
While we agree with Mr. Muthomi, regarding his contention that section 87 of the Elections Act cannot be equated to a constitutional provision, we must hasten to add that the Elections Act, and the regulations thereunder, are normative derivatives of the principles embodied in articles 81 and 86 of the Constitution, and that in interpreting them, a court of law cannot disengage from the Constitution.
(78)
Applying these principles to the matter at hand, we hold that this appeal, indeed, falls within the ambit of article 163(4) (a) of the Constitution.”
66.
Being of a similar view, we have no difficulty in arriving at the determination that this court is seized with jurisdiction to entertain this appeal under the provisions of article 163(4)(a) of the Constitution. We overrule the preliminary objection and declare that the appeal passes the merit test for being heard and determined here. With that determination, we now turn to the second issue which turns on the construction and interpretation of section 83 of the Elections Act in the context of the application of the Constitution to that determination and as explained above and also below.
ii. Whether the Court of Appeal misapplied and misinterpreted Section 83 of the Elections Act
67.
The appellant has faulted both superior courts for misapplying the nullification test under Section 83 of the Elections Act. What this Court must now establish, based on arguments by the parties is whether, in upholding the judgment of the High Court, the Court of Appeal misapplied and misinterpreted section 83. For context, we reproduce below the constitutional provisions under which Section 83 of the Elections Act is anchored.
68.
In the first place, article81 (e) (i) to (v) of the Constitution provides that:
“
The electoral system shall comply with the following principles…..
e.
free and fair elections, which are...
i.
by secret ballot
ii.
free from violence, intimidation, improper influence or corruption;
iii.
conducted by an independent body;
iv.
transparent; and
v.
administered in an impartial, neutral, efficient, accurate, and accountable manner.”
69.
Article 86, on the other hand enjoins the 2nd respondent to ensure that at every election —
“
(a)
whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;
b.
the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;
c.
the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and
d.
appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials”
70.
These constitutional imperatives form the solid bedrock upon which our electoral system is built. There cannot be free and fair elections if the voting method used is not simple, accurate, transparent, or secure, and if the results are not verifiable. This is the irreducible threshold that all elections in this country must match. Any election conducted below this threshold will inevitably lead to nullification of the results.
71.
However, under section 83 of the Election Act, an election will not be nullified “for non-compliance with any written law relating to that election if it appears that—
a.
the election was conducted in accordance with the principles laid down in the Constitution and in that written law; and
b.
the non-compliance did not substantially affect the result of the election”.
72.
We have emphasized by underlining the word “and” because of the history of this provision to which we shall shortly revert. Suffice it to state at this stage that the original word in place of and was or, which accorded section 83 a disjunctive construction. The appellant has made a bold argument that both the High Court and the Court of Appeal erred in according to section 83 of the Elections Act a disjunctive and not a conjunctive interpretation; that in interpreting the said section, a petitioner must show substantial irregularities and substantial non•compliance with the law. This is how the appellant expressed his reservations about the interpretation given by superior courts below to Section 83:
“A reading of the section reveals that the drafters of that particular law recognized the possibility of certain errors and issues occurring during elections. To avoid turning elections conducted by human beings into perfection contests, they gave a leeway to the effect that faced with allegations of irregularities in an election, justice demands that the court should assess whether the said irregularities vitiated the voters' choice and resultantly affected the outcome of the election.
33.
This court has severally pronounced itself on the question of how to treat irregularities, and has maintained at all times that prudence requires that courts should assess the magnitude of the irregularities in order to gauge whether the same affected the results. Human errors and administrative lapses occasioned by human imperfection are not sufficient to nullify an election”.
73.
In the appellant’s opinion, therefore, the issues that were labeled and elevated to the level of irregularities were mere human errors that were sufficiently explained. Their minor nature, coupled with the explanation proffered was enough to uphold his victory.
74.
We have said that this argument is bold because we believe this question has traveled a well trodden path. The answer to this argument, though simple must be traced to the following historical legislative context of section 83.
75.
This court substantively considered the question of the construction to be given to section 83 aforesaid in 2017. For the reason that the section was not directly in issue in Raila 2013, the court did not render an authoritative interpretation but made only a tangential reference to it when addressing the applicable twin questions of burden and standard of proof in an election petition.
76.
However, in the 2017 Presidential Election petition (Raila 2017) which led to the nullification of that election for failing to comply with the Constitution and the applicable law pursuant to section 83 of the Elections Act, the court analyzed the operative word in the section as it stood then being “or” and held that the two limbs of section 83 of the Election Act should be applied disjunctively. So that, a petitioner who is able to satisfactorily prove either of the two limbs of the section can void an election. For example, it would suffice to demonstrate either that the conduct of the election substantially violated the principles laid down in the Constitution and the law on elections, or that, although the election was conducted substantially in accordance with the principles laid down in the Constitution and relevant laws, it was fraught with irregularities or illegalities that affected the result of the election. The majority in that case stressed in that context as follows:
“
303.
For the above reasons, we find that the 2017 presidential election was not conducted in accordance with the principles laid down in the Constitution and the written law on elections in that it was, inter alia, neither transparent nor verifiable. On that ground alone, and on the basis of the interpretation we have given to section 83 of the Elections Act, we have no choice but to nullify it.”
77.
The foregoing decision triggered the introduction in Parliament of the Election Laws Amendment Bill 2017. The intention was to amend the Elections Act, 2011, The Independent Electoral and Boundaries Commission Act 2011, and The Election Offences Act, 2016. Despite strong opposition from a section of Kenyans, the amendments sailed through the two Chambers of Parliament. However, when presented, the President neither assented to the Bill nor returned it to parliament as required by article 115(2) of the Constitution. After 14 days, the Bill became law by virtue of article 116 of the Constitution. It was published in the Kenya Gazette on November 2, 2017, effectively becoming the Election Laws Amendment Act No. 34 of 2017. It introduced a raft of very extensive changes in the management of election results, declaration of results, and annulment of election results.
78.
Of significance, the amendments introduced section 9 deleting section 83 of the Elections Act and introducing a new Section 83 whose effect was that an election cannot be voided except for failure to comply with constitutional principles and the law (and) the non-compliance substantially affected the results of the election, a conjunctive test. The word or in the original section was replaced with the word “and”.
79.
Katiba Institute, an organization whose objective was expressed to be the promotion of knowledge and understanding of Kenya’s Constitution and constitutionalism, and to defend and facilitate implementation of the Constitution, petitioned the High Court in Katiba Institute & 3 others v. Attorney General & 2 others [2018] eKLR challenging the amendments. Of relevance to the subject of this appeal, Katiba Institute applied for the declaration that the amendments were constitutionally invalid. The High Court (Mwita, J) agreed.
80.
Guided by the holding in Raila 2017, the learned judge observed as follows:
“
110.
With this holding the Supreme Court underlined one fact; that section 83 was in harmony with the 2010 Constitution and that it was different from the previous election laws. The amendment to section 83 which removed the disjunctive word ‘or’ and introduced the conjunctive word ‘and’ together with the word “substantially”, is a departure from the constitutional requirements for free, fair and transparent election and a draw back in the electoral reforms.
……
115.
The amendment now means that for an election to be annulled there must not only be failure to comply with the constitutional principles and election laws but also the failures must substantially affect the result of the election.…. It is my holding that there was no constitutional compulsion or rational in amending section 83 of the Act to remove the disjunctive word ‘or’ and introduce the conjunctive word ‘and.’’
81.
Following the High Court’s declarations in this respect, that the entire section 83 of the Elections Act 2011 was invalid, a debate raged as to the legal implications of striking down the section. This court in the Senate & 2 Others v. Council of County Governors & 8 Others, SC Petition No. 25 of 2019; [2022] KESC 7 (KLR) answered in the following passage found in paragraph 54 of the judgment:
“
(54)
Subsection (f) above was deleted by the amendment effectively removing the people’s representatives; members of the National Assembly and Senate from the County platforms envisaged by that section. We suppose this was informed by the fact that their participation had been moved to a new platform, the Board. With the deletion of (f) above, the modalities and platforms that were to be established under the section were reserved for citizen participation. Indeed, the entire PART VIII is devoted to citizen participation in counties. The effect of the court declaring the amendment unconstitutional was to restore section 91(f)” [Our emphasis].
82.
In the case before us, the provisions of section 83 ante were restored. This construction was followed and reaffirmed in Raila 2022. Today, the test to be applied in section 83 is a disjunctive one and not a conjunctive one as urged by the appellant. We do not see in what respect the courts below applied the wrong test. The Court of Appeal whose judgment is the subject of this appeal properly found that the 1st respondent needed to prove either of the two limbs. This ground must for those reasons fall.
We turn to the third and last substantive issue, where we have been asked to determine;
ii. Whether the Court of Appeal misconstrued the standard and burden of proof applicable in an election petition
83.
Again, we must observe from the onset that the twin question of the burden and standard of proof in election disputes is now settled in this jurisdiction. For example, on the burden of proof, it is established that the ordinary tenets of the law of evidence that the person who makes the allegation must have proof will apply. The entire Chapter IV (Part 1) of the Evidence Act is dedicated to the question of the burden of proof. Section 107(2) defines what constitutes a burden of proof thus:
“
2)
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
No similar definition of the meaning of the phrase “standard of proof” is provided for in the Evidence Act. However, the standard of proof simply refers to the level of cogency that the evidence should attain before the court can act in favour of the person who bears the burden of proof. It is the quantum of evidence demanded in a specific case for a party to succeed.
84.
Generally, there are two broad standards: proof beyond reasonable doubt in criminal cases and on preponderance of the evidence or balance of probabilities in civil cases. The expression “burden of proof’’ may refer to either the ‘legal burden’ or the ‘evidential burden.’ In between these standards, the courts have developed different levels of proof, depending on the specific type of case and the allegations, as we are due to explain shortly in respect of electoral disputes, which strictly speaking are not ordinary civil proceedings but sui generis. Depending on the evidence presented by the party who has brought a claim and who bears the legal burden, the evidentiary burden may in certain instances shift to the opposing party.
85.
Having established that proof of either of the two limbs under section 83 of the Election Act is sufficient to nullify an election, we must now turn to determine whether the superior courts below, in nullifying the appellant’s election properly construed the standard and burden of proof, as explained above. We reiterate that both the burden and standard of proof in election petitions are settled concepts in this jurisdiction. See Raila 2013, Raila 2017, and Raila 2022, among other judicial authorities. We restate those principles only for emphasis. Section 107 of the Evidence Act casts the burden upon the party who desires the court to give judgment as to any right or liability to provide proof that indeed those facts exist as pleaded. In Raila 2017, this court described the application of the legal and evidential burden of proof in election cases in the following words:
“
…a petitioner who seeks the nullification of an election on account of non-conformity with the law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds “to the satisfaction of the court.” That is fixed at the onset of the trial and unless circumstances change, it remains unchanged.”
86.
The court went on in the passage below to distinguish between the legal and evidential burden of proof and the circumstances under which the burden may shift to the opposite party;
“
(132)
Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.
(133)
It follows therefore that once the court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifts and it behooves the respondent to adduce evidence to prove compliance with the law.”
87.
Regarding the standard of proof in an election dispute, it is equally trite that in an allegation of an election offence or quasi-criminal conduct, the proof expected is one that is beyond reasonable doubt. In any other case, the standard has been set at an intermediate level, higher than the balance of probabilities but lower than beyond reasonable doubt. See Raila 2017 and Raila 2022. Applying these principles to the facts and considering the opinion of the Court of Appeal in this regard giving rise to this appeal, we declare that the legal burden rested on the 1st respondent to establish that there were violations, omissions, malpractices, irregularities, and illegalities in the conduct of the election of the Member of the National Assembly for Magarini Constituency or that those infractions affected the outcome of the election. The evidentiary burden would shift to the 2nd and 3rd respondents to show the contrary, only after the 1st respondent has discharged the legal burden.
88.
How did the question of the standard and burden of proof arise in this case? What was the nature of the evidence the burden of which is alleged to have been improperly shifted? The appellant has faulted the appellate court for failing to disturb the High Court’s erroneous shifting of the burden of proof from the 1st respondent to the appellant and the 2nd and 3rd respondents. More specifically, the appellant argued that with regard to Mapimo Youth Polytechnic, both superior courts erred in their determination that the ballot box was re-opened in the absence of all agents without such evidence being led; that instead they wrongly shifted the burden to the 2nd and 3rd respondents to demonstrate that all agents were present and witnessed the re-opening of the boxes and retrieval of Form 35A.
89.
While it is conceded that a ballot box was opened at Mapimo Youth Polytechnic Polling Station 1 of 6 at the tallying centre to retrieve Form 35A, followed by a recount and alteration of some forms, the 2nd and 3rd respondents argued before the trial court that the exercise was witnessed by all the agents. To establish that indeed all the agents were present during the exercise, the two courts below insisted that the onus remained with the 2nd and 3rd respondents to prove this fact on a preponderance of evidence; that it was not sufficient to merely state that all agents were present. The proof required of the 2nd and 3rd respondents to meet the standard of proof entailed the provision of the particulars of the agents who were present. Did they, for example, sign any form to signify their presence or did they counter-sign the alterations on Form 35A to authenticate it? Guided by the decisions in Maina Kiai and Ahmed Abdullahi Mohamed &Anor v. Hon Mohamed Abdi Mohamed & 2 others Election Petition No. 14 of 2017, the learned Judge of the High Court expressed himself as follows;
“
36.
R1W2 admitted the testimony of PW3. She stated that upon realizing the mistake, she called all the agents and the PO of the polling station and broke the seals on the ballot boxes in their presence to retrieve the original Form 35A which had been locked in the ballot box. That the PO then corrected the anomaly.
37.
A reading of regulations 81, 83, 86, and 93 of the regulations will show that, once ballot boxes are sealed at the polling station, there is no authority whatsoever to break open those ballot boxes without an order of the court.
39.
The voting process is an expression of the will of the people and once finalized, no one is allowed to tamper with the material used to express that sovereign will unless authorized by court or by law.
41.
…… This court notes that R1W7 did not enter any comments on the alterations made on Form 35A though he testified that it was his duty to comment on any alterations in the Form. He also testified that only some of the polling agents witnessed the recount and cancellation. However, there was no evidence to show which agents witnessed the recount and cancellation.
43.
It is this court’s finding that the opening of the ballot box was a serious irregularity. This was coupled with the established error of transferring the results of the petitioner to the 3rd respondent.
44.
PW5 testified that in Kinyaule polling station, the votes for Chad Karisa Hamadi were increased by 7 votes and Form 35A indicated a total of 81 votes while Form 35B showed 88 votes. This court has seen both forms and finds that the results therein are different and are as stated by PW5. There were discrepancies and inaccurate results in those statutory forms”. [Our emphasis].
90.
Satisfied with the veracity of the testimony of some of the witnesses, the learned judgeidentified several anomalies and irregularities that in his view compromised the integrity of the results announced at the end of the election. Some of those anomalies included instances where the 1st respondent’s votes were reduced, altered, or interchanged, failure by the presiding officer to sign some Forms 35A without recording that fact in the form itself, discrepancies between Forms 35A and 35B in several identified stations, agents barred from recording their objections in Form 35A regarding specified anomalies in particular stations, as well as the interchange of results during the transfer of results from Form 35A to 35B in two identified polling stations: in Vuga polling station, no single agent signed Form 35A and the only proffered explanation by the Presiding Officer was that the agents left for fear of attacks by elephants; there were statutory documents from specified stations that had alterations which were not countersigned and this fact, according to the learned judge was admitted by the Returning Officer.
91.
Ultimately, the court concluded on this ground, that the 1st respondent had established to the required standard that the documents relied upon in declaring the appellant the successful candidate were flawed and that;
“
63.
In many instances, it was the petitioner’s (1st respondent’s) votes that were either interchanged or altered without countersigning”.
92.
In agreeing with these conclusions, the Court of Appeal for its part stated that;
“
In our view the act of not only opening the ballot box but also proceeding to conduct a recount at the tallying centre was clearly against the decision in Maina Kiai case that the votes counted at the polling station are final. The finality of vote counting at the polling station would make no sense if a window for recounting is left open under some circumstances at the tallying centre. The issue was compounded by the evidence of Presiding Officer (R1W7), who admittedly failed in his duty to enter any comments on the alterations made. He further admitted that only some of the polling agents witnessed the recount and cancellation without indicating which agents did so.
93.
The court went on to fault the 3rd respondent saying;
“By opening the ballot box and carrying out a recount at the polling centre before ensuring that all the agents of the candidates were present, the election officials failed to meet the test of transparency”.
Specific to the issue of the agents who were present when the seals to the ballot box were broken, the recount of votes done, and alterations to the form made, the two courts were persuaded that only some and not all the agents were present. Further, even those present could not be ascertained.
94.
These are concurrent factual conclusions by the two superior courts. What is before us is a second appeal and as we emphasized in Sonko v. County Assembly of Nairobi City & 11 others; (Petition 11 (E008) of 2022); [2022] KESC 76 (KLR), the duty to re-evaluate evidence is the function of a first appellate court, in this case, the Court of Appeal. And even then, a first appellate court must accord deference to the trial court’s conclusions of fact and only interfere with those conclusions if it appeared to it, either that the trial court failed to take into account any relevant facts or circumstances or based on the conclusions of no evidence at all, or misapprehended the evidence, or acted on wrong principles in reaching the conclusions.
95.
As a second appellate court in this dispute, we similarly must treat with due deference the conclusions of fact reached by the trial court which had the initial opportunity to assess the evidence first hand and those of the first appellate court that independently analyzed and re-evaluated the evidence afresh by way of a re- trial before reaching its own conclusion. In other words, an appellate court has loyalty to accept the findings of fact of the lower courts and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, unless it is apparent that, on the evidence, no reasonable court could have reached the conclusions under challenge. Only cardinal issues of law or of jurisprudential moment, based, for example on the application and interpretation of the Constitution would deserve the further input of this court.
96.
We can do no better than to reinforce the pronouncement of this court in Munya 2, that;
“
[82]
…a petition which requires the appellate courtto re- examine the probative value of the evidence tendered at the trial Court, or invites the courtto calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted. We believe that these principles strike a balance between the need for an appellate Court to proceed from a position of deference to the trial Judge and the trial record, on the one hand, and the trial Judge’s commitment to the highest standards of knowledge, technical competence, and probity in electoral-dispute adjudication, on the other hand.”
97.
The courtwill entertain a question of fact as though it is an issue of law only if it is satisfied that the conclusions arrived at by the trial Judge in an election petition in the High Court were based on ‘no evidence’, or that the conclusions were not supported by the facts or evidence on record, or that the conclusions were ‘so perverse’, or so illegal, that no reasonable tribunal would arrive at the same conclusion.
98.
The submissions by the appellant and the 2nd and 3rd respondents appear to be inviting us to substitute ourselves into the two courts below and take up their roles of re-analyzing the evidence afresh for the third time. This will amount to parties re-arguing the factual aspects of this case under the guise of constitutional interpretation and application. We cannot find anywhere in the impugned judgment any erroneous or confused treatment of issues of law and fact. Instead, we find at paragraphs 52, 53, and 54 of the judgment a concise rendition of the court’s jurisdiction when hearing an appeal from the High Court sitting as an election court based on the provisions of section 85A of the Elections Act. It said;
“52.
Before embarking on a consideration of the matters raised, it is important to set out from the outset the jurisdiction of this courtwhen dealing with appeals from the High Court sitting as an election court.
53.
The Supreme Court clarified what constitutes “matters of law” in Gatirau Peter Munya v Dickson Mwenda Kithinji and 3 others [2014] eKLR where the three elements of the phrase “matters of law” were identified………
54.
Our determination of this appeal must therefore be based on the above principles and we shall, where necessary, revisit the facts of the case purely as regards the evidentiary element in order to satisfy us whether or not the conclusions of the High Court were based on the evidence on record”. [Our emphasis].
99.
To this clear and correct statement of the law, we wish to add from our reading of the judgment that the court did not misdirect itself as to the burden of proof. All it was concerned about was the standard of proof. It found that without the particulars of the agents who were allegedly present at the tallying centre and witnessed the breaking of the seals to the box, retrieval of the envelope, the recounting and retallying of votes at Mapimo Youth Polytechnic Polling Station 1 of 6, the 2nd and 3rd respondents fell short of meeting the threshold of proof expected of them. The breaking of the seals of the ballot box at the tallying centre after the conclusion of voting, the recount and the correction of Form 35A, in our considered view, was not only contrary to the law and settled judicial pronouncements but was also unwarranted. In considering this ground we have deliberately endeavored to avoid any engaging with the factual aspects of this case, except to the extent limited to satisfying ourselves whether the conclusions of the superior courts were based on the evidence on record or whether the conclusions were so perverse that no reasonable court would have arrived at them.
100.
On our assessment of all the factors, we arrive at the conclusion on this ground that the election officials did not meet the test of transparency and contravened the tenor and ratio decidendi in the Maina Kiai case, that decrees that results declared at the polling station are final because that is the true locus of the vote where verification exercise is done.
101.
The two superior courts made reference to the narrow margin of victory enjoyed by the appellant, which we wish to turn to only for the sole purpose of restating the dictum of this court expressed in its previous opinions. According to the learned Judge of the High Court, the irregularities, coupled with the opening of the ballot box, and undertaking a recount “as well as the small margin between the appellant and the 1st respondent affected the results of the election”.
102.
For the Court of Appeal, where there are several irregularities, though minor on their own, coupled with a major one such as the unlawful reopening of ballot boxes and conducting a recount in the absence of all the agents and without countersigning the alterations arising therefrom, “that may, where the margin is negligible, be, in our respectful view, a basis for nullifying the results”. The court qualified this statement by explaining that;
“
It is not in every case that the margin is small that the results of an otherwise properly conducted election must be nullified. A win is a win even if by only one ballot and absence any irregularities and illegalities in the conduct of the election, a court will not nullify the results of an election simply because the petitioner lost by a small margin. The conduct of the elections must be considered in its totality and all factors taken into account”.
103.
Indeed as Raila 2017 stressed, a win is a win and numbers are only one of its ingredients. The mere fact of a slim margin of votes cannot per se lead to the necessary inference that the result of the winning candidate has been materially affected. That is why we said in the judgment in that case that;
“
…whether it be about numbers, whether it be about laws, whether it be about processes, an election must at the end of the day, be a true reflection of the will of the people, as decreed by the Constitution, through its hallowed principles of transparency, credibility, verifiability, accountability, accuracy and efficiency.”
104.
Prior to this decision, the court in the Munya 2 had expressed the view that the issue of margins in an election other than a Presidential election, can bear only transient relevance and only where it is alleged that there were irregularities that affected the final result; that a narrow margin between the declared winner and the runner-up beckons as a red flag where the results are contested on allegations of counting and tallying errors at specified polling stations; and that where a re-count, re-tally or scrutiny does not change the final result as to the gaining of votes by candidates, the percentage or margin of victory however narrow, is immaterial as a factor in the proper election-outcome.
105.
How did the two courts deal with the question of scrutiny? Did the scrutiny report absolve the 2nd and 3rd respondents from any wrongdoing in the conduct of the Magarini Member of National Assembly election? In the amended petition, the 1st respondent sought an order of scrutiny of 19 polling stations. The prayer was granted on 18th January 2023. The Deputy Registrar prepared a scrutiny report dated January 23, 2023 after the exercise. Challenging the decision of the High Court in the Court of Appeal, the appellant stated in the grounds of appeal that the learned judge erred in law when he allowed scrutiny and recount of votes even when no basis had been laid for doing so; and that the learned judge misdirected himself in law by selectively relying on the scrutiny report in order to find for the 1st respondent. A similar challenge was contained in the Notice of Cross-Appeal filed on behalf of the 2nd and 3rd respondents dated April 14, 2023.
106.
Before this court it is the appellant’s contention that after the 1st respondent failed to adduce evidence in support of his claims, the two superior courts ended up making determinations that were at variance with the evidence and documents on record; that the two courts failed to rely on the scrutiny report which dispelled all the allegations made by the 1st respondent.
107.
From the record, it is plain to us that the learned judgeof the High Court devoted considerable space to analyze the scrutiny report, though he was overturned by the Court of Appeal on certain aspects. For example, on the effect of unstamped counterfoils, the mixup of the names of two polling stations, Majenjeni instead of Mjanaheri, among others. The Court of Appeal relied on the decision of the Supreme Court in Munya 2 and Gideon Mwangangi Wambua & Another v. IEBC & 2 Others, Mombasa Election Petition No. 4 of 2013 on the object of scrutiny and explained how scrutiny is a vehicle to assist the court to verify the allegations made by the parties to the petition which allegations themselves must be hinged on pleadings; that it was never intended to enable the court to unearth new evidence on the basis of which the petition could be sustained. In Walter Enock Nyambati Osebe v. The Independent Electoral and Boundaries Commission & 2 others; SC Petition No.28 of 2018, the Supreme Court considered the effect to be accorded of new evidence that emerges out of a scrutiny exercise, which evidence was not part of the pleadings. The court stated:
“[38]
In Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [supra], this court was categorical that a scrutiny exercise, is not a fishing expedition. It was never meant to aid a petitioner in finding evidence to support his/her case. Before a scrutiny is ordered by the election court, a basis must be laid by a party seeking it. The basis is to be laid in the pleadings or affidavit evidence. Even where a court orders a scrutiny suo motu, it must give reasons for such an order. Parties are bound by their pleadings and as such, are not allowed to latch onto whatever evidence to make a case they had not made in their initial pleadings. These principles have repeatedly guided the courts in election disputes, and we see no reason to vary them…”
108.
It would appear therefore that the report of the scrutiny did not yield the outcome expected by the 1st respondent when he sought it. That did not preclude him from presenting and relying on other pieces of evidence to illustrate that the election in question did not conform with the constitutional and legal imperatives. Indeed, the petition before the High Court raised several grounds. The prayer for scrutiny and reliance on the resultant report was but only one of them.
109.
From what we have stated in the previous paragraphs, it should be apparent the 1st respondent was able to prove on a balance of probabilities, non-compliance with the Constitution and electoral law in the manner the 2nd and 3rd respondents conducted the election, especially from the events at Mapimo Youth Polytechnic polling station 1 of 6, where there was unlawful reopening of the ballot box, alteration of forms without countersigning and a recount of votes in the absence of all the agents. There was an interchange of results at Mapimo Youth Polytechnic Polling Station 1 of 6; alterations of votes or wrong entries for Kayadagamra, Adimaye, Kinyaule Nursery School, Kibaoni Primary School Polling Station, Mekatili polling station, St. Peters Nursery School polling station and Chakama polling station.
110.
Finally, on the rejected ballot papers, three sentences will suffice to answer the appellant’s argument that rejected votes do not count in determining the winner. The trial court found that despite the numerous discrepancies in the rejected votes, the scrutiny exercise revealed that Form 42A for rejected votes was missing in about 15 out of the 24 polling stations. The Court of Appeal was silent on the matter. One: Regulation 81 of the Elections (General) Regulations 2012 enjoins the Presiding Officer upon completion of a count, including a recount, to seal in each respective ballot box, among other documents, rejected ballots sealed in a tamperproof envelope. Two: This court in Raila 2013 categorically stated that rejected ballot papers do not constitute a vote cast. Three: The requirements of regulation 81 (1)(b) were breached by the 2nd and 3rd respondents by their admitted failure to include Form 42A in the ballot boxes. Consequently, on this score, we respectfully agree with the appellant’s argument that rejected ballot papers should not be counted as valid votes, because they are to be rejected.
111.
In conclusion, we find no error in the determination of the Court of Appeal that the 1st respondent met the standard of proof thereby discharging the burden of proof and establishing that indeed there was non-compliance with the Constitution and the law or that the noted irregularities and illegalities did affect the final result, based on both limbs of section 83 of the Elections Act.
112.
For this reason, we find no merit in the appeal. It is hereby dismissed and for the avoidance of doubt, we affirm the judgment of the Court of Appeal, together with the directions on the declaration of the seat of the Member of the National Assembly for Magarini Constituency vacant and the direction to the 2nd respondent to conduct a by-election for Member of the National Assembly for Magarini Constituency in accordance with the law.
E. Costs
113.
Costs follow the event but are at the discretion of the court. We are guided by the principles on the award of costs enunciated in Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai Estate of & 4 others; SC Petition 4 of 2012; [2013] eKLR. The 1st respondent having been successful in the superior courts below and was awarded costs, we equally award him costs capped at Kshs. 2,000,000.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/25/eng@2024-05-31
Petition (Application) 32 (E036) of 2022,Sirikwa Squatters Group v Fanikiwa Limited & 20 others (Petition (Application) 32 (E036) of 2022 & Petition 35 (E038) & 36 (E039) of 2022 (Consolidated)) [2024] KESC 23 (KLR) (31 May 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",31 May 2024,2024.0,Nairobi,Civil,"Sirikwa Squatters Group
Applicant
and
Fanikiwa Limited
1st Respondent
Mary Jepkemboi Too And Sophia Jelimo Too (Suing as joint Administrators’ ad litem of the Estate of Mark Kiptarbei Too)
2nd Respondent
Lonrho Agribusiness (EA) Limited
3rd Respondent
David Korir
4th Respondent
The Commissioner Of Lands
5th Respondent
The Chief Registrar Of Titles
6th Respondent
Director Of Land Adjudication And Settlement
7th Respondent
Director Of Survey
8th Respondent
District Land Officer, Uasin Gishu District
9th Respondent
Highland Surveyors
10th Respondent
Kennedy Kubasu
11th Respondent
Ahmed Ferej & 60 Others
12th Respondent
Richard Kirui & 15 Others
13th Respondent
Stanbic Limited
14th Respondent
Kenya Commercial Bank Limited
15th Respondent
Eco Bank Limited
16th Respondent
Milly Chebet
17th Respondent
National Bank Of Kenya Limited
18th Respondent
Kenya Women Micro-Finance Bank
19th Respondent
Commercial Bank Of Africa
20th Respondent
Co-Operative Bank of Kenya
21st Respondent",[2024] KESC 23 (KLR),,"A. Introduction
1.
The applicant, Sirikwa Squatters Group, filed a Notice of Motion dated 20th December 2023, seeking the review of this Court’s judgment delivered on 15th December 2023. In particular, the applicant seeks the following orders:
a.
Spent.
b.
That this Court sets aside or reviews its Judgment delivered on the 15th December, 2023 and make orders vacating the above Judgment in its entirety on account that the Judgment is a nullity as the court itself was not competent and further that the Judgment was obtained by fraud or deceit and misrepresentation of facts and therefore for vacation and it is vacated and/or set aside in its entirety.(sic)
c.
That the Judgment of the Environment and Land Court Eldoret of the 9th February, 2017 and the Court of Appeal of the 18th November, 2022 be reinstated in full.
d.
That the orders of permanent injunction issued against Sirikwa Squatters Group from entering, taking possession of and in any other manner interfering with Fanikiwa’s (the 1st appellant) quiet possession of the suit properties described as LR No. Pioneer/Ngeria Block 1(EATEC) 7070, 7068, 3395, 5903, 2454, 476, 1860, 475, 5497, 5494, 5492, 5489, 5486, 1384, 1383, 5484, 474, 472, 5485, 5487,5490, 5488, 5491, 5493, 1861, 5496, 1862, 5491, 473, 477, 471,1353, 1375, 1374, 1379, 1378, 1380, 1381, 1382, 1852, 1386, 1385, 85,5495 and 5902 is hereby set aside, vacated and/or discharged in its entirety.
e.
And an order that the cost of and incidental to this application abide the result of the said proceeding.
f.
Such other or further orders as the Honourable Court may deem fit, just and appropriate in the circumstances.
2.
The application is premised on Section 21A of the Supreme Court Act, Cap 9B of the Laws of Kenya and the following summarized grounds:
a.
The Court was not competent to hear and determine the appeal as it should have restricted itself to constitutional grounds.
b.
The Court considered matters that went beyond Article 163(4)(a) of the Constitution and tried facts and evidence of the case. In particular, the Court interrogated whether the applicant was a squatter, the intent of surrender of the titles to the suit properties, and whether fraud was adequately proved against the Estate of Mark Too.
c.
The Court ignored and/or failed to mention or take cognizance of the letter dated 17th July 2007 contained at Vol.55 of the record of appeal from the Commissioner of Lands, M. Okungu, to the Hon. Attorney General. The letter confirmed that the said office had no objection to the allocation of the suit properties by the Late Daniel Moi, to the applicant.
d.
The Court held that the dispute ought to have been resolved through viva voce evidence and not purely affidavit evidence thereby overstepping its mandate.
e.
On fraud, the Court erroneously relied on the affidavit of R. J. Simiyu on the purpose of surrender. The said affidavit contained an annexture titled ‘surrenders of land dated the 1st November 2000’ which annextures were alleged to be new and additional evidence that were produced for the first time before the Supreme Court. They were allegedly not interrogated or considered by the Superior Courts below.
f.
The Court condemned the Late President Daniel Toroitich Arap Moi unheard.
g.
The Judgment was obtained through misrepresentation of facts. The appellants misrepresented that the land was allocated by the Late President Daniel Moi whilst the same was done by the Commissioner of Lands.
B. Background
3.
On 15th December, 2023, this Court made a number of findings including on its jurisdiction, where it determined that the consolidated appeal met the threshold set out in Article 163(4) (a) of the Constitution. It further found that the appellant’s right to a fair hearing was violated by the Superior Courts below and the trial Court ought to, in the specific circumstances of this case, have conducted the trial by taking viva voce evidence.
In addition, the Court stated that the applicant did not have a legitimate expectation of acquiring the suit properties as its members were not bona fide squatters thereon, and neither were the suit properties available for allocation as they had only been surrendered by the registered proprietor, Lonrho Agribusiness, the 3rd appellant, for purpose of conversion from leasehold interest under the RTA to freehold interest under the RLA.
4.
This Court subsequently made the following orders:
i.
The consolidated appeal is hereby allowed.
ii.
The judgment and orders of the trial and appellate courts are hereby set aside in their entirety.
iii.
The 1st respondent herein, to wit, Sirikwa Squatters Group, its agents, members, servants, employees and/or representatives are hereby permanently restrained from entering, taking possession of and in any other manner interfering with Fanikiwa’s (the 1st appellant) quiet possession of the suit properties described as LR No. Pioneer/Ngeria Block 1 (EATEC) 7070, 7068, 3395, 5903, 2454, 476, 1860, 475, 5497, 5494, 5492, 5489, 5486, 1384, 1383, 5484, 474, 472, 5485, 5487, 5490, 5488, 5491, 5493, 1861, 5496, 1862, 5491, 473, 477, 471, 1353, 1375, 1374, 1379, 1378, 1380, 1381, 1382, 1852, 1386, 1385, 85, 5495 and 5902;
iv.
We declare that the finding by the superior courts below to the effect that the retired President’s approval of allocation of the suit parcels and the subsequent surrender of the titles was for purposes of settling Sirikwa’s members, violated and arbitrarily deprived the 3rd appellant herein, Lonrho Agribusiness, of its rights over and interests in the suit parcels as guaranteed under Article 40 of the Constitution.
v.
All parties shall bear their own costs.
5.
It is this decision that the applicant urges the Court to review. It should be noted at this stage, that there appears to have been some confusion during filing of pleadings, with reference to the naming and allocation of numbering of the respondents by counsel in this application (as opposed to the reference naming and numbering in the appeal which was heard before). The Court has therefore taken the liberty of renaming and renumbering of the same for clarity, elegance and a concise reading of this ruling.","D. Preliminary Issue For Determination
13.
We note that on 31st January 2024, whilst before the Deputy Registrar of this Court, the applicant’s counsel made an oral submission in which he objected to the responses filed by the 2nd respondent/ appellant, 5th - 9th respondents, 13th and 21st respondents on the ground that time started running on 28th December 2023 and the responses ought to have been filed by 10th January 2024 or thereabouts. He urged the Court to either expunge all the documents filed after 30th January 2024 or grant the applicant leave to respond.
14.
In response, the 2nd respondent’s/appellant counsel similarly made oral submissions before the Deputy Registrar to the effect that they filed their replying affidavit on 15th January 2024, submissions and a list of authorities on 30th January 2024. Relying on Order 50 Rules 4 of the Civil Procedure Rules, he submitted that the time between 21st December 2023 and 13th January 2024 is excluded from computation of time. He urged that time began to run on 13th January 2024 and so, their documents were filed within the timelines given by the Court. He further urged that upon service of the supplementary affidavit on 22nd January 2024, time started running pursuant to which they filed their submission and list of authorities on 30th January 2024. The Deputy Registrar referred the resolution of this issue to the Court.
15.
The Supreme Court Act and the Supreme Court Rules, 2020 provide the substantive and procedural law for this Court. There is no basis therefore to rely on other laws unless expressly provided for, and unless there is a lacuna. See Daniel Kimani Njihia v Francis Mwangi Kimani & another, [2015] eKLR, and Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others (Application 12 (E021) of 2021) [2022] KESC 3 (KLR) (10 February 2022) (Ruling) where it was reiterated that the only regime of law that govern proceedings before the Court are, the Constitution, Supreme Court Act, the Supreme Court Rules and any Practice Directions. Further, it was held that the Appellate Jurisdiction Act and the Civil Procedure Rules are not applicable when moving this court; and that the court has to be moved under the correct provisions of the law. Rule 15 of the Supreme Court Rules, 2020 provides that time computation shall be in accordance with the Constitution, Section 57 of the Interpretations and General Provisions Act [Cap 2] and any directions of the Court. Subsection 2 provides that the Court may extend any time limited by the Rules or by any decision of the Court. These provisions are the ones that constitute the applicable law and not Order 50 Rule 4 of the Civil Procedure Rules, which clearly do not apply to this Court in the circumstances.
16.
Applying the provisions of Section 57 of the Interpretation and General Provisions Act to the instant case, 14 days from 28th December 2023 would take us to 18th January 2024 or thereabouts. Therefore, all the respondents were required to have filed and served their responses and submissions by 18th January 2024. Going by that, it follows that indeed the 2nd respondent/2nd appellant, 5th- 9th respondents, 13th and 21st respondents filed their responses out of time. We reject the 2nd respondent’s/2nd appellant’s argument that time re-opened after the applicant filed a supplementary affidavit on 22nd January 2024.
17.
That said, this Court has in the past underscored the importance of complying with timelines issued. For instance, in the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others, SC Petition No. 5 of 2016; [2018] eKLR, we held as follows:
“
[24]
We however acknowledge that the petitioner’s submissions were filed out of time…. We underscore the importance of complying with Court Orders and directions given especially with regard to filing and service of documents within the requisite time. That notwithstanding, we take cognizance of Rule 53 of the Supreme Court Rules, 2012 which gives us power to extend the time limited by the Rules, or by any decision of the Court. To this extent therefore, the late filing of submissions is not patently incurable.”
18.
In the Jane Cheperenger Case, we allowed the submissions that had been filed 30 days out of time and found that the same was not patently incurable. In the case of Kenya Railways Corporation & 2 Others v Okoiti & 3 Others, Petition (Application) 13 (E019) of 2020 & Petition 18 of 2020 (Consolidated); [2022] KESC 68 (KLR), we cited the decision in Jane Cheperenger Case. We, however, expunged the 1st respondent’s replying affidavit as it was filed almost 2 years after the petition was filed.
19.
Considering the circumstances of the present case, we note that despite the late filing, the applicant still exercised his right of rejoinder to all but one respondent, the 13th respondent. The 13th respondents’ grounds of opposition and submissions relay a similar argument to that of the other respondents. Further, the applicant has essentially responded to these submissions elsewhere. We are, therefore, of the considered opinion that it would be in the interests of justice to consider the averments by the 2nd respondent/2nd appellant, 13th and 21st respondents, late filing notwithstanding.
E. Issues for Determination
20.
Taking into account the submissions of all parties, one singular issue emerges for determination: Whether the applicant has established a basis for the review of this Court’s decision.
21.
The applicant is asking this Court to review its judgment delivered on 15th December 2023. It is a well-established principle that this Court cannot sit on appeal or review its decision(s) save for the manner prescribed under Section 21A of the Supreme Court Act, which provides as follows:
“
The Supreme Court may review its own decisions, either on its own motion, or upon application by a party in any of the following circumstances-
a.
where the judgment, ruling or order was obtained through fraud, deceit or misrepresentation of facts;
b.
where the judgment, ruling or order is a nullity by virtue of being made by a court which was not competent;
c.
where the court was misled into giving a judgment, ruling or order under the belief that the parties have consented; or
d.
where the judgment, ruling or order was rendered on the basis of repealed law; or as a result of a deliberate concealment of a statutory provision.”
22.
Rule 28(5) of the Supreme Court Rules, 2020 provides as follows:
“
(5)
The Court may review any of its decisions in any circumstance which the Court considers meritorious, exceptional, and in the public interest, either on the Court’s own motion, or upon application by a party.”
23.
The applicant argued that this Court considered matters that went beyond its constitutional and statutory jurisdictional mandate as it had no jurisdiction to hear the appeal in the first place. It further argues that the Court went beyond its constitutional mandate as set out in Article 163(4) (a). Secondly, it argues that the Court had no competence to try facts and evidence of the case, in particular, interrogating the applicant’s squatter status; considering whether fraud was adequately proved against the Estate of Mark Too; considering the allegation that Retired President Daniel Moi allocated the suit properties to the applicant and assessing the intent of the surrender of the titles to the suit properties.
24.
On the question of this Court’s jurisdiction to hear the appeal, we are in agreement with the 1st respondent’s/ appellant submissions that this Court rendered itself on the same in the judgment.
25.
As to the question of the alleged allotment of the suit properties to the applicant, the propriety thereof and to the finding that the applicants’ members were not squatters; we find that in order to resolve the dispute, it invariably followed that the Court could and would descend into the factual contestations. This was our holding in the case of Dina Management Limited v County Government of Mombasa & 5 Others, SC Petition 8 (E010) of 2021; [2023] KESC 30 (KLR) on the question of considering facts of a case. See Pars. 49 and 50.
26.
On the question of fraud, the applicant alleged that considering the affidavit of R.J. Simiyu was fraudulent since it contained an annexure titled “Surrenders"" dated 1st November 2000 that was not produced before the superior courts below. A perusal of the Court record will show that the affidavit of R.J. Simiyu was indeed presented before the Environment and Land Court and the Court of Appeal but it would appear that the depositions therein were not considered by the superior courts below. We find that the applicant has therefore failed to establish that the judgment was obtained through fraud, deceit or misrepresentation of facts.
27.
The applicant also raised other grounds to support his case for review for instance that the Late Retired President Daniel Moi was condemned unheard and the Court’s finding that the dispute ought to have been resolved through viva voce evidence. It is patently obvious that these are purely grounds for appeal, and not review.
28.
Looking at the issues raised by the applicant, we are unable to see how any of the grounds and allegations fall within the parameters of our jurisdiction of review. At best, the notice of motion is an appeal, disguised as an application for review. The applicant is clearly looking to have the Court reconsider and relook the entire judgment and overturn it, which this Court has no jurisdiction to do. In Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others, SC Petition No. 6 of 2014; [2017] eKLR, this Court held that it does not have the jurisdiction to sit on appeal over its own decisions. Further, that an application for review is not an appeal and it is not meant to give a litigant another bite at the cherry.
29.
In the circumstances, we find this application is for dismissal. The applicant having failed in the prayer for review, it does not suffice to consider the other prayers for reinstatement of the judgment of the Environment and Land Court and for injunctive reliefs as sought. In line with our decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition Application No. 4 of 2012; [2014] eKLR, we are inclined to award costs to the 1st - 4th respondents/appellants, the 12th, 13th, 14th, 15th, 18th and 21st respondents. Having expunged the 5th - 9th respondents documents, we shall not award them costs.
Orders
30.
Consequently, and for the reasons aforesaid, we make the following Orders:
i.
The application dated 20th December 2023 is hereby dismissed.
ii.
The applicant shall bear the costs of the application which shall be payable to the 1st-4th respondents/appellants, the 12th, 13th, 14th, 15th, 18th and 21st respondents.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/23/eng@2024-05-31
Petition (Application) 19 of 2015,Wanderi & 106 others v Engineers Registration Board & 6 others; Egerton University & another (Interested Parties) (Petition (Application) 19 of 2015 & Petition 4 of 2016 (Consolidated)) [2024] KESC 24 (KLR) (31 May 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko",31 May 2024,2024.0,Nairobi,Civil,Wanderi & 106 others v Engineers Registration Board & 6 others; Egerton University & another (Interested Parties),[2024] KESC 24 (KLR),,"1.
Upon perusing the Notice of Motion application dated 6th February, 2024 and filed on 12th February, 2024 pursuant to Articles 159 and 163(8) of the Constitution, Section 3A of the Supreme Court Act, and Rules 3(2), (4) and (5) of the Supreme Court Rules 2020, seeking, inter alia, to have this Court clarify that the applicant, who is the petitioner in Petition No. 4 of 2016, was awarded costs of the petition in this Court, the Court of Appeal and in the High Court pursuant to paragraph 259(c) of the Judgment of this Court delivered on 17th July, 2018; and
2.
Upon perusing the grounds on the face of the application and the supporting affidavit sworn on 6th February, 2024 by Edmond Wesonga, the Advocate on record for the applicant, where he contends that: the applicant filed Petition No. 4 of 2016 seeking to set aside the decision of the Court of Appeal in Civil Appeal No. 240 of 2013; the petition was subsequently consolidated with Petition No. 19 of 2015 filed by Martin Wanderi and 105 others, which became the lead file; that the Supreme Court allowed the consolidated petition and awarded costs to the petitioners as stated at paragraph 259 of the Judgment; and
3.
Upon perusing the applicant’s further grounds that: the applicant subsequently filed a Bill of Costs dated 16th July, 2019 seeking costs; when the parties appeared before the Registrar of this Court on 5th August, 2019 for taxation of the applicant’s Bill of Costs, the Registrar, at the 1st respondent’s urging, declined, failed and/or neglected to tax the Bill of Costs on the ground that the applicant was not awarded costs by the Court; and the parties were directed to seek clarification from the Court, which position was reiterated by the Deputy Registrar on 27th November, 2023 when the matter came up for mention; and
4.
Considering the applicant’s further contention that the Registrar taxed the Bill of Costs filed by the petitioners in Petition No.19 of 2015 except the applicant’s Bill of Costs; the Registrar has misinterpreted, misunderstood and misapprehended the order of the Court and is imposing illegal strictures into the Judgment of the Court; the refusal to tax the applicant’s Bill of Costs violates the Judgment of this Court and the elementary principle that costs follow the event; and that it is in the interest of justice that the applicant’s Bill of Costs be taxed this Court having awarded costs to the petitioners, who included the applicant in Petition No.4 of 2016;
5.
Taking into account the applicant’s submissions dated 7th February, 2024 and filed on 12th February 2024, the applicant urges that: this Court has inherent jurisdiction to clarify its judgment so as to give effect to its meaning, scope or intention pursuant to Section 3A of the Supreme Court Act and Rules 3(2), (4) and (5) of the Supreme Court Rules 2020; that this Court has in Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus)(Petition 15 & 16 of 2015)[2021] KESC 31 (KLR)(6 July 2021) (Direction) clarified the extent of the application of its judgment; and further relies on this Court’s decisions in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission Chairman (IEBC) & another Election Petition No. 1 of 2017 [2017] eKLR and Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition 4 of 2012 [2014] eKLR;
6.
Noting that the respondents, despite service of the application, neither filed responses, submissions nor participated in these proceedings. However, from the Court’s proceedings of 5th August, 2019 when the matter was mentioned before the Deputy Registrar, we note that Counsel for the 1st respondent objected to the applicant’s Bill of Costs being taxed on the ground that this Court did not grant the applicant costs;
7.
Bearing in mind the provisions governing this Court’s jurisdiction under the Constitution and the Supreme Court Act; the general principle is that once a Court has duly pronounced a final order, it becomes functus officio and has no power to alter the Order; and this Court’s decision in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others SC Petition No. 6 of 2014 [2017] eKLR where we stated that, “The stamp of finality with which this Court is clothed should not be degraded except in exceptional circumstances as determined by the Court itself.”","We have considered the application, affidavit in support and the submissions filed and now opine as follows:
i.
In John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others SC Petition No. 2 and 4 of 2017 [2017] eKLR this Court found it necessary to clarify certain aspects of the Court’s Judgment. In Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission Chairman (IEBC) & another Election Petition No. 1 of 2017 [2017] eKLR, a Ruling delivered on 17th October, 2017 on an application seeking a clarification of the Court’s Judgment, we stated as follows:
“
(56)
… This Court has no jurisdiction to interpret its decisions or those of other courts. On the face of it therefore, in ordinary circumstances, an application, which is based on tenuous jurisdictional foundations, such as the one before us ought …to be dismissed.”
ii.
In the same decision, however, while noting the public interest generated in the matter, in the exercise of the Court’s inherent powers, we proceeded to determine whether there was a matter to be clarified, stating that:
“
(58)
…To that limited extent of great public interest, we think that the submissions by the two counsel are not without merit. In exercise of the inherent powers of this Court, we shall therefore proceed to determine whether there is any matter to be clarified, and if so, to what extent. This assumption of jurisdiction, is all the more necessary, so as to avert the danger of an impression being created in the mind of the public, that there exists an ambiguity, in the Court’s Judgment, even where there might be none. If indeed there is an ambiguity, the assumption of jurisdiction will help eliminate the same. Having so decided, we now turn to the two questions as framed in the Notice of Motion.”
iii.
Similarly, in Cogno Ventures Limited v Bia Tosha Distributors Limited & 6 Others as consolidated with Andrew Kilonzo & 2 others v Bia Tosha Ditributors Limited; Kenya Breweries & Limited & 6 others (Interested parties) & Bia Tosha Ditributors Limited v Kenya Breweries Limited & 11 others; Javier Feran & 24 others (Contemnors); Kamahuha Limited & Another (Interested Parties) SC Application Nos. E005; E006 & E012 of 2023 (as consolidated) (unreported) we stated as follows:
“(38)
It emerges that the parties either misunderstood our judgment rendered on 17th February 2023 or are outrightly mischievous. Having authoritatively made our decision on the issues before us in Petition No. 15 of 2020, it was this Court’s expectation that all parties thereto, would act in accordance with what the Court meant. It is not for this Court to interpret its decisions or those of other courts to the different litigants. With the issuance of the judgment, the Court became functus officio. The only narrow opportunity for the court’s jurisdiction is by way of review vide an application as permitted by the Supreme Court Act and Rules.
(39)
However, to the extent that there is need to avert protracted legal battles, more so when the substantive dispute is pending at the High Court, we shall invoke the inherent powers of this Court to determine whether there is any matter for clarification and if so, to what extent we can exercise the power of review as sought in the two applications or deal with contempt as raised in the third application…”
iv.
In the exercise of this Court’s inherent powers pursuant to Section 3A of the Supreme Court Act Cap 9B, we proceed to determine whether indeed there is ambiguity in the Court’s Judgment delivered on 17th July, 2018, in respect to the award of costs to the applicant, to warrant clarification. The relevant portion of the paragraph to be clarified as sought by the applicant states as follows:
“(259)
In the premises, Petition No.4 of 2016 dated 22nd April, 2016 and Petition No. 19 of 2015 dated 30th November, 2015 are hereby allowed and the High Court Judgment reinstated to the extent of our orders below:
……
c.
The Engineers Registration Board, shall bear the costs of the Petitioners and 2nd Interested Parties in Petition No. 19 of 2015, in the High Court, Court of Appeal and in this Court. The said costs shall carry interest at a rate of 12% per annum respectively from the date of judgment in each respective judgment in each respective judgment until payment in full.
d.
All other parties shall bear their own costs.”
v.
According to the applicant, it was awarded costs as entitled, having succeeded in the appeal. A plain reading of this order does not infer any ambiguity as alleged by the applicant, requiring this Court’s clarification, or at all. At paragraph 259 of the said Judgment, we did allow the consolidated petition, that is, Petition No. 4 of 2016 and Petition 19 of 2015. The Court was, however, categorical on which party was entitled to costs in the consolidated petition by specifically making reference to the petitioners and 2nd Interested Parties in Petition No.19 of 2015. These were the affected students who had resorted to court action. This can be drawn from the Court’s reasoning in the judgment as follows:
“
(170)
Lastly, as the students have been successful in their appeal as against the Board; we allude to the general principle on award of costs: that costs follow the event and find that the Board shall bear the costs of the students.” (Emphasis ours)
Further, paragraph 259(d) was to the effect that all the other parties (including the applicant) would bear their own costs.
(v)
To avoid any further misapprehension, misinterpretation or misunderstanding of the Court’s Judgment, and in order to settle any doubts on the part of the applicant, including apprehension on the taxation of its Bill of Costs dated 16th July 2019, no order was made by this Court granting the applicant costs. At any rate, the applicant is not a student. We find the application to be wrought in mischief and reiterate, as we held in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition 4 of 2012 [2014] eKLR, that costs are granted at the discretion of the Court. We stated:
“
(22)
Although there is eminent good sense in the basic rule of costs
– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.”
(v)
Taking into account the age of the dispute, we are mindful not to protract the same any further on account of costs. We find it appropriate to make no order as to costs as regards the present application.
9.
Consequently, for reasons aforesaid, we make the following orders:
i.
The Notice of Motion dated 6th February, 2024 and filed on 12th February, 2024 be and is hereby dismissed; and
ii.
There shall be no orders as to costs.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/24/eng@2024-05-31
Application E033 of 2023,Ithongo (Suing as Legal Representative of the Estate of Geoffrey Ithongo Thindiu- Deceased) v Ithongo (Suing as Legal Representative of the Estate of Ishmael Ithongo - Deceased) (Application E033 of 2023) [2024] KESC 17 (KLR) (10 May 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, W Ouko",10 May 2024,2024.0,Nairobi,Civil,"Kennedy Thindiu Ithongo (Suing as Legal Representative of the Estate of Geoffrey Ithongo Thindiu- Deceased)
Applicant
and
Harry Kinuthia Ithongo (Suing as Legal Representative of the Estate of Ishmael Ithongo - Deceased)
Respondent",[2024] KESC 17 (KLR),,"1.
Upon perusing the Notice of Motion dated 8th September, 2023 and filed on 30th October, 2023 by the applicant, Kennedy Thindiu Ithongo, acting in person, pursuant to Order 42 rule 6 and 51 of the Civil Procedure Rules, Articles 50(2) and 159 of the Constitution and any other enabling law seeking the following order:
“That this court be pleased to grant the applicant leave to appeal out of time against the judgment of the Honourable Justice Musinga, Hon. Lady Justice Sichale and Hon. Justice Omondi in Court of Appeal at Nairobi in Civil Appeal Case No. 16 of 1981 delivered at Nairobi on 23rd September 2022.”
2.
Upon perusing the affidavit sworn by the applicant, on 8th September 2023 in support of the Motion and written submissions dated 23rd October 2023 contending that; the origin of the dispute concerned an adverse possession claim instituted by way of Originating Summons in suit HCCC No. 1031 of 1977 by Ishmael Ithongo against his kinsman Geoffrey Ithongo Thindiu (both deceased and substituted by their respective legal representatives) concerning a parcel of land known as Kabete/Kibichiko/190; the High Court (Scriven J.) in its judgment delivered on 31st July 1979 dismissed the claim by Ishmael Ithongo with costs; Ishmael Ithongo aggrieved, appealed to the Court of Appeal in Civil Appeal No. 16 of 1981; the Court of Appeal (Law, Miller JJ.A & Simpson Ag. J.A) in its judgment delivered on 10th July, 1981 allowed the appeal ordering that Ishmael Ithongo be registered as the proprietor of the suit land and Geoffrey Ithongo Thindiu vacate it and remove his personal property within three(3) months; the applicant vide his application dated 15th March, 2018 sought review of the decision citing among other grounds, that the Court lacked proper jurisdiction having proceeded without substituting Ishmael Ithongo after his demise and further failing to pronounce itself on the existence of the traditional trust known as ‘muramati’ where upon the demise of the father, the eldest son in the family becomes trustee of all lands on behalf of all his brothers; the Court of Appeal (Musinga, Sichale & Omondi JJ.A) in its ruling delivered on 23rd September 2022 dismissed the application finding that substitution was properly done and the traditional trust extensively addressed; and
3.
Upon noting that the Applicant in the present application contends that he is aggrieved by the Ruling delivered on 23rd September, 2022 for the reason that he was never served with the notice of delivery of the ruling; further, that he is aggrieved by the decision in the initial appeal which denied him and his family their right to be heard as the appeal was determined with impunity since it was heard ex parte and the appeal decided in favour of the respondent who was a member of staff of the Judiciary; additionally that had he and his family been given a chance to be heard, as noted by the High Court (Scriven J.), the respondent being a family member would not have been granted the orders of adverse possession considering that the applicant’s father, by virtue of being the eldest son, was the registered trustee and thus the respondent would have received a share by way of subdivision and not an absolute share of the land leaving the applicant and his family destitute and landless; and he therefore seeks an overhaul of the entire decision made in Civil Appeal No. 16 of 1981 for the sake of natural justice and for this Court to uphold the decision by the High Court (Scriven J.) dated 31st July 1979; and
4.
Upon further noting that the respondent in his replying affidavit sworn on 8th December 2023 and written submissions dated 11th December 2023 is opposed to the application on grounds that: there has been inordinate delay of about one year in filing the intended appeal and the applicant has failed to proffer a plausible or sufficient explanation for the delay after the ruling delivered on 23rd September, 2022; the applicant is guilty of attempting to mislead the Court by stating that he was not notified of the ruling despite being present in court on 30th May, 2022 when the Court of Appeal issued the ruling date and delivered the ruling on schedule; the application is an afterthought, the applicant having been jolted to action following the settlement of terms on 9th October 2023 before the Deputy Registrar of the Court of Appeal; the intended appeal is not arguable as the applicant has failed to cite any of the grounds of review of a ruling under Order 45 of the Civil Procedure Rules as well as failing to annex a draft memorandum of appeal to allow the Court gauge the arguability of the applicant’s intended appeal; the present application is misconceived as the applicant has already exercised his option to seek review of the judgment of the Court of Appeal and is therefore precluded from seeking an appeal from the ruling on the review application; the respondent and his family would suffer great prejudice if the application were to be allowed as the appeal has already been determined on its merits; and
5.
Furthermore, noting the response by the applicant through his affidavit sworn on 22nd December 2023 wherein he contends that: despite his application for review before the Court of Appeal coming up for hearing on 30th May, 2022, he was never served with notice of the ruling date and hence was unaware of the ruling given; the lack of notice is a sufficient and plausible explanation for the delay in filing of an appeal against the Ruling; the application is well founded in law and follows the procedure required under the Civil Procedure Rules as well as the rules which require him to seek the leave of Court to be allowed to appeal out of time; he urges that members of his family have been buried in public cemeteries and due to the continuous dispute between the two families, there is division in the family; finally that litigation can only come to an end upon crystallization of every opportunity in law, hence the instant the application; and
6.
Noting that the applicant is presenting the instant Motion has relied largely on the provision of the Civil Procedure Code: and
7.
Appreciating that the Court, under Rule 15(2) of the Supreme Court Rules, 2020 has discretionary powers to extend the time limited by the Rules or by any of its decisions and that an applicant seeking extension of time must satisfy the guiding principles set out in Nicholas Kiptoo Arap Korir Salat
v.
Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; [2014] eKLR among other authorities on what a Court should consider in exercise of such discretion on extension of time and which we restate hereinunder as follows:
i.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
ii.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
iii.
Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
iv.
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
v.
Whether there will be any prejudice suffered by the respondents if the extension is granted;
vi.
Whether the application has been brought without undue delay; and
vii.
Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
8.
Further appreciating that under Rule 36 (1) of the Supreme Court Rules, 2020, a person intending to appeal to the Court ought to file a Notice of Appeal within fourteen days from the date of judgment or ruling which is subject of the appeal; and
9.
Additionally bearing in mind that this Court has settled that the only regime of law that governs proceedings before it is, the Constitution, Supreme Court Act, the Supreme Court Rules and any Practice Directions made by the Court or the Chief Justice. And noting that in Daniel Kimani Njihia v Francis Mwangi Kimani & Another, Civil Appl No. 3 of 2014; [2015] eKLR, it was stated thus:
“
(14)
This Court’s jurisdiction is exercisable only on the basis of express provisions of the Constitution and the law. The operational rules for this Court (Supreme Court Rules, 2012) are made pursuant to the Constitution, Article 163(8) of which provides:
“The Supreme Court shall make rules for the exercise of its jurisdiction”.
(15)
Consequently, the only applicable sources of law when moving the Supreme Court are the Constitution, the Supreme Court Act, and the Supreme Court Rules, 2012. The Appellate Jurisdiction Act is not applicable when moving this Court. Neither is the Civil Procedure Code. In the Hermanus case, this Court had indicated how it should be moved, thus [paragraph 23]:
“
… It is trite law that a Court of law has to be moved under the correct provisions of the law.”
Hence, without thus identifying the proper legal framework for the motion, an application is liable to be struck out.”
10.
Further, in the County Executive of Kisumu vs County Government of Kisumu & 8 others, SC Civil Appl. No 3 of 2016; [2017] eKLR, it was held that an applicant seeking extension of time, cannot rely on the provisions of the Civil Procedure Code nor can they import the Court of Appeal Rules for matters before the Supreme Court. Reference has to be made to the Supreme Court Rules, 2020 and not any other rules of procedure.","Having therefore considered the application, responses and submissions before us, We now opine as follows:
i.
Taking into account that the applicant, though a layman acting on his behalf, has conflated issues in appealing against the Ruling by the Court of Appeal issued on 23rd September, 2022 as opposed to appealing against the Judgment of the Court of Appeal rendered in 1981. However, from his assertions, it is evident that the applicant’s intention is to overturn the Judgment delivered on 10th July, 1981, decades before the establishment of this Court.
ii.
The applicant has erroneously relied upon the provisions of the Civil Procedure Rules which are not applicable in proceedings before this Court. He has also failed to explicitly state the relevant provisions of the Constitution, the Supreme Court Act and Rules rendering his application liable for striking out.
iii.
Those errors notwithstanding, the applicant failed to file a Notice of Appeal within the requisite period in order to properly invoke the jurisdiction of this Court as against the Ruling delivered on 23rd September, 2022.
iv.
Additionally, the applicant has failed to annex his intended Petition of Appeal or grounds of appeal which he would wish the court to consider in his intended Petition of Appeal.
v.
Further, the applicant has failed to give sufficient reasons for the delay of one year from the date of delivery of the Ruling of the Court of Appeal.
vi.
Finally, it would greatly prejudice the respondent to reopen the matter settled almost forty-three (43) years ago in the Judgment of the Court of Appeal delivered on 10th July, 1981.
12.
As regards costs, in the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate of & 4 others, SC. Petition No. 4 of 2012; [2013] eKLR it was settled that costs follow the event and that the Court may in appropriate cases exercise discretion and decide otherwise. In the circumstances, it is our considered opinion that it would not serve justice to condemn the applicant to pay costs as he was endeavoring to exhaust every remedy available to him to ventilate his case.
13.
Consequently, and for the reasons aforestated we are NOT inclined to exercise our discretion in favour of the applicant and we make the following orders:
i.
The Notice of Motion dated 8th September, 2023 and filed on 30th October, 2023 be and is hereby dismissed.
ii.
There shall be no order as to costs.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/17/eng@2024-05-10
Petition (Application) E004 of 2024,Kiamba & 3 others v Ethics & Anti-Corruption Commission & another (Petition (Application) E004 of 2024) [2024] KESC 19 (KLR) (Crim) (10 May 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"SC Wanjala, MK Ibrahim, N Ndungu, I Lenaola, W Ouko",05 June 2024,2024.0,Nairobi,Criminal,"Jimmy Mutuku Kiamba
1st Applicant
Tracy Mbinya Musau
2nd Applicant
Jimbise Limited
3rd Applicant
Muthaiga Green Acres Limited
4th Applicant
and
Ethics & Anti-Corruption Commission
1st Respondent
Equity Bank Limited
2nd Respondent",[2024] KESC 19 (KLR),,"Brief facts
The instant application sought for among other orders; conservatory and/or interim orders staying the execution of the judgment of the Court of Appeal pending the hearing and determination of the application. The applicants claimed that their appeal was arguable with a high probability of success as it raised complex issues of constitutional interpretation that could not be properly determined at an interlocutory stage. The applicants further claimed that their appeal was premised on several grounds including that their constitutional rights to property, fair hearing, fair administrative action and freedom from discrimination were infringed upon by the 1st respondent when it instituted proceedings at the High Court for forfeiture of unexplained assets under section 55(5) and (6) of the Anti-Corruption and Economic Crimes Act despite the High Court having made a finding that the assets were not acquired as a result of corrupt conduct. The applicants contended that, unless the application was allowed, the appeal would be rendered nugatory and an academic exercise; and that the applicants would suffer prejudice. The 1st respondent on the other hand argued that the appeal did not involve the interpretation or application of the Constitution nor did it relate to any recurrent issue of cogent constitutional controversy and therefore no right of appeal under article 163(4)(a) of the Constitution lay to the court.
Issues
What were the requirements to invoke the Supreme Court’s appellate jurisdiction as of right in any matter relating to the interpretation or application of the Constitution.
Whether mere reference of constitutional principles by the Court of Appeal was sufficient to invoke the Supreme Court’s appellate jurisdiction as of right in any matter relating to the interpretation or application of the Constitution. What were the guiding principles in granting an order of stay of execution? Held
Before the court granted an order for stay of execution, an appellant, or intending appellant, must satisfy the court that; the appeal or intended appeal was arguable and not frivolous;
unless the order of stay sought was granted, the appeal or intended appeal were it to eventually succeed, would be rendered nugatory; and,
that it was in the public interest that the order of stay be granted. An appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. Where the interpretation or application of the Constitution had only but a limited bearing on the merits of the main cause, then the jurisdiction of the court could not be properly invoked. The mere reference to the rich generality of constitutional principle as the Court of Appeal did in the instant case, was therefore not a sufficient ground to invoke article 163(4)(a) of the Constitution. The application of section 26 of the Anti-Corruption and Economic Crimes Act to the effect that the provision was permissive rather than mandatory in informing persons of interest of the intention to investigate bank accounts or search premises and it was left to the discretion of the 1st respondent to do so, such a matter could not attract any interpretation or application of the Constitution and to attract the court’s attention under article 163(4)(a) of the Constitution. The gist of the applicants’ appeal involved a determination of the proper interpretation or application of the provisions of sections 55 and 56 of the Anti-Corruption and Economic Crimes Act and whether or not the threshold of forfeiture had been met to warrant the orders of forfeiture of assets granted, neither the High Court nor the Court of Appeal attempted to interpret or apply sections 26, 55 or 56 of the Anti-Corruption and Economic Crimes Act in the context of their constitutionality or otherwise. The issues raised by the applicants were not sufficient to trigger the court’s jurisdiction under article 163(4)(a) of the Constitution and neither the petition of appeal nor the instant motion were properly before the court. Consequently, the court had no jurisdiction to hear and determine Petition No. E004 of 2024 or the instant application for conservatory or stay orders. Petition of appeal and application struck out.
Orders
Kshs. 6,000 to be deposited as security for costs in the appeal be refunded to the appellant; no order as to costs. Citations
Cases
Board Of Governors, Moi High School, Kabarak & Daniel Toroitich Arap Moi v Malcolm Bell (Civil Application 12 & 13 of 2012; [2013] KECA 13 (KLR)) — Followed
Ethics and Anti-Corruption Commission & another v Tom Ojienda, SC t/a Prof. Tom Ojienda & Associates Advocates & 2 others (Petition 30 & 31 of 2019 (Consolidated); [2022] KESC 59 (KLR)) — Followed
Ethics & Anti Corruption Commission v Joseph Chege Gikonyo, Lucy Kangai Stephen & Giche Limited; Francis Irungu Thuita (Interested Party) (Anti-Corruption and Economic Crimes Case 14 of 2018; [2018] KEHC 1757 (KLR)) — Followed
Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, (Petition 2 of 2014; [2014] KESC 49 (KLR))
Hassan Ali Joho & Hazel Ezabel Nyamoki Ogunde v . Suleiman Said Shahbal, Independent Electoral & Boundaries Commission & Mwadime Mwashigadi (Civil Appeal 12 of 2013; [2013] KECA 435 (KLR)) — Followed
Lawrence Nduttu and 6000 Others v Kenya Breweries Ltd & Another (SC Petition No. 3 of 2012 [2012] eKLR) — Followed
Stanley Mombo Amuti v Kenya Anti-Corruption Commission (Petition 21 of 2019; [2020] KESC 45 (KLR)) — Followed
Statutes
Anti-Corruption And Economic Crimes Act (cap 65) — section 26 ; 55(5) ; 55(6) — Interpreted
Constitution of Kenya — article 25(c) ; 27 ; 40 ; 47; 50(2)(o) — Cited
Supreme Court Act (cap 9B) — section 21 ; 25 — Interpreted
Supreme Court Rules (cap 9B sub leg) — rule 31 ; 32 — Interpreted
Advocates
1. Mr Makokha for the applicants (Prof Tom Ojienda & Associates
2. Ms Faith Ng’ethe for the 1st respondent (Ethics & Anti-Corruption Commission)
3. Ms Nazi for the 2nd respondent (Kithi & Company Advocates)
Ruling
1.
Upon reading the Notice of Motion dated February 22, 2024and filed on March 4, 2024 expressed to be brought under sections 21 and 25 of the Supreme Court Act, 2011 and Rules 31 and 32 of the Supreme Court Rules, 2020 seeking orders;
1.
Spent
2.
That the Honourable Court be pleased to issue conservatory and/or interim orders staying the execution of the judgment dated February 9, 2024 in Nairobi Court of Appeal Civil Appeal No 464 of 2019 pending the hearing and determination of this Application;
3.
That this Honourable Court be pleased to issue conservatory and/or interim orders staying the execution of the judgment dated February 9, 2024in Nairobi Court of Appeal Civil Appeal No 464 of 2019 pending the hearing and determination of this Appeal;
4.
That the costs of this Application be provided for.
2.
Upon perusing the grounds on the face of the application, the supporting affidavit of Jimmy Mutuku Kiamba, the 1st applicant, and the submissions dated on February 22, 2024 filed on behalf of the applicants to the effect that their appeal is arguable with a high probability of success as it raises complex issues of constitutional interpretation that cannot be properly determined at an interlocutory stage; that their appeal is premised on several grounds including the applicants’ claim that their constitutional rights to property, fair hearing, fair administrative action and freedom from discrimination were infringed Upon by the 1st respondent when it instituted proceedings in Nairobi High Court ACEC No 1 of 2016 for forfeiture of unexplained assets under section 55(5) and (6) of the Anti-Corruption and Economic Crimes Act (ACECA) despite the High Court in Misc Civil Application No 804 of 2014 having made a finding that the assets were not acquired as a result of corrupt conduct. Further, the applicants fault the court of Appeal for having erred; in failing to hold that there was no finding of corrupt conduct on acquisition of the subject assets on the part of the applicants hence the order of forfeiture was unlawful and infringed on their right to property guaranteed under article 40 of the Constitution; in failing to consider the applicants’ contention that the conduct of the 1st respondent, in commencing investigations against the 2nd and 3rd applicants and continuing with Further investigations against the 1st applicant, was tantamount to trial for an offence that they had been previously tried and acquitted of and this was in violation of article 50(2)(o) and article 25(c) of the Constitution; in failing to find that the High Court Judge was biased and discriminated against the applicants by arriving at a different conclusion from a similar one in a past ruling, in violating the applicants’ freedom from discrimination guaranteed under article 27 of the Constitution; failing to independently and impartially consider the evidence before it and instead relying solely on the misrepresentation by the 1st respondent thereby infringing on the applicants’ right to fair hearing; and relying on the presumption by the 1st respondent that the 2nd applicant was incapable of owning property by herself, other than through her husband, which was discriminatory of the latter on the basis of gender and in violation of article 27 of the Constitution.
3.
Further, the applicants contend that, unless the application is allowed, the appeal will be rendered nugatory and an academic exercise for several reasons including that; there is a real danger that the applicants will be evicted from their matrimonial home which forms part of the properties to be forfeited to the government and their children rendered destitute; the applicants will suffer prejudice, denied rights to fair administrative action and fair hearing under articles 47 and 50 of the Constitution as well as lose their right to property under article 40 of the Constitution as the substratum of the appeal would have been defeated with the 1st respondent taking possession of the properties subject of these proceedings. Finally, it is contended that the 1st respondent will not suffer any prejudice if the applicants were granted the opportunity to exhaust their remedies of appeal and the public interest tilts towards staying execution of the judgment of the court of Appeal delivered on 9th February, 2024; and
4.
Upon considering the 1st respondent’s Notice of Grounds Affirming the Decision dated March 12, 2024, the Replying Affidavit sworn on March 12, 2024 by Catherine Ngari, the 1st respondent’s Forensic Investigator, and submissions dated March 12, 2024 in opposition to the application, to the effect that the application has been filed for the sole purpose of delaying the inevitable forfeiture of assets to the State which the court found to be unexplained; there is no arguable appeal and the appeal is frivolous; citing this court’s decision in Lawrence Nduttu & 6000 v Kenya Breweries Ltd & another; SC Petition No 3 of 2012 [2012] e KLR, it is argued that the appeal does not involve the interpretation or application of the Constitution nor does it relate to any recurrent issue of cogent constitutional controversy and therefore no right of appeal under article 163(4)(a) of the Constitution lies to this court; the 1st respondent had conducted investigations and the applicants were afforded a reasonable opportunity to explain the disproportion between the assets concerned and their legitimate sources of income which explanation was deemed unsatisfactory; that in Stanley Mombo Amuti v Kenya Anti-Corruption Commission; SC Petition No 21 of 2019 [2020] eKLR this court found that in cases of unexplained wealth proceedings, no appeal would lie to this court as of right as such cases are concerned with the application of sections 26 and 55 of the ACECA and not the interpretation of the Constitution, therefore any application or interpretation of the Constitution would be peripheral or have a very limited bearing on the main case; the intended appeal would not be rendered nugatory as the State has the means to make restitution to the applicants in the event that they are successful; and public interest does not lie in favour of permitting the applicants to retain that which has lawfully been found to be unexplained and acquired through corruption; and
5.
Upon considering the applicants’ supplementary submissions addressing the question of jurisdiction of the court to determine the appeal and instant application wherein it is contended that section 55 of ACECA is a normative derivative of the principles embodied in article 40(6) of the Constitution and therefore the superior courts, in determining forfeiture of unexplained assets, were applying the provisions of article 40 of the Constitution; in seeking to distinguish their case from Stanley Mombo Amuti v Kenya Anti-Corruption Commission(supra), they argue that forfeiture of unexplained assets proceedings is a substantive issue touching on article 40 depending on the circumstances of the case but not every case may necessitate the need for application and interpretation of the Constitution; they therefore urge that, their case is different as there was already a determination by a competent court in a Ruling in Miscellaneous Civil Application No 804 of 2014 delivered on June 25, 2015 that the subject properties were not acquired as a result of corrupt conduct; this aforestated Ruling should have rested the matter unless the 1st respondent had appealed against it, which it did not, but instead instituted High Court ACEC No. 1 of 2016; that despite raising this issue before the High Court, the court found that the proceedings in Miscellaneous Civil Application No 804 of 2014 were in regard to preservation orders under section 56 of ACECA; that in arriving at this finding, the High Court departed from its previous position in EACC v Joseph Chege Gikonyo & 2 Others; Francis Irungu Thuita (Interested Party) [2018] eKLR; that because of this departure, the applicants have properly imputed inconsistency, bias and discrimination against them on the part of the High Court Judge.
6.
Further, the applicants have submitted that, despite raising the aforestated issue for determination before the court of Appeal, the court only acknowledged but failed to determine the same leaving the issue unsettled and uncertain and therefore this court ought to determine the question whether the High Court was biased and discriminated against them and Further, whether the court of Appeal, by failing to determine the issue, violated their constitutional right to fair hearing guaranteed in article 25(c) of the Constitution; relying on the decision in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others; SC Petition No 10 of 2013 [2014] eKLR, it is urged that a question of interpretation and application of the Constitution may arise from a multiplicity of factors and interrelationships in the various facets of the law; Further relying on the decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others it is argued that, where specific constitutional provisions cannot be identified as having formed the gist of the case at the court of Appeal, the very least an applicant should demonstrate is that the court’s reasoning and conclusions leading to the determination of the issues, put in context, can be properly said to have taken the trajectory of constitutional interpretation and application; that in addition to the question of violation of the applicants’ right to property enshrined in article 40 of the Constitution, the applicants have also raised fundamental questions of their constitutional rights and freedoms under articles 25(c), 47 and 50 of the Constitution, whose violation rendered the hearing unfair; that these substantive questions were in issue in all the superior courts below unlike in the case of Stanley Mombo Amuti v Kenya Anti-Corruption Commission(supra); and
Having considered the application, affidavits, rival arguments by the parties,
We Now Opine as follows:
7.
Guided by the provisions of section 23A of the Supreme Court Act, this court has jurisdiction to issue an order for stay of execution, an injunction, a stay of Further proceedings or any other conservatory or interim orders, on such terms as the court may deem fit; and
8.
Considering this court’s finding on its jurisdiction to grant orders of stay of execution of decrees issued by superior courts in the case of Board of Governors, Moi High School, Kabarak & Another v Malcolm Bell, Petition Nos 6 & 7 of 2013; [2013] eKLR and restating this court’s guiding principles on grant of stay of execution orders in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No. 5 of 2014 [2014] eKLR, to the effect that before this court grants an order for stay of execution, an appellant, or intending appellant, must satisfy the court that;
i.
the appeal or intended appeal is arguable and not frivolous;
ii.
unless the order of stay sought is granted, the appeal or intended appeal were it to eventually succeed, would be rendered nugatory; and,
iii.
that it is in the public interest that the order of stay be granted.
9.
Taking Note of this court’s jurisdiction as delineated in article 163(4)(a) of the Constitution and our decision in Lawrence Nduttu and 6000 Others v Kenya Breweries Ltd & Another; SC Petition No. 3 of 2012 [2012] eKLR where we stated that an appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution and added as follows:
“In other words, an appellant must be challenging the interpretation or application of the Constitution which the court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a Further appeal to the Supreme Court under the provisions of article 163(4)(a) of the Constitution”.
10.
Appreciating that in the case of Stanley Mombo Amuti v Kenya Anti-Corruption Commission, SC Petition No 21 of 2019 [2020] eKLR we found that, where the interpretation or application of the Constitution had only but a limited bearing on the merits of the main cause, then the jurisdiction of the court could not be properly invoked. In the same case we added that the mere reference to the rich generality of constitutional principle as the court of Appeal did in the instant case, was therefore not a sufficient ground to invoke article 163(4)(a) of the Constitution. More specifically, and relevant to the application before this court, we Further held that proceedings regarding unexplained wealth and its forfeiture concern the application of sections 26 and 55 of ACECA and the threshold of forfeiture of property rather than the specific constitutional questions revolving around interpretation or application of articles 40 and 50;
11.
Further, Appreciating that in the case of Ethics and Anti- Corruption Commission & Another v Tom Ojienda, SC T/a Prof Tom Ojienda & Associates Advocates & 2 Others (Petition 30 & 31 Of [2019] (Consolidated)) [2022] KESC 59 (KLR) this court determined the application of section 26 of ACECA to the effect that the provision was permissive rather than mandatory in informing persons of interest of the intention to investigate bank accounts or search premises and it was left to the discretion of the 1st respondent to do so and we now add that, such a matter cannot attract any interpretation or application of the Constitution and to attract our attention under article 163(4)(a).
12.
And Noting that the gist of the applicants’ appeal involves a determination of the proper interpretation or application of the provisions of sections 55 and 56 of ACECA and whether or not the threshold of forfeiture had been met to warrant the orders of forfeiture of assets granted, we find no difficulty in concluding that neither the High Court nor the court of Appeal attempted to interpret or apply sections 26, 55 or 56 of ACECA in the context of their constitutionality or otherwise;
13.
Applying the principles in Lawrence Nduttu and 6000 Others v Kenya Breweries Ltd & Another (supra), it is our considered view that the issues raised by the applicants are not sufficient to trigger this court’s jurisdiction under article 163(4)(a) of the Constitution and neither the Petition of Appeal nor the present Motion are properly before us and we uphold the 1st respondent’s submissions on the issue of jurisdiction. To sustain the Petition of Appeal having made that firm finding would not be a useful venture on the part of the court or parties and it would be in the interest of justice and expeditious disposal of cases that we do not extend the life of such a petition.
14.
Consequently, we find that this court has no jurisdiction to hear and determine Petition No E004 of 2024 or the instant application for conservatory or stay orders.
15.
On costs, having found that we have no jurisdiction to address any of the issues raised in both the Petition of Appeal and the Motion before us, we shall exercise discretion and order that there shall be no order as to costs.
16.
Accordingly, and for the reasons aforestated we make the following orders:
i.
The Petition of Appeal No. E004 of 2024 dated 19th February, 2024 and filed on 4th March, 2024, be and is hereby struck out for want of jurisdiction;
ii.
The Notice of Motion dated 22nd February, 2024 and filed on 4th March 2024, be and is hereby struck out;
iii.
We hereby direct that the sum of Kshs. 6,000/= deposited as security for costs in the appeal herein be refunded to the appellant; and
iv.
There shall be no order as to costs.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF MAY, 2024.
..............................................
M.K. IBRAHIM
JUSTICE OF THE SUPREME COURT
..............................................
S. C. WANJALA
JUSTICE OF THE SUPREME COURT
..............................................
NJOKI NDUNGU
JUSTICE OF THE SUPREME COURT
..............................................
I. LENAOLA
JUSTICE OF THE SUPREME COURT
..............................................
W. OUKO
JUSTICE OF THE SUPREME COURT
I certify that this is a true copy of the original
REGISTRAR
SUPREME COURT OF KENYA","Accordingly, and for the reasons aforestated we make the following orders:
i.
The Petition of Appeal No. E004 of 2024 dated 19th February, 2024 and filed on 4th March, 2024, be and is hereby struck out for want of jurisdiction;
ii.
The Notice of Motion dated 22nd February, 2024 and filed on 4th March 2024, be and is hereby struck out;
iii.
We hereby direct that the sum of Kshs. 6,000/= deposited as security for costs in the appeal herein be refunded to the appellant; and
iv.
There shall be no order as to costs.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/19/eng@2024-05-10
Petition (Application) E008 of 2024,Aluochier v Likowa & 2 others (Petition (Application) E008 of 2024) [2024] KESC 12 (KLR) (26 April 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",26 April 2024,2024.0,Nairobi,Civil,"Isaac Aluoch Polo Aluochier
Applicant
and
Charles Owino Likowa
1st Respondent
Vincencia Awino Kionge
2nd Respondent
County Assembly of Migori
3rd Respondent",[2024] KESC 12 (KLR),,"1.
Before the Court is another in a series of applications in this matter that have failed to resolve the dispute before us. Perhaps that is what drove Mr. Okong’o for the 1st Respondent to exclaim before the Deputy Registrar of the Court (Hon. B. Kasavuli) on 12th April 2024; “Given the history [of this matter]…we are not even sure whether we are doing the right or wrong thing because we have been following the rules and nothing seems to be working for the parties.’’ These words are poignant for reasons to be made apparent shortly.
2.
The Notice of Motion dated 26th March 2024 and filed on even date is NOT premised on any provision of the Constitution, Section of the Supreme Court Act, 2011 nor the Supreme Court Rules, 2020 but it seeks an order that this Court does adopt a consent filed by the parties on 14th February 2024 at the High Court in Migori within proceedings in Constitutional Petition No. E006 of 2022; in the alternative, it seeks an order that the said consent be remitted to the High Court at Migori for adoption as an order of that court; and
3.
Upon Perusing that consent, we note that the gist of it is that all the parties herein consented to the judgment dated 21st February 2023 in Constitutional Petition No.E006 of 2002 and the resultant decree issued therein being reviewed, set aside and/or otherwise vacated alongside all consequential orders issued therein; and
4.
Noting that there is no response to the Motion with all Counsel for the Respondents “leaving the matter to Court,” We Now Opine as follows:
i.
The Motion before us is bare of any jurisdictional foundation upon which we can act and adopt a consent that has not been filed in this Court but has been received, filed and stamped by the High Court at Migori within its proceedings and which are distinct and separate from the matter before us.
ii.
It has not escaped our attention that there is in fact no consent filed before this court to determine the proceedings before us and as correctly stated by Mr. Okong’o, Advocate, all parties herein have been groping in the dark as to how they can progress the resolution of the issues they have placed before us. The Applicant’s grounds in support of the Motion, while very well written, do not help matters at all in that regard and we do not know how we can remit a consent that is not filed before us to another court even if that course of action were feasible.
iii.
Counsel and parties appearing before this Apex Court ought to know how they should properly approach us and not by gambling and living in the hope that whatever they file may attract our sympathetic ear. We can only act under known procedures and not by whim or an attempt at resolving every issue placed before us for the sake of doing so.
iv.
The Motion is frivolous, utterly vexatious and while the Applicant is a layman, he is a regular litigant in Kenyan courts and ought to have known better. The less said about the conduct of Counsel for the Respondents in “leaving” such a simple matter “to the Court,” the better.
v.
While dismissing the Motion before us, noting that no Respondent has opposed it, we shall order that each party should bear its costs.","Accordingly, we make the following Orders:
a.
The Notice of Motion dated 26th March 2024 is hereby dismissed.
b.
Each party shall bear its costs.
6.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/12/eng@2024-04-26
Petition (Application) E012 of 2023,Dari Limited & 5 others v East African Development Bank (Petition (Application) E012 of 2023) [2024] KESC 18 (KLR) (Civ) (26 April 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko",21 May 2024,2024.0,Nairobi,Civil,"Dari Limited
1st Petitioner
Raphael Tuju
2nd Petitioner
Mano Tuju
3rd Petitioner
Alma Tuju
4th Petitioner
Yma Tuju
5th Petitioner
SAM Company Limited
6th Petitioner
and
East African Development Bank
Respondent",[2024] KESC 18 (KLR),,"Brief facts
Before the Supreme Court were two notices of motion applications filed by the petitioners. The first application sought leave to adduce additional evidence while the second one sought to strike out the respondent’s replying affidavit sworn by Carol Luwaga on January 31, 2024 in response to the petitioners’ first application. On the first application, the petitioners affirm that the further witness statement adduced by the respondents was not within their knowledge and allowing additional evidence from the petitioner would remove the vagueness of the slanted historical narrative contained in the respondent’s response. On the second application, the petitioners contended that they effected service of their application to adduce additional evidence upon counsel on record for the respondent on January 30, 2024 at 8. 30AM in compliance with the Court’s directions issued on January 29, 2024. That the respondent without any justifiable cause and in total disregard of the Court’s directions purported to effect service of its unfiled response upon the petitioners electronically on February 1, 2024 at 11. 43AM; then proceeded to attempt to serve their duly filed response together with their submissions upon the petitioners on the same day at 1:40PM, which was 4 hours and 40 minutes after the Court’s stipulated time of compliance, that was 9.00AM on even date. Pursuant to rule 12 as read with rule 16 of the Supreme Court Rules, filing was only deemed to be completed upon the actual filing of documents and / or pleadings both physically and electronically. The respondent neither provided viable reasons as to the non – compliance nor was leave sought to file its response out of time; therefore, the only redress to maintain the sanctity of the Supreme Courts’ records was striking out the response.","Consequently, and for the reasons aforesaid we make the following orders:
i.
The notice of motion dated and filed on January 26, 2024 is hereby dismissed.
ii.
The notice of motion dated and filed on February 2, 2024 is hereby dismissed.
iii.
Costs of the applications shall abide the outcome of the appeal.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/18/eng@2024-04-26
Application E051 of 2023,National Land Commission v Tom Ojienda & Associates & 2 others (Application E051 of 2023) [2024] KESC 16 (KLR) (26 April 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, SC Wanjala, I Lenaola, W Ouko",26 April 2024,2024.0,Nairobi,Civil,"Dari Limited
1st Petitioner
Raphael Tuju
2nd Petitioner
Mano Tuju
3rd Petitioner
Alma Tuju
4th Petitioner
Yma Tuju
5th Petitioner
SAM Company Limited
6th Petitioner
and
East African Development Bank
Respondent",[2024] KESC 16 (KLR),,,"Consequently, and for the reasons aforesaid we make the following orders:
i.
The notice of motion dated and filed on January 26, 2024 is hereby dismissed.
ii.
The notice of motion dated and filed on February 2, 2024 is hereby dismissed.
iii.
Costs of the applications shall abide the outcome of the appeal.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/18/eng@2024-04-26
Petition 34 (E035) of 2022,Kampala International University v Housing Finance Company Limited (Petition 34 (E035) of 2022) [2024] KESC 11 (KLR) (12 April 2024) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",12 April 2024,2024.0,Nairobi,Civil,"Kampala International University
Appellant
and
Housing Finance Company Limited",[2024] KESC 11 (KLR),,"A. Introduction
1.
Before this court is an amended petition dated August 18, 2023 and lodged on August 22, 2023. It is brought pursuant to article 163(4)(a) of the Constitution, sections 15(2), 20, 21 and 22 of the Supreme Court Act, 2011 and the enabling provisions of the Supreme Court Rules, 2020. The appeal challenges the ruling of the Court of Appeal (Musinga (P), Murgor & Sichale, JJA) delivered in Civil Application No.E343 of 2021 on October 21, 2022, wherein the appellate court declined to grant the appellant leave to appeal against the High Court Decision emanating from sections 35 and 39 of the Arbitration Act.
B. Background
2.
Following the success of its existing campuses, the appellant (Kampala International University) was desirous of expanding into the Kenyan market. It acquired land in Kitengela with an intention to construct its Kitengela Campus at an estimated cost of USD 15,000,000.00. Similarly, sometime in 2010, the appellant approached the respondent, (Housing Finance Company Limited), and the respondent accepted to advance to the appellant a loan facility of USD 15,000,000.00 on terms and conditions set out in the parties’ correspondence and contract documents, including various Term Sheets.
3.
In January 2014, the respondent disbursed a sum of USD 10,000,000.00. As for the balance of USD 5,000,000.00, it was contended by the appellant that there was inordinate delay in the release of the same, and that the respondent thereafter only disbursed USD 1,300,000.00, but failed to disburse the balance of USD 3,700,000.00. Various reasons for the delay in disbursement, non-payment of the balance or otherwise were advanced by the parties.","E. Issues for Determination
42.
From our consideration of the pleadings, the findings of the superior courts below, and the submissions by counsel, we consider the following two issues, the determination of which should dispose of this Appeal.
i.
Whether this court has jurisdiction to hear and determine the appeal; and
ii.
Whether the appellant has met the threshold for grant of leave to appeal to the Court of Appeal.
F. Analysis
On Jurisdiction
43.
It is the respondent’s contention that this court lacks jurisdiction to determine the appeal herein. The reasons for this view are well illuminated in the foregoing paragraphs 36, 37 and 38 of this judgment. The crux of the respondent’s argument in this regard, is that on the basis of the long line of authorities cited in support, there having been no contestation regarding an issue of the interpretation or application of the Constitution, at both the High Court and Court of Appeal, no further appeal can lie before this court under article 163(4)(a) of the Constitution.
44.
The only issue before the superior courts, submits the respondent, was whether the arbitral tribunal had jurisdiction to determine the dispute, given his alleged failure to disclose his relationship with the respondent’s counsel. At the end of the day, what was at stake was whether the High Court rightly declined to set aside the arbitrator’s Award within the meaning and scope of section 35 of the Arbitration Act. As such, argues the respondent, no question turned on the interpretation and application of the Constitution.
45.
The appellant on the other hand, submits that this court has jurisdiction to determine the appeal herein, on grounds stated in the foregoing paragraphs 26 to 28 of this Judgment. It is the appellant’s submission that at the Court of Appeal, the main issue revolved around the interpretation of inter alia articles 25 and 50 of the Constitution. At any rate, argues the appellant, the question of jurisdiction is res judicata, the same having been determined in an earlier ruling by this court in Kampala International University v Housing Finance [Supra] (see paragraph 29).
46.
Before addressing ourselves regarding the question whether this court has jurisdiction to determine the appeal herein, we consider it important to restate the principle that without jurisdiction, a court of law is incapable of rendering any valid ruling, order or judgment. In the ruling cited by the appellant as authority for its contention that the issue of jurisdiction is now res judicata, all that this court did, was to preserve the substratum of the appeal by holding that the same was arguable. The said ruling did not foreclose future interrogation of whether, the court’s jurisdiction has been validly invoked, either by the court suo motu, or by a party to these proceedings.
47.
Having so stated, what then are we faced here with? What is before us is an appeal against a ruling of the Court of Appeal declining to grant leave to appeal against a High Court Judgment affirming an arbitral award under section 35 of the Arbitration Act. In Teachers Service Commission v Kenya National Union of Teachers and 3 others, SC Application No 16 of 2015; [2015] eKLR; the court observed thus:
“
In almost all cases where the Supreme Court has been called upon to invoke its jurisdiction under article 163(4)(a) of the Constitution, the court has almost invariably proceeded on the assumption that there exists a substantive determination of a legal/constitutional question by the Court of Appeal which the intending appellant seeks to impugn.
Indeed, in general, this is the rational meaning to be ascribed to the word ‘appeal’, in an adversarial system where jurisdiction is assigned by the legal norms to a hierarchy of courts.”
48.
In this case, the issue was whether article 163(4)(a) of the Constitution, confers upon the Supreme Court jurisdiction to entertain an interlocutory application, challenging the Court of Appeal’s orders issued by the latter in exercise of its discretionary authority under rule 5(2) (b) of that court’s rules. In declining to assume jurisdiction, the court held:
“
In these circumstances, we find that this court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under rule 5(2)(b) of that court’s rules, there being neither an appeal nor an intended appeal pending before the Supreme Court.”
49.
In Basil Criticos v Independent Electoral and Boundaries Commission & 2 others, SC Petition No 22 of 2014; [2015] eKLR; presented with an almost similar scenario, the court stated:
“
The application before us contests the exercise of discretion by the appellate court, where there is neither an appeal, nor an intended appeal pending before this court. Moreover, the appeal before the Court of Appeal is yet to be heard and determined. An application so tangential, cannot be predicated upon the terms of article 163(4)(a) of the Constitution. Any square involvement of this court, in such a context, would entail comments on the merits, being made prematurely on issues yet to be adjudged, at the Court of Appeal, … Such an early involvement of this court, in our opinion, would expose one of the parties to prejudice, with the danger of leading to an unjust outcome.
…
It is clear to us that an appeal against a Court of Appeal decision declining to extend time is not a matter falling under the purview of article 163(4)(a) of the Constitution. In the absence of a Judgment by the Court of Appeal, in which constitutional issues have been canvassed, what would this court be sitting on appeal over?”
50.
The Supreme Court in latter decisions, tempered the foregoing principle with some exceptions, where it could assume jurisdiction notwithstanding the fact that, an appeal before it was against an interlocutory decision by the Court of Appeal. Thus, where the Court of Appeal had made an interlocutory decision which in essence amounted to a substantive determination of a constitutional question that had been canvassed right from the High Court, the Supreme Court could rightly assume jurisdiction in an appeal arising therefrom. Indeed, such had been the case in the Hassan Ali Joho case.
51.
This principle has been variously restated in later decisions by the court. For example, in Ananias N Kiragu v Eric Mugambi & 2 others SC Application No 10 of 2019 [2020] eKLR, the court stated:
“
As a general rule, the Supreme Court does not entertain appeals on interlocutory decisions where the substantive matter is still pending before the superior courts save where the appeal is not only on a substantive determination by the Court of Appeal of a constitutional question, but also on an issue that has been canvassed right from the High Court to the Court of Appeal even though the substantive matter is still pending before the High Court…”
52.
Similarly, in Paul Mungai Kimani & 2 others v Kenya Airports Authority & 3 others SC. Petition No 11 of 2019 [2021] eKLR; the Court reaffirmed this position as it stated:
“We have severally held that this court has no jurisdiction to entertain appeals from interlocutory decisions save where the interlocutory decision in question is a substantive determination of a constitutional issue that has been canvassed through the superior courts below.”
53.
Another exception where the Supreme Court may assume jurisdiction notwithstanding the fact that the decision against which an appeal has been preferred is one which was delivered by the Court of Appeal in exercise of its powers under rule 5 (2)(b), arises if the appellate court goes beyond the preservation of the substratum of the appeal, and issues orders that are likely to occasion an injustice to one of the parties. Such was the case in Deynes Muriithi & 32 others v Law Society of Kenya & anor; SC. Application No 12 of 2015 [2015] eKLR wherein, in issuing a Stay under rule (5) (2)(b), the appellate court went further to issue an ancillary order in the following terms:
“
That the monies due from the respondents towards the intended construction of the Law Society of Kenya International Arbitration Centre be deposited in an interest earning account in the joint names of learned counsel for all the parties herein to be opened in any sound financial institution to be mutually agreed upon by learned counsel for all the parties herein within thirty (30) days of the date of the reading of this ruling.”
54.
In setting aside, the above order, the Supreme Court observed thus:
“We are concerned about the justice of the case. With the appellate court ordering that ‘the monies due from the respondents (applicants herein) be deposited in an interest earning account.” The effect of this order is to require the applicants to pay up the sums which are in contention and which form the subject-matter of the petitions before the High Court. It cannot be gainsaid, that the order of the Court of Appeal has a pre-emptive effect on the petitions pending before the High Court where the applicants hope to be accorded a fair hearing.”
55.
We now turn to the question before us, i.e. whether we have jurisdiction to determine this appeal. The arguments by both parties regarding this issue have already been elaborately set out in the foregoing paragraphs of the judgment. It is instructive to note that the impugned judgment by the Court of Appeal, is interlocutory in nature, and as such must be weighed against the established principles in the decisions by this court as discussed above. It is also important to restate the fact that, the appeal herein is against a decision by the Court of Appeal, declining to grant leave to appeal, not to this court, but to the appellate court itself. The intended appeal is against a judgment of the High Court affirming an Arbitral Award. On the face of it, and weighed against our decision in the Teachers Service Commission case, [supra], this court would ordinarily have no jurisdiction to determine the appeal, there being no pending appeal or an intended appeal before us.
56.
However, the appellant has strongly submitted that what was before the High Court and Court of Appeal was a question of constitutional interpretation, the determination of which is being appealed to this court. Such a scenario would bring the intended appeal within the exception to the general rule as enunciated in the Hassan Ali Joho, Ananias Kiragu, and Paul Mungai Kimani decisions (Supra). The respondent on the other hand, in its preliminary objection is categorical that the only issue before the Court of Appeal was whether in its application for leave to appeal, the applicant had met the threshold set out by this court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited & another [2019] eKLR and Synergy Industrial Credit v Cape Holdings Ltd [2019] eKLR.
57.
The question as to whether an appeal lies as of right to the Court of Appeal against a decision of the High Court decision under section 35 of the Arbitration Act was settled with finality by this court in the Nyutu Agrovet case (supra). The court stated;
“
In concluding on this issue, we agree with the interested party to the extent that the only instance that an appeal may lie from the High Court to the Court of Appeal on a determination made under section 35 is where the High Court, in setting aside an arbitral award, has stepped outside the grounds set out in the said section and thereby made a decision so grave, so manifestly wrong and which has completely closed the door of justice to either of the parties. This circumscribed and narrow jurisdiction should also be so sparingly exercised that only in the clearest of cases should the Court of Appeal assume jurisdiction.”
58.
The court went on to state that leave would have to be sought from and granted by the Court of Appeal before an intending appellant files the appeal. This mechanism would in the words of the court:
“
be the answer to the process by which frivolous, time wasting and opportunistic appeals may be nipped in the bud and thence bring arbitration proceedings to a swift end.”
59.
This principle was restated in the Synergy case wherein the court stated:
“For the avoidance of doubt, we hereby restate the principle that not every decision of the High Court under section 35 is appealable to the Court of Appeal. It also follows therefore that an intended appeal, which is not anchored upon the four corners of section 35 of the Arbitration Act, should not be admitted. In this regard, an intended appellant must demonstrate (or must be contending that) in arriving at its decision, the High Court went out of section 35 of the Act for interfering with an arbitration award.”
60.
In determining whether to grant leave to appeal, the Court of Appeal framed one issue for determination, ie, whether the applicant had met the threshold for grant of such leave as set out by this courtin the Nyutu Agrovet case. The appellate court answered the question in the negative, having held that the applicant sought to challenge the jurisdiction of the Arbitral Tribunal notwithstanding the fact that, the arbitrator had been appointed by consent of the parties. At any rate, the court held, any challenge to the arbitrator’s tribunal on grounds of bias, ought to have been made during the arbitral proceedings in accordance with sections 13, 14 and 17 of the Arbitration Act.
61.
We are, in agreement with the respondent to the effect that indeed, the only issue that was before the Court of Appeal was whether the applicant had met the threshold for grant of leave as established by this court in the Nyutu and Synergy cases [Supra]. We see no constitutional issue that had been canvassed at the High Court, the determination of which, was substantively decided by the Court of Appeal.
62.
The appellant submits that by being denied the opportunity to make oral submissions in support of its argument challenging the jurisdiction of the Arbitrator, the High Court violated its right to a fair hearing under article 50 of the Constitution. This submission did not find favour, and rightly so in our view, with the Court of Appeal. It is this same argument that the appellant has advanced before us in a bid to bring the appeal within the ambit of article 163(4)(a) of the Constitution. This court has consistently held that the mere claim by a party to the effect that its rights were violated by a superior court for whatever reason, does not bring the intended appeal within the purview of article 163(4)(a) of the Constitution. The appeal herein does not fall within any of the exceptions which would justify this court’s assumption of jurisdiction over a ruling by the Court of Appeal, there being no pending or intended substantive appeal therefrom. The Court of Appeal has jurisdiction when leave is sought to appeal the decision of the High Court on the setting aside an arbitral award under section 35, to interrogate the substance of the intended appeal. Thus, in Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR we elucidated the issue as follows:
“After our pronouncements in Nyutu and Synergy, it is not possible that the Court of Appeal can grant leave to appeal from a section 35 Judgment of the High Court without interrogating the substance of the intended appeal, to determine whether, on the basis of our pronouncement, such an appeal lies""
In fact, we are satisfied that, by declining to grant leave to appeal in the circumstances of this case, the Court of Appeal was correctly guided by our decisions in Nyutu Agrovet and Synergy [supra].
63.
Consequently, there is no basis upon which this court can assume jurisdiction to overturn or otherwise deal with the Court of Appeal’s decision declining to grant leave to appeal to the appellant herein. This conclusion also disposes of the second issue that we had framed for determination.
64.
The following orders shall issue:
G. Orders
65.
i.
The amended petition of appeal dated August 18, 2023is hereby dismissed;
ii.
The costs of this appeal shall be borne by the appellant.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/11/eng@2024-04-12
Advisory Opinion Reference E001 of 2023,Legal Advice Centre t/a Kituo Cha Sheria v Attorney General (Advisory Opinion Reference E001 of 2023) [2024] KESC 15 (KLR) (12 April 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",12 April 2024,2024.0,Nairobi,Civil,Legal Advice Centre t/a Kituo Cha Sheria v Attorney General,[2024] KESC 15 (KLR),,"A. Introduction
1.
The applicant, by way of Reference No. E001 of 2023 and dated May 31, 2023, seeks to invoke the Supreme Court’s Advisory Opinion Jurisdiction pursuant to the provisions of article 163(6) of the Constitution.
2.
The applicant seeks an advisory opinion from this court on the following questions:
a.
Whether there is a limitation to exercise the rights under article 37 of the Constitution;
b.
Under what circumstances can this right provided for under article 37 of the Constitution be invoked;
c.
Whether states can interfere with the right to freedom of assembly;
d.
In the event of executing the right under article 37 of the Constitution, who should be held liable for losses and damages to property;
e.
Whether the police play any role regarding article 37 in case the demonstrations lead to destruction of property, injuries and death;
f.
Whether the Bill of Rights under Chapter 4 of the Constitution (in particular freedom to demonstrate) should be enjoyed by some citizens at the expense of others;
g.
Whether there is need for reasonable restrictions to protect public safety, national security, public order or the rights and freedoms of others;
h.
Whether there is need to balance the interest of protestors and the interest of the public;
i.
Whether courts and legal authorities can engage in a balancing exercise to weigh the rights of assembly, demonstration, picketing and petition against competing interests;
j.
Whether violence, destruction of property and disruption of public order can lead to legal consequences;
k.
Whether there is legal recourse for violations of the rights to assembly, demonstration, picketing and petition.
3.
The respondent filed a Notice of Preliminary Objection dated July 21, 2023 arguing that the applicant, being a Non-Governmental Organization, is not the National Government, a State organ, or County Government as provided for under the provisions of article 163(6) of the Constitution and, therefore, lacks locus standi to initiate the reference or be heard on the same as a party.
4.
That question raised in regard to locus standi of a party goes directly to the issue of whether the Court has jurisdiction to hear this matter. It is therefore imperative that this court should settle this question at the onset before moving forward with the hearing of the reference itself.","C. Analysis
18.
The court’s jurisdiction to give an advisory opinion is provided for in article 163(6) of the Constitution, which states:
“
(6)
The Supreme Court may give an advisory opinion at the request of the national government, any State organ or any county government with respect to any matter concerning county government.”
Similarly, section 13 of the Supreme Court Act, No. 7 of 2011 reads as follows:
(1)
The Court may give an advisory opinion under article 163(6) of the Constitution at the request of
a.
the national government;
b.
a State Organ; or
c.
a county government with respect to a matter concerning the county government.
Therefore, the only parties who may apply for an advisory opinion are, the National Government; a State organ; or any County Government with respect to any matter concerning county government.
19.
As submitted by the respondent’s counsel, the court has previously pronounced itself on this question in many cases. For instance, In the Matter of Interim Independent Electoral Commission, Constitutional Application No. 2 of 2011; [2011] eKLR pars.35, 36 & 83: In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion No. 2 of 2012; [2012] eKLR, pars. 7: Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) Advisory Opinion Reference No. 1 of 2017; [2020] eKLR, pars. 41 & 42: and In the Matter of the National Gender and Equality Commission Reference No. 1 of 2013; [2014] eKLR.
20.
In the case of In the Matter of Interim Independent Electoral Commission, Constitutional Application No. 2 of 2011; [2011] eKLR, this court set out the guidelines for the exercise of the its advisory-opinion jurisdiction. They are:
“
(83)
With the benefit of the submissions of learned counsel, and of the comparative assessments recorded herein, we are in a position to set out certain broad guidelines for the exercise of the Supreme Court’s Advisory-Opinion jurisdiction.
i.
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of article 163(6): it must be ‘a matter concerning county government.’ The question as to whether a matter is one ‘concerning county government’, will be determined by the court on a case-by-case basis.
ii.
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the court, either as an intervener (interested party) or as amicus curiae.
iii.
The court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may if satisfied that it is in the public interest to do so, proceed and render an Advisory Opinion.
iv.
Where a reference has been made to the court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through an adversarial court process.
21.
It is noteworthy to point out that since the issuance of the above Judgment in 2011, the Rules of this court have since been changed and now disallow even interested parties as interveners or parties in a reference matter for advisory opinion. Rules 50(1) and 51(1), (2) and (5) of Supreme Court Rules 2020 now read and state as follows:
“
50
(1)
The national government, state organ or a county government may make a request for an advisory opinion and briefly state the question upon which advice is sought.
…..
51.
(1)
A person filing a reference may propose that the courtmay consider admitting any other person to participate in the reference.
2.
Despite sub-rule (1) the courtmay on its own motion identify any other person to participate in the reference.
…..
(5)
Any application for joinder as interested party in a reference shall not be allowed.”
22.
Article 260 of the Constitution defines what a State organ is. A State organ is defined as “a commission, office, agency or other body established under the Constitution.” Suffice it to say, the applicant does not fall within any of the bodies that may approach the court for an advisory opinion. Neither has the applicant been proposed by a person who has filed a reference in accordance with rule 50 nor has the court admitted them to enjoin a filed reference. They cannot also be allowed to join as an interested party.
23.
On adopting a broader interpretation of this court’s jurisdiction, Dr. Khaminwa urged the courtnot to confine itself to the provisions of the law. He also argued that the applicant was a person therefore falling under the umbrella of the national government, State organ and/or county government since they are also made of people.
24.
In answer to this, we refer to the guidelines of constitutional interpretation as postulated under article 259(1) of the Constitution. It provides as follows:
This Constitution shall be interpreted in a manner that-
a.
promotes its purposes, values and principles;
b.
advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
c.
permits the development of the law; and
d.
contributes to good governance.
25.
This court has on a number of occasions rendered itself on what ought to be considered when interpreting the Constitution. In essence, the Constitution ought to be construed holistically and in a manner that does not destroy any other constitutional provision, that is to say, in a complementary manner. It, however, goes without saying that it would create a total state of anarchy in the judicial system if any person could approach this court for an advisory opinion based purely on the fact that they are ‘the people’ and in so doing, disregard the provisions, procedures and safeguards contained both in statute and the Constitution.
26.
Learned counsel further invited us to declare that jurisdiction can be conferred out of necessity. There is a plethora of authorities on jurisdiction. Jurisdiction flows from the Constitution, statute law or by principles laid out in judicial precedent. See In the Matter of Interim Independent Electoral Commission, (supra). In an application by the Council of Governors for an Advisory Opinion, Council of Governors v Attorney General& 7 Others, SC Reference No 2 of 2017; [2019] eKLR we were called upon to answer whether the applicant, Council of Governors, is a State Organ within the provisions of article 260 of the Constitution so as to be clothed with the locus standi to seek an advisory opinion before this court. In declining to do so, despite concerted argument by COG and Katiba Institute to liberally interpret the Constitution and exercise our discretion to render an Advisory opinion, we held as follows:
“
(55)
Hence we find that the definition of a State Organ under article 260 to include agency or other body established under this Constitution, does not cover the applicant. It is thus clear that the applicant is not a commission, office, agency or body established under the Constitution. The constituting statute is the IRA which by any definition cannot grant the applicant constitutional credentials.”
27.
In the same manner, we are not persuaded that the applicant herein has the requisite locus standi. While the High Court has unlimited original jurisdiction in criminal and civil proceedings as per article 165(3)(a) of the Constitution, the parameters of the jurisdiction of the Supreme Court, are not as unlimited and are clearly set out in article 163 of the Constitution and sections 12, 13 and 13A of the Supreme Court Act, Cap 9B of the Laws of Kenya. We cannot arrogate jurisdiction to ourselves where the same is not expressly conferred. We therefore find the applicant has no locus before this court and the reference as filed must be dismissed. As for costs, the settled principle is that they should follow the event.
D. Orders
28.
Consequently, we make the following orders:
i.
The respondent’s Notice of Preliminary Objection dated July 21, 2023 is hereby allowed.
ii.
The applicant’s Reference dated May 31, 2023 is hereby struck out and dismissed.
iii.
The applicant shall bear the costs of this reference.
Orders accordingly.",Allowed in Part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/15/eng@2024-04-12
Application E052 of 2023,Mabavu & 6 others v Bahati Properties Limited (Application E052 of 2023) [2024] KESC 8 (KLR) (12 April 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",12 April 2024,2024.0,Nairobi,Civil,"Said M. Mabavu
1st Applicant
Anna W. Dereva
2nd Applicant
Abdalla Mwachibulo
3rd Applicant
Fatuma Nchizumo
4th Applicant
Omar Mashaka
5th Applicant
Mahfudhi Mohamed Mwamtuku
6th Applicant
Rama Matano Mwarinda
7th Applicant
and
Bahati Properties Limited
Respondent",[2024] KESC 8 (KLR),,"1.
Upon reading the Originating Motion taken out by the Applicants dated 21st December 2023 and filed on 6th February 2024 pursuant to Articles 159(2)(a), (d) & (e), 163(4)(b) & (5) and 259(1) of the Constitution, Section 15B of the Supreme Court Act 2011 and Rule 33 of the Supreme Court Rules 2020 for orders that this Court; be pleased to review the Ruling of the Court of Appeal (Murgor, Laibuta & Odunga, JJ.A) delivered on 8th December 2023 declining to certify the intended appeal by the applicants to this Court from the judgment of the Court of Appeal in Civil Appeal No. 141 of 2019 as constituting a matter of general public importance; to certify the intended appeal as constituting a matter of general public importance and grant leave to the applicants to file a petition of appeal against the judgment of the Court of Appeal; and that costs of the application be provided for; and
2.
Upon perusing the grounds on the face of the application, the supporting affidavit sworn by Said M. Mabavu, on his own behalf and on behalf of the 2nd to 7th applicants, as well as their submissions filed on 6th February 2024, in which the following twelve issues arising from the decision of the Court of Appeal are raised as involving matters of general public importance:
i.
The perennial topic or irregular registration of proprietary interest at the coastal strip which has left many indigenous communities as squatters in their ancestral land resulting in historical injustices is yet to be addressed since the promulgation of the Constitution of Kenya, 2010;
ii.
Whether the applicants’ constitutional right to property in the suit property arose before the registration of the same and issuance of a lease by the colonial Government in 1914 was to the disenfranchisement of the applicants’ ancestors.
iii.
The issue of historical land injustice visited upon, not only the applicants but a majority of residents of the coastal region of Kenya by disenfranchisement of their ancestral property as indigenous people by the colonial Government;
iv.
Whether a person has a legitimate expectation that once allotted and issued with a title deed over a parcel of land, the State had powers to do so, and the person acquires property rights in the same (sic);
v.
Whether the State’s negligence in the issuance of multiple title deeds over the suit property should be visited on either of the parties, especially where none of the parties has engaged in fraudulent conduct;
vi.
Whether the State’s negligence in the issuance of multiple title deeds over the suit property should be borne by the State and if the applicants are to be compensated if the Court were to come to the conclusion that the suit property belonged to the respondent;
vii.
Whether land that was previously compulsorily acquired by the government for a particular purpose or a portion of it can be subsequently put to a different use or even allotted to private individuals for their use;
viii.
Whether private property that is acquired through compulsory acquisition and only a portion of it is put to public use, it can be found that only the portion put to public use was properly acquired;
ix.
Whether a title to land that has been acquired by the government through compulsory acquisition in public interest can still be available for renewal of lease and sale to a third party and the process to be followed when such a title is challenged;
x.
The value that members of the public should place on documents that originate from public offices and particularly how to deal with a situation where two title deeds both of which are genuinely processed and obtained from the land registry in relation to the same property;
xi.
Whether it is proper to render a community as squatters on their own property despite the fact that they are holding a title deed to the property; and
xii.
Whether or not the suit property was properly acquired by the Government, whether or not it was public land at the time of allocation to the applicants, and whether or not it was available for allocation; and
1.
Bearing in mind the following facts which precipitated this land dispute wherein the parties have competing interests over land that was previously registered as Kwale/Diani Beach Block/59 but is now known as Kwale/Diani Beach Block/149 (the suit property). On the one hand, the applicants contend that they are the rightful owners of the suit property on the basis that prior to the first registration by the British Colonial Authorities in 1914, the suit property belonged to their forefather, one Mwachimwindi Diya, who was forcefully evicted from it by the colonial government without any compensation. Given the historical injustice, they petitioned the late President Daniel Arap Moi who directed the Commissioner of Lands to allot to them the suit property which was vacant and undeveloped in 2001. On the other hand, the respondent contends that it is the rightful registered proprietor of the leasehold interest in the suit property, having bought it in 1992 from Prince Sadruddin Aga Khan, a 99-year lessee of the Government of Kenya from 1st January 1914. It was the respondent’s case that it purchased the suit property at a consideration of Kshs.11,000,000 and the lease dated 18th September 1992 was subsequently transferred to it by Prince Sadruddin Aga Khan. In the circumstances therefore, the land was not available for allocation to the applicants as claimed; and
2.
Given the competing claim over the ownership of the suit property by the applicants, the respondent filed a suit in the Environment and Land Court (ELC) at Mombasa, ELC No. 31 of 2015, against the Attorney General, the Land Registrar, Kwale, and the applicants challenging the purported allotment and subsequent
issuance of title over the suit property to the latter as illegal, fraudulent, and null and void; and
5.
Upon evaluating the two competing claims, the ELC (Omollo, J.), found in favour of the respondent and granted all the prayers sought, finding, inter alia, that Kwale/Diani Beach Block/ 59 and Kwale/Diani Beach Block/149 refer to one and the same parcel of land; that since the suit property had been leased to the respondent and there was in existence a valid lease at the time the applicants sought allotment of the suit property under the provisions of the repealed Government Lands Act, the property was not available; and therefore, the allotment to the applicants was illegal, null and void; and
6.
Dissatisfied, the applicants challenged this outcome in the Court of Appeal contending that parcel Kwale/Diani Beach Block/ 59 was compulsorily acquired by the Government in 1975 and therefore in 1992 it was not available for sale by Prince Sadruddin Aga Khan to the respondent. The appellate court (Warsame, Musinga & Murgor JJ.A), found that there was only partial acquisition of parcel Kwale/Diani Beach Block/ 59, which reduced its size from 25 acres to 23.25; and that it is the remaining portion that was given parcel No. Kwale/Diani Beach Block/149, the suit property. Moreover, they observed that ideally, the title for Kwale/Diani Beach Block /59 ought to have been cancelled, but somehow was not. Consequently, Prince Sadruddin Aga Khan remained in actual possession of the land, until he sold and transferred his leasehold interest thereto to the respondent, albeit as Kwale/Diani Beach Block/ 59. Ultimately, in dismissing the appeal, the appellate court found that neither the President of Kenya nor the Commissioner of Lands had the power to allot the suit property to the applicants; and
7.
Aggrieved once again by this determination, the applicants sought before the Court of Appeal an order for stay of execution and a certification that its intended appeal to the Supreme Court raised a matter of general public importance in terms of Article 163(4)(b) of the Constitution. The Court of Appeal in the impugned ruling rejected that argument and found instead that the questions of allocation of alienable and unalienable land together with the powers of the President of Kenya and Commissioner of Lands to allot land are not novel issues to place before the Supreme Court for determination. What was more, it found that the applicants had neither specified the elements of law that remained unsettled nor had they specified how the conclusions would impact third parties. In the end, the appellate court dismissed the application for failure to meet the threshold for certification; and
8.
Upon considering the applicants’ submissions dated 6th February 2024 where they reiterate that the issues which they intend to raise before the Supreme Court, and which we have set out in paragraph 2 above; that they, transcend the circumstances of this matter; will affect a considerable section of the populace; touch on the subject of land rights; the powers of public bodies to alienate and allocate public land; have a significant bearing on the public interest; and that the question of proof and validity of compulsory acquisition, has been the subject of conflicting decisions of the Court of Appeal. They have cited, in this regard, the decisions in Commissioner of Lands & another v. Coastal Aquaculture [1997] eKLR, and Kenya National Highway Authority v. Shalien Masood Mughal & 5 others [2017] eKLR. They urge in that context that, on the facts of this case, both superior courts below erred in finding that the government had not compulsorily acquired the suit property, hence the need for this Court to settle the opposing views expressed by the Court of Appeal on the test for compulsory acquisition. In their view, therefore, the test enunciated in Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone, SC App. No. 4 of 2012; [2013] eKLR has been met; and
9.
Noting the respondent’s grounds of opposition, replying affidavit of Sheba Mohamed, the respondent’s Company Secretary, and the submissions filed on its behalf, all dated 12th February 2024, to the effect that the Motion: raises new issues that were not raised, canvassed and determined before both superior courts below; does not set out the specific elements of general public importance; does not disclose any uncertainty on points of law that need clarification by this Court for the common good; and does not identify the lacuna in law to be filled, since the law on the questions intended to be raised is settled and clear. In any case, that the issue of partial compulsory acquisition of private property was conclusively determined by this Court in Town Council of Awendo v. Nelson Onyango & 13 others; Abdul Malik Mohamed & 178 others (Interested Parties) [2019] eKLR. Similarly, the test for proving the validity of compulsory acquisition was the subject of this Court’s judgment in Attorney General v. Zinj Limited, [2021] KESC 23 (KLR); and
10.
Guided by principles enunciated by this Court in Hermanus Phillipus Steyn (supra) and Malcolm Bell v. Daniel Toroitich Arap Moi & Another,SC Appl. No. 1 of 2013 [2013] eKLR; and","Having considered the totality of the application, affidavits, and rival arguments by the parties on both sides, we opine as follows:
i.
The issues proposed to be certified as constituting matters of general public importance revolve around the perennial subject of irregular registration of proprietary interests at the coastal strip, allocation of alienable and inalienable land, compulsory acquisition, issuance of multiple title deeds by the government over the same property and the claim by local residents of disenfranchisement of ancestral land. According to the applicants, there are conflicting decisions by the Court of Appeal on the question of the test of compulsory acquisition, which requires from this Court a final pronouncement. To begin with, this question was never raised, argued and determined by the Court of Appeal in both the appeal and the application for certification.
ii.
On the peculiar facts in the Commissioner of Lands & another v. Coastal Aquaculture (supra) and the Kenya National Highway Authority v. Shalien Masood Mughal & 5 others (supra) the Court of Appeal, respectively, merely emphasized the importance of ensuring that the procedure for compulsory acquisition is strictly complied with and declared that parties cannot challenge a process of compulsory acquisition that preceded their alleged acquisition of land. The dispute and the determination in the two decisions are distinguishable and we are unable to see the apparent conflict between them.
iii.
Moreover, the question of reversionary interests in or pre-emptive rights over compulsorily acquired land have long been settled by this Court in Town Council of Awendo v. Nelson O Onyango (supra), just as has been the question of the process of compulsory acquisition as affirmed by this Court in Attorney General v. Zinj Limited (supra).
iv.
Consequently, we find that the applicants have not satisfied the now firmly established test for certification under Article 163(4)(b) of the Constitution. We are also not persuaded that there are conflicting decisions that deserve the Supreme Court’s further or final pronouncement.
v.
Like the appellate court, we find that this is a spirited and ingenious attempt by the applicants to have a second bite at the cherry by seeking to revisit factual findings and conclusions already resolved by the superior courts below. Mere apprehension of miscarriage of justice and determinations of fact in contests between parties are not, by themselves, a basis for granting certification to appeal to the Supreme Court.
vi.
Ultimately, we find no fault in the Court of Appeal’s conclusion that the proposed issues do not meet the threshold set out in Hermanus Phillipus Steyn (supra) and Malcolm Bell (supra).
vii.
As costs are discretionary and follow the event, the applicants shall bear the costs of this application.
12.
Accordingly, we make the following orders:
i. The Originating Motion dated 21st December 2023 and filed on 6th February 2024 is hereby dismissed.
ii.
The Ruling of the Court of Appeal delivered on 8th December 2023 denying leave to appeal to this Court is hereby upheld.
iii.
The costs of this application shall be borne by the applicants.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/8/eng@2024-04-12
Petition (Application) E033 of 2023,Sehmi & another v Tarabana Company Limited & 5 others; Law Society of Kenya (Proposed Interested Party) (Petition (Application) E033 of 2023) [2024] KESC 13 (KLR) (12 April 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, SC Wanjala, I Lenaola, W Ouko",12 April 2024,2024.0,Nairobi,Civil,Sehmi & another v Tarabana Company Limited & 5 others; Law Society of Kenya,[2024] KESC 13 (KLR),,"Upon perusing the notice of motion dated January 22, 2024, and filed on January 23, 2024, by the applicant pursuant to articles 50(1), 159 and 163 of the Constitution, sections 3, 3A, 11A and 23(2B) of the Supreme Court Act 2011, rules 2, 3, 12, 13, 18, 22, 24, 31 and 64 of the Supreme Court Rules 2020, and the Supreme Court (General) Practice Directions 2020; seeking leave for admission as an interested party; thereafter, an opportunity to file a response and submissions to the petition; and no order as to costs; and
2.
Upon reading the grounds on the face of the application, and supporting affidavit sworn by Florence W. Muturi, the Chief Executive Officer of the Law Society of Kenya, on January 16, 2024, wherein she avers that, the applicant’s prayers are in line with its statutory mandate, being a representative of advocates tasked with overseeing due diligence in the transfer of property; the applicant intends to assist the court in clarifying the uncertainty in case law, regarding inter-alia applicability of the mirror principle, curtain principle, indemnity principle, the principle of indefeasibility of title under the Land Registration Act 2012, and its predecessor, the Registered Land Act, and the common law principle of Nemo dat quod non habet; and
3.
Upon further considering the applicant’s additional grounds to the effect that, in line with its objectives under section 4 of the Law Society of Kenya Act, it seeks to assist the court in settling the issues in question, and in so doing, provide guidance to the courts, practitioners, and the general public; protect the Constitution, advance the rule of law and the administration of justice. In addition, the applicant avers that it has met the principles for admission as an interested party established by this court in Francis Karioki Muruatetu & another v Republic & 5 Others, SC Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015 [2016] eKLR (the Muruatetu Case); and Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, SC Petition No. 12 of 2013; [2015] eKLR; and
4.
Upon considering the applicant’s submissions dated January 22, 2024and filed on January 23, 2024, wherein the applicant reiterates its grounds in support; and further submits that it has a non-partisan role in the proceedings, and is apprehensive that the parties herein will inadequately articulate and canvass the delineated issues affecting its members’ practice, within the limited confines of their respective interests; and
5.
Upon considering the 1st and 2nd appellants’ grounds of opposition and written submissions both dated January 31, 2024, and filed on February 1, 2024, to the effect that the applicant has failed to file a response to the appeal before seeking leave to be joined as an interested party in contravention of rule 24(1) of the Supreme Court Rules; disclose its case, grounds, or file draft submissions it intends to advance before the court in contravention of rule 24(2), indicate the specific relevance it would add to the proceedings, and substantial departure (if any) from arguments advanced by the parties; and, demonstrate any personal interest or proximate stake in the appeal as well as the prejudice it would suffer if the application is denied. Ultimately, it is urged that the applicant has failed to meet the threshold for admission as an interested party established in Attorney General v David Ndii & 73 Others (Petition 12 (E016) of 2020) [2021] KESC 17 (KLR); and
6.
Further noting that the 3rd, 5th and 6th respondents vide their grounds of opposition and written submissions, both dated 31st January 2024, and filed on 1st February 2024, opposed the Motion on similar grounds as the appellants, and further submit that the mere claim that one seeks to protect the public interest, is an insufficient ground for joinder of an interested party; and
7.
Upon reading the applicant’s further affidavit sworn by Florence W. Muturi on February 5, 2024 in response to the appellants’ and respondents’ arguments, in which it contends that, its factual depositions have not been controverted by the objectors; the assertion that filing a response is a prerequisite to an application for joinder as an interested party is a gross misinterpretation of the Supreme Court Rules; filing a response only accrues as of right to the respondents, therefore any other party must seek leave of the court before lodging any pleading; it has clearly identified its stake in the proceedings, and at this juncture, it cannot adequately elaborate its departure from the parties’ submissions to the appeal as the same are yet to be filed; and
8.
Having read and considered the applicant’s supplementary submissions dated February 7, 2024 and filed on even date, wherein the applicant restates its averments and further urges that; it should be allowed to prosecute its cause taking into account its role as an interested party that was not involved in the proceedings before the superior courts below; and the claim that it seeks to establish a new case is unsubstantiated; and
9.
Bearing in mind that the Court of Appeal in its ruling dated November 10, 2023, certifying the appeal as one involving a matter of general public importance, identified three issues, viz: legitimate expectation in the renewal of leases; whether an irregular allocation can create a genuine title; and whether anV*innocent purchaser’s title can be challenged; and","We now determine as follows:
i.
Having carefully appraised the application, the responses thereto and submissions by the parties, and guided by the provisions of rule 24 of the Supreme Court Rules 2020, and the principles established by this court in the Muruatetu case, we find that the issues highlighted by the applicant have been largely addressed by the parties to the appeal;
ii.
Specifically, the applicant has neither identified any personal interest or stake that is clearly identifiable and proximate, nor the prejudice it is likely to suffer in case of non-joinder;
iii.
Furthermore, the applicant has not demonstrated the relevance of its submissions to the issues of general public importance identified by the Court of Appeal;
iv.
In any event, the applicant’s submissions go beyond the delineated questions. As such, we do not see any basis upon which the applicant can be admitted as an interested party; and
v.
While costs should generally follow the event in view of this court’s decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate of & 4 Others, SC Petition No. 4 of 2012; [2013] eKLR, we find that in these circumstances, the appropriate order is for each party to bear their own costs. We recognize that the applicant was motivated by its statutory mandate, save that the issues delineated by the Court of Appeal are well covered by the primary parties.
12.
Consequently and for the aforestated reasons, we make the following orders:
a.
The notice of motion dated January 22, 2024 and lodged on January 23, 2024, is hereby dismissed;
b.
Each party shall bear its own costs.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/13/eng@2024-04-12
Petition (Application) E033 of 2023,Sehmi & another v Tarabana Company Limited & 5 others; Mbugua Ng’ang’a & Co. Advocates (Applicant) (Petition (Application) E033 of 2023) [2024] KESC 9 (KLR) (12 April 2024) (Ruling),Ruling,Supreme Court,Supreme Court,SC Wanjala,12 April 2024,2024.0,Nairobi,Civil,Sehmi & another v Tarabana Company Limited & 5 others; Mbugua Ng’ang’a & Co. Advocates,[2024] KESC 9 (KLR),,"Uponperusing the Motion dated 31st January 2024 and lodged on 8th February 2024 brought pursuant to Rule 18 (6) and (7) of the Supreme Court Rules, 2020 seeking the following orders, that: the firm of Mbugua Ng’ang’a & Company Advocates (hereinafter, ‘the firm’) be granted leave to cease from acting for Rospatech Limited; and costs of this application be provided; and
2.
Uponreading the affidavit in support of the Motion sworn by George Ng’ang’a Mbugua, Advocate on 31st January 2024, wherein, he depones that his client, the 2nd respondent herein, has ceased contact and that despite several reminders, has failed to give him proper instructions and is therefore unable to proceed with the Petition; and
3.
Uponconsidering the applicant’s written submissions dated 7th February 2024, and filed on 8th February 2024, as well as the Affidavit of Service sworn on 13th February 2024, in which Counsel submits that the 2nd respondent was served with the present application and its attendant directions electronically on 12th February 2024, through its Director Martin Njuguna on WhatsApp via his last known telephone number and email address, pursuant to Section 16 of the Supreme Court Rules 2020; and
4.
Bearing in mindthat the application was served upon all other parties and is uncontested, and further considering that Section 23(2)(g) of the Supreme Court Act, 2011 grants a single Judge jurisdiction to determine the application in the following terms:
23.
Exercise of powers of the Court
(2)
A single judge may hear and determine an application for the following preliminary procedures—
(g)
withdrawal of an advocate to cease acting for a party;","I opinethat, a court of law cannot compel counsel to continue acting for a party, who has lost touch or interest in the matter for whatever reason.
6.
Accordingly, I now make the following Orders:
a.
The Notice of Motion dated 31st January 2024, and lodged on 8th February 2024, is hereby allowed.
b.
Consequently, the Firm of M/s Mbugua Ng’ang’a & Co. Advocates, is hereby granted leave to cease acting for the 2nd respondent;
c.
The costs of this application shall be borne by the 2nd respondent.
It is so Ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/9/eng@2024-04-12
Application E048 of 2023,"Sombo & others & 4 others (Suing on behalf of 15,000 individuals of Amwezi and Mrima Clans of the Duruma Community) v Nyari Investments (1998) Limited & 5 others (Application E048 of 2023) [2024] KESC 14 (KLR) (Civ) (12 April 2024) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, I Lenaola, W Ouko",12 April 2024,2024.0,Nairobi,Civil,"Sombo & others & 4 others (Suing on behalf of 15,000 individuals of Amwezi and Mrima Clans of the Duruma Community) v Nyari Investments (1998) Limited & 5 others (",[2024] KESC 14 (KLR),,"Upon perusing the Originating Motion by the applicant dated 1st December, 2023 and filed on 8th December, 2023 pursuant to Articles 159, 163(4)(b) and (5) of the Constitution, Sections 3A, 15, 15B and 21 of the Supreme Court Act, 2011 and Rules 33 (2) and (3) of the Supreme Court Rules, 2020 seeking inter alia: a review of the Court of Appeal decision declining to grant certification of the intended appeal as a matter of general public importance, and leave to appeal to the Supreme Court against the judgement of the Court of Appeal.
2.
Upon perusing the proposed issues for consideration, the grounds on the face of the application, supporting affidavit sworn by Maina Njanga, counsel for the applicants, and written submissions all dated 1st December 2023 and filed on 8th December 2023 wherein he submits that the intended appeal raises issues of general public importance and in particular;
a.
Whether the setting apart of the suit property, formerly a trust land under the repealed Constitution vested in the 3rd respondent to hold in trust for the communities ordinarily residing in the area, was done in accordance with section 118 of the repealed Constitution and whether, a community land under the said Constitution would be set apart without concurrence of the community and the local county council as trustee of the said land.
b.
Whether a public interest suit such as the instant one where the applicants have been found by the superior court below to have locus standi should be dismissed on the account that the applicants did not seek written authority of all the community members represented pursuant to Order 1 Rule 13 of the Civil Procedure Rules and whether such requirement runs against Article 159 of the Constitution as read with Article 258 thereby depriving a community its proprietary rights in community land in the face of injustice.
c.
Whether trust land may be set apart in favour of a private company for private use and whether the private company is “which shares are held by on behalf of the Government of Kenya” under Section 118 (2) of the repealed Constitution and the information on the beneficial ownership of the shares is solely within the knowledge of the government officer (s), are the applicants still duty bound bear the burden of proof under Section 107 of the Evidence Act as opposed to shifting the burden to the Respondents under Section 112 of the Evidence Act?
d.
Whether decision of the Court of Appeal in the instant case contradicts another decision of the same Court of Appeal, Funzi Development Limited v. County Council of Kwale [2014] eKLR on the import of Section 2 (d) of the Registered Land Act (repealed) which provided that the Act is applicable to “all land from which time to time is set apart under Section 117 and 118 of the Constitution” and there is need for the Supreme Court to provide guide for the courts to avoid inconsistencies, uncertainty and conflicting decisions in the superior courts below on the issue.
3.
The applicant reiterates that there is contradiction as to whether a litigant can have locus standi to bring a suit in public interest and at the same time not have the same on account of lack of authority of the public or the group he or she is representing; the process of setting apart contemplated in Section 118 of the repealed constitution allowed setting apart to be made to a private company registered in Kenya and ‘in which shares are held on behalf of the Government of Kenya’, the burden of proof therefore shifted to the Respondents to prove that their shareholding of 1st Respondent is solely with the government of Kenya. Further, that under Section 2 of the Registered Land Act (RLA) the title to the 1st Respondent ought to have been issued under RLA but was issued under RTA, the Court of appeal in upholding the indefeasibility of the title took a different approach from that taken by the same court (differently constituted) in Funzi Development Limited vs. County Council of Kwale Civ. Appeal No. 252 of 2005 [2014] eKLR. Lastly, that the Supreme Court ought to be given an opportunity to determine what ‘consultation’ means in setting apart of vast community land.
4.
Upon perusing the 2nd Respondent’s submissions dated 1st February 2024 and filed on 5th February 2024 wherein it is submitted that the issues herein are private and do not extend into the arena of general public importance; the applicants have failed to show that the issues they intend to raise relate to an uncertain area of law emanating from contradictory precedents thus requiring the Supreme Court to resolve the established uncertainty; the grounds and facts cited in the application were not pleaded before the trial court and the Court of Appeal. The issue before the Court of Appeal neither concerned the application nor the interpretation of the Constitution. The application is therefore without merit as it purports to, for the first time, mutate into a constitutional petition.
5.
The 2nd Respondent further submits that the applicants’ failure to file the application for certification in the Court of Appeal within the time prescribed by Rule 42 of the Court of Appeal Rules and having not sought extension as prescribed under Rule 4 of the Court of Appeal Rules, cannot now seek review of the Court of Appeal decision. Lastly, that the advocate for the applicant had sworn an affidavit on contested matters on behalf of the applicants and as such the affidavit is of no probative value. The 2nd Respondent cites this Court’s decisions in Kenya Commercial Bank Limited vs. Muiri Coffee Estate Limited & Another SC Appl. No. 42 of 2014 as consolidated with SC Appl. No. 43 of 2014 [2016] eKLR and National Bank of Kenya Limited (As the successor in business of Kenya National Corporation Limited) & Another vs. Basil Criticos (Application 14 (E023) of 2022) [2023] KESC 60 (KLR) for the view that it is not sufficient for the applicant to state that the Court of Appeal misapplied the law, the applicant has to demonstrate the different determinations by different courts; Peter Oduor Ngoge vs. Francis Ole Kaparo & 5 Others [2012] eKLR to urge that a party ought to be bound by its own pleadings.
6.
Upon perusing the 6th respondent’s grounds of opposition dated 15th January 2024 and filed of 12th February 2023, and written submissions dated 30th January 2024 and filed on 12th February 2024 raising similar submissions as that of the 2nd Respondent and further submitting that the intended appeal focuses narrowly on the interests of the applicants as a specific group namely the Amwezi and Mrima clans and fails to exhibit any public element with significant public implication. The applicants have violated the procedural requirements for representative suits by failing to demonstrate their lawful authority to institute and prosecute the suit and the present motion on behalf of the purported 15,000 individual members of the Amwezi and Mrima Clans. A party is bound by its pleadings and no party ought to be allowed to introduce a new element to the dispute especially at an appellate stage. In this regard the 6th Respondent urged the court to be guided by the case in Raila Amolo Odinga & Another vs. Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR, and Peter Oduor Ngoge vs. Hon. Francis Ole Kaparo [2012] eKLR. The 6th Respondent lastly urged the court to find the applicants accountable for the costs incurred during these proceedings citing the High Court’s determination in Republic vs. Rosemary Wairimu Munene, Ex-parte Applicant Ihururu Dairy Farmers Cooperative Society Ltd Judicial Review Appl. No. 6 of 2014
7.
Bearing in mind Article 163 (5) of the Constitution, Section 15B of the Supreme Court Act and Rule 33 (1) and (2) of the Supreme Court Rules, 2020 which grants this Court jurisdiction to review the Court of Appeal’s Certification, and lack thereof, as one of general public importance; and this Court’s guiding principles on certification of a matter as one involving general public importance set out in Hermanus Phillipus Steyn vs. Giovanni- Ruscone Sup. Application No. 4 of 2013 [2013] eKLR and the additional guidelines in Malcom Bell vs. Daniel Toroitich Arap Moi & Another, SC Application No. 1 of 2013; [2013] eKLR","We have considered the totality of the application, and submissions put forth, we opine as follows:
i.
The Court of Appeal dismissed the application for certification Upon the finding that the same was filed out of time. In its determination the Court held as follows;
“The Decision sought to be appealed was delivered by this Court on the 14th April 2023. The application is dated 23rd May 2023, which was way beyond the prescribed period to formally seek certification. The application is therefore incompetent having being filed out of time, and the applicants having failed to apply for extension of time under Rule 4 of this Court’s Rules.”
With this finding by the Court of Appeal, this Court cannot move to review an application determined incompetent for want of procedure. We have held in Daniel Kimani Njihia v Francis Mwangi Kimani & another SC. Appl. No. 3 of 2014 [2015] eKLR that not all decisions of the Court of Appeal are subject to appeal before this Court. One category of decisions we perceive as falling outside the set of questions appealable to this Court, is the discretionary pronouncements appurtenant to the appellate court’s mandate
ii.
Should the Court however have sought to review the application it would have arrived at the finding that the claim by the applicants in the trial Court was presented as a representative suit as opposed to public interest litigation. The Court of Appeal admonished the applicant for seeking to sneak in the representation at the appellate stage; one of the witnesses in the High Court denied being represented by the applicants. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others SC. Appl. No. 29 of 2014 [2014] eKLR Njoki SCJ in her concurring opinion held that evaluation of locus (of a party acting in public interest) ought to be based Upon the constitutional considerations of capacity (Articles 3, 22 and 258), the nature of the suit and the enforceability of the Orders sought. The distinction of who has locus to bring a suit in public interest has therefore been ascertained.
iii.
The suit in the High Court relates to the procedure in setting apart of Trust land which has clear provisions in Sections 117 and 118 of the repealed Constitution and the Trust Land Act. The applicant has not highlighted instances of inconsistencies in the interpretation of the procedure by the Superior Courts. The case in Funzi Limited relied Upon by the applicant is distinguishable in various respects; first the Court of Appeal and the Supreme Court in the case arrived at a finding that the suit land therein was not Trust land. The mode of setting apart relied Upon was within the provisions of Section 117 of the repealed Constitution; which is not the case herein; the provisions relied Upon in setting apart fell within Section 118 of the repealed Constitution.
iv.
As pertains application of Section 107 and 112 of the Evidence Act. The Court of Appeal considered this submission and concluded that the applicant was bound by its pleadings. The application of Section 112 of the Evidence Act is not a novel issue and has been adequately explained by this Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others Petition No. 2B of 2014 [2014] eKLR.
9.
On costs, award of the same is discretionary and follows the principle set out by this Court in Jasbir Singh Rai & 3 other v. Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. Given the nature of the dispute and the industry afforded by the parties we find this a proper case to issue costs of the application in favour of the 2nd and 6th Respondents, as the only ones who responded to the application.
10.
For the aforestated reasons we make the following orders:
i.
The Originating motion dated 1st December 2023 is hereby dismissed.
ii.
Costs of the application awarded to the 2nd and 6th Respondents.
11.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/14/eng@2024-04-12
Petition (Application) E015 of 2023,County Assembly of Migori v Aluochier & 2 others (Petition (Application) E015 of 2023) [2024] KESC 7 (KLR) (Civ) (15 March 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",15 March 2024,2024.0,Nairobi,Civil,County Assembly of Migori v Aluochier & 2 others,[2024] KESC 7 (KLR),,"Before the Court are two distinct yet interconnected Motions brought by the parties for determination. The first is by the appellant, County Assembly of Migori, seeking review and setting aside of the ruling and order of the Supreme Court (Koome, CJ & P, Ibrahim, Wanjala, Lenaola & Ouko, SCJ) dated 27th October 2023. The second is by the 3rd respondent, Charles Owino Likowa, seeking orders to keep in abeyance the hearing and determination of the Motion dated 1st November 2023; and
2.
Upon perusing the Motion dated 1st November 2023 premised on Articles 163 (4) (a) and 159 (2)(d) of the Constitution, Sections 3, 3A, 15A, 21 (4), 21A, and 23 (2B) (d) of the Supreme Court Act, 2011, Rules 3(1), (2) (3) (5), 28 (5) and 31 of the Supreme Court Rules, 2020 seeking review and setting aside of this Court’s ruling and order striking out the petition as alluded to herein above; and
3.
Upon considering the grounds in support of the Motion and the averments contained in the supporting affidavit sworn by Hon. Edward Ouma Ooro, a member of the County Assembly of Migori and the Leader of the Majority Party, Orange Democratic Party, wherein he inter alia contends that; there exists an error apparent on the face of the record of proceedings to warrant review, variation and setting aside the order striking out the petition dated 12th June 2023; the appellant was never heard by the Court as required under Section 23(2B) (d) of the Supreme Court Act; the Court struck out the petition suo moto without any challenge as to the competence of the petition from any party; the ruling and order striking out the petition was as a result of misrepresentation of facts on the part of the Court that the petition was premature; the petition, the notice of appeal were properly lodged without the reasons of the Court of Appeal judgment as the same had not yet been given; the omission to include reasons of the Court of Appeal judgment was not to be blamed on the appellant to warrant striking out its petition; the Court has jurisdiction to review any of its judgments, ruling or orders in exceptional circumstance to meet the ends of justice; and
4.
Noting the appellant’s submissions dated 1st November 2023 and rejoinder submissions dated 22nd November 2023 where it reiterates the contents of its supporting affidavit and further submits that; the petition was competent as it was lodged as per the rules; there exists exceptional circumstances and an error apparent on the face of the record to warrant review, variation and setting aside the order striking out of the appeal dated 12th June 2023; in formulating the appeal, the appeal was filed on a provisional basis pending the issuances of reasons by the Court of Appeal; striking out of the appeal and leaving the notice of appeal, record of appeal, the appellant’s submissions and responses by the respondents creates confusion whether the same was summarily rejected; and
5.
Further Noting the 1st respondent’s response dated 2nd November 2o23 in support of the Motion wherein he urges that; the petition and the cross-appeal ought not to have been struck out; the Court should be consistent in its determinations; every person has a right to a fair and public hearing and conversely the Court has a duty to guarantee the right to a fair hearing; if the Court is unwilling to grant parties fair hearing, the parties can opt out of the system and refer the matter to an arbitral tribunal and the Court should promote ADR; and
6.
Also Noting the 2nd respondent’s replying affidavit sworn by Vincencia Awino Kionge, the Clerk County Assembly of Migori, in support of the Motion, wherein she faults the Court for striking out the petition suo moto; challenges the cross-appeal and the supplementary record of appeal for introducing new evidence before this Court without an application or order allowing such an action; avers that the petition was struck out without breach of any substantive or procedural laws by the appellant; that no law imposes on any person who wishes to appeal against a decision of the Court of Appeal to wait for and include reasons for the judgment in the record of appeal; the appellant waited for reasons for the Judgment of the Court of Appeal for 4 months before instituting the appeal; the rules and practice directions impose stringent timelines which if not complied with, a prospective appellant stands a risk of being locked out of his appeal; and
7.
Further Noting the 2nd respondent’s submissions dated 14th November 2023 wherein he reiterates the contents of the replying affidavit and further submits that; the Court has jurisdiction to review and/or set aside its own decisions in exceptional circumstances as per Rule 28 (5) of the Supreme Court Rules, 2020; even in the absence of reasons for the judgment of the Court of Appeal, it was still possible for the appellant to identify constitutional questions to be put to the Court for determination as was held by this Court in Richard Nyagaka Tongi v Chris Munga N Bichage & 2 others SC, Petition No 17 of 2014, [2015] eKLR; in its ruling of 27th October 2023, the Court departed from the precedent set in Richard Nyagaka Tongi v Chris Munga N Bichage & 2 others ( supra); striking out the petition and any other pleading should only be resorted to in the clearest of cases; the appellant has been deprived of the right to appeal as well as the right to a fair hearing; and
8.
Also Noting the 3rd respondent’s replying affidavit in support of the Motion sworn by Charles Owino Likowa, the Speaker of Migori County wherein he avers that; in the case of Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others, SC Civil Application No. 35 of 2014[2015] eKLR this Court held that reasons are not mandatory for lodging a further appeal to the Court; the decision the appellant seeks to review has sent the signal that filing an appeal without full text of the appellate court judgment is fatal to such as an appeal; the inconsistency in the decisions of the Court does not promote the principle under Article 163 (7) of the Constitution; striking out of the petition is likely to lead to unnecessary delay in determining the real dispute between the parties; and
9.
Furthermore Noting the 3rd respondent’s submissions dated 14th November 2023 wherein herein he reiterates the contents of his replying affidavit and further submits that; vide a ruling on 27th October 2023, this Court struck out the appellant’s petition in violation of the right of access to justice under Article 48 of the Constitution and Section 3 (e) of the Supreme Court Act; the Court’s suo moto striking out the petition was an oversight and a manifest error apparent on the record; in line with the reasoning adopted by this Court in Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others( supra) the petition was properly lodged, therefore the Court ought to consider the appeal and render itself on all the substantive issues raised; it is in the interest of justice that the parties to a dispute are accorded a fair hearing; and
10.
Taking Into Account the 3rd respondent’s Motion dated 24th November 2023 brought under Articles 163 (4) (a), 25 (c), 50 (1), 159 (2) (d) of the Constitution, Sections 3, 3A, and 21 (2) of the Supreme Court Act, 2011 and Rules 3(1), (2), (4) (5), 31 and 32 of the Supreme Court Rules, 2020 seeking orders that the Court ought to keep in abeyance and withhold the hearing and determination of the Motion dated 1st November 2023 and leave to file its supplementary record to include reasons for the judgment of the Court of Appeal when given; and
11.
Considering the grounds in support of the application and the averments contained in the supporting affidavit sworn by Charles Owino Likowa, the Speaker County Assembly of Migori wherein he contends that; the Court of Appeal was yet to give reasons for its judgment dated 26th May 2023; the time to lodge the appeal started running immediately after the judgment; it is not a mandatory requirement to include reasons for the judgment when lodging an appeal; there is need for the Court to settle the issue of validity of such an appeal; being the apex court, the Court ought to frown from deciding disputes on technicalities without hearing parties on merit; and
12.
Also Considering the 3rd respondent’s submissions dated 24th November 2023 and rejoinder submissions dated 3rd January 2023 wherein he reiterates the contents of his grounds in support of his Motion and supporting affidavit and further submits that; the jurisdiction of the Court is invoked and proceedings commenced, first under Rule 36 of the Supreme Court Rules, by filing a notice of appeal within fourteen days from the date of the judgment or ruling; a notice of appeal is a primary document to be filed whether or not the subject matter under appeal is that which requires leave; notice of appeal is a jurisdictional pre- requisite as was held by this Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Appl. No. 16 of 2014 [2014] eKLR; and
13.
Further Noting the 1st respondent’s response dated 26th November 2023 where he states that; in striking out the petition, the Court acted outside the law and without legal foundation denying the appellant the right to fair hearing under Article 50 (1) of the Constitution; he is apprehensive that the Court may decline to hear the Motion dated 1st November 2023 due to the absence of reasons for the judgment of the Court of Appeal; the Motion dated 1st November 2023 should be held in abeyance; parties be given leave to file as part of the supplementary record, the reasons for the judgment of the Court of Appeal; the Court contravened Article 27 (1) of the Constitution by striking out the appeal in this instance while in the past it upheld such appeals; and
14.
Also Noting the appellant’s replying affidavit sworn by Edward Ouma Ooro, the Majority Party Leader Of the County Assembly of Migori, and submissions dated 4th December 2024 wherein it reiterates its averments above and further add that the Court placed a heavy premium on the yet-to-be-delivered reasons for the judgment of the Court Appeal in striking out the appeal; it is important to stay in abeyance the Motion dated 1st November 2023 pending the reasons for judgment of the Court of Appeal; and","Having considered the applications, responses, and submissions before us, we now opine as follows:
i.
This Court’s power to review its own decision is well settled in the cases of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition (App) No 4 of 2012; [2013] eKLR and Fredrick Otieno Outa v Jared Odoyo Okello & 3 others; SC Petition No 6 of 2014, [2017] eKLR wherein we found that, as a general rule, the Supreme Court has neither jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner contemplated by Section 21(A) of the Supreme Court Act, that is;
a.
the judgment, ruling, or order, is obtained, by fraud or deceit;
b.
the judgment, ruling, or order, is a nullity, such as, when the Court itself was not competent;
c.
the Court was misled into giving judgment, ruling, or order, under a mistaken belief that the parties had consented thereto;
d.
the judgment or ruling was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.
ii.
Applying the above principles to the instant case, it is our view that the appellant has not attempted to demonstrate that the impugned ruling was obtained by fraud or deceit. The appellant has also failed to demonstrate that the ruling was a nullity as it was rendered on the basis of a repealed law, or that the Court itself was not competent. It is in addition clear from the appellant’s case before us that it did not prove that the Court was misled into giving the ruling under the mistaken belief that the parties had consented to such an order/ruling.
iii.
Consequently, it is our considered view that the Motion dated 1st November 2023 does not fall within the parameters enunciated in Fredrick Otieno Outa's case (supra) and therefore the Motion is one for dismissal for those reasons alone subject to what we shall state below.
iv.
What then should we find on the contention that this Court has ignored its previous decisions on the question whether reasons for the decision being challenged ought to be provided before an appeal can be properly lodged before the Court and that in striking out the appeal, parties were denied the right to fair hearing and access to justice? Specifically, do the Fahim Yasin Twaha case (supra) and Richard Nyagaka Tong’i case (supra) decisions bind us and should we apply them as submitted by the parties? It must be understood from the outset that this Court is not bound by its previous decisions as is the law under Article 163(7) of the Constitution. Nevertheless, we recognize that the maintaining of consistent decisions is the cornerstone of any judicial system.
v.
It should also be noted that the law/rules applicable at the time of rendering the decisions in Fahim Yasin Twaha case (supra) and Richard Nyagaka Tong’i case (supra) was the Supreme Court Rules, 2012 which provided as follows:
“
For purposes of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub-rule (3) and shall further contain the following documents relating to the appeal in the first appellate court—
a.
the certificate, if any, certifying that the matter is of general public importance;
b.
the memorandum of appeal;
c.
the record of proceedings; and
d.
the certified decree or order”.
vi.
Given the provisions of the law/rules at that time, the decisions in Fahim Yasin Twaha case (supra) and Richard Nyagaka Tong’i case (supra) were correct that it was not mandatory to include reasons for judgment in the record of appeal.
vii.
However, the Supreme Court Rules, 2020, which amended the 2012 Rules, made it mandatory for the judgment/ruling of the Court of Appeal to be included in the record of appeal. Rule 40 (1) of the Supreme Court Rules, 2020 provides as follows:
“
(1)
For the purpose of instituting an appeal from a Court of Appeal decision, the record of appeal shall entail—
a.
a certificate, if any, certifying the matter as of general public importance;
b.
the judgment or ruling of the Court of Appeal being appealed from;
c.
a judgment or ruling of the High Court or a court of equal status; and
d.
the relevant pleadings required to determine the appeal.”
viii.
Therefore, in accordance with the provisions of Rule 40 (1) of the Supreme Court Rules, 2020 this Court in Jimi Wanjigi v Chebukati & 2 others (SC, Application 6 (E012) of 2022) [2022] KESC 40 (KLR) and in our Ruling in the instant matter delivered on 27th October 2023, found it mandatory to include reasons for the judgment of the Court of Appeal for an appeal to be deemed to be properly lodged.
ix.
Consequently, we emphasize that, only by looking to the reasons given by the appellate court can this Court properly interrogate its jurisdiction to hear and determine any appeal before it. Without such reasons, the court would be blindly acting on interlocutory applications such as the ones filed by parties in the present case. In the circumstances, and bearing in mind that no reasons for the judgment of the Court of Appeal have been availed to us, we are constrained to dismiss the Motion dated 1st November 2023.
x.
From the foregoing, it is important for any party approaching the Court to do so accordance with Rule 40 (1) of the Supreme Court Rules, 2020 and to be conversant with jurisprudential developments in the Court. In any case, a party is not barred from approaching the Court once the Court of Appeal has availed the reasons for the judgment the party seeks to appeal against.
xi.
In any event, once the petition of appeal and the cross-appeal in the instant matter were struck out, all subsequent pleadings lack a basis to stand on.
xii.
From the foregoing and having dismissed the Motion dated 1st November 2023, it, therefore, follows that the Motion dated 24th November 2023 seeking a stay or abeyance of the latter and leave to file a supplementary record of appeal cannot stand and, is also dismissed.
xiii.
On costs, this Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 others, SC. Petition No. 4 of 2012; [2013] eKLR settled that costs follow the event and that the Court may in appropriate cases exercise discretion and decide otherwise. Given that the Court has dismissed both applications before it, we find it judicious for each party to bear its costs.
16.
Accordingly, we make the following Orders:
a.
The Notice of Motion dated 1st November 2023 is hereby dismissed.
b.
The Notice of Motion dated 24th November 2023 is hereby dismissed.
c.
Each party shall bear its costs.
17.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/7/eng@2024-03-15
Petition (Application) 12 (E014) of 2022,Barclays Bank of Kenya Limited (Now ABSA Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayer’s Office); Kenya Bankers Association & another (Interested Parties) (Petition (Application) 12 (E014) of 2022) [2024] KESC 6 (KLR) (1 March 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",1 March 2024,2024.0,Nairobi,Civil,Barclays Bank of Kenya Limited (Now ABSA Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayer’s Office); Kenya Bankers Association & another (Interested Parties),[2024] KESC 6 (KLR),,"Upon perusing the 2nd Interested Party’s (the applicant) Motion dated 19th October 2023 and filed on 23rd October 2023, brought pursuant to Section 3A of the Supreme Court Act and Rules 3 (5) and 17 (1) of the Supreme Court Rules, 2020 seeking leave to file a supplementary affidavit in response to the respondent’s replying affidavit sworn by Phillip Munyao on 9th November 2022; in the alternative, to expunge paragraphs 26 to 33 and 47 of the respondent’s said affidavit; and costs; and
2.
Upon considering the applicant’s grounds on the face of the application and supporting affidavit sworn by Shafi Shaikh on 19th October 2023, wherein the applicant contends that; upon its joinder as an interested party, it filed a replying affidavit sworn by Shafi Shaikh on 19th October 2022 in response to the petition (the applicant’s affidavit); in response to this affidavit, the respondent filed its replying affidavit sworn by Philip Munyao on 9th November 2022 (the respondent’s affidavit); the respondent’s affidavit, particularly at paragraphs 26 to 33 and 47, pleads new, factually incorrect and prejudicial allegations not deponed in the applicant’s affidavit or by any party before this Court or the superior courts below; and
3.
Upon further considering the applicant’s additional grounds to the effect that, the new and factually incorrect statements include, the alleged use and sub- license of the applicant’s proprietary software by the petitioner or other banks in Kenya, and tax evasion on the part of the applicant; grant of leave will uphold the applicant’s rights under Article 50(1) of the Constitution; the Court has the discretion and jurisdiction to grant the orders sought; and no prejudice will be suffered by the respondent; the applicant is not guilty of laches because though desirous of moving the Court for leave in 2022, on 28th November 2022, it was directed by the Deputy Registrar of the Court that the Court would first deal with the respondent’s application dated 25th November 2022; and subsequently, applications raising the same subject matter were filed by the parties herein; and
4.
Further considering the applicant’s submissions dated 19th October 2023, and supplementary submissions dated 5th November 2023, to the effect that, this Court has inherent and express jurisdiction to grant leave to file further pleadings including a supplementary affidavit under Section 3A of the Supreme Court Act and Rules 3(5) and 17(1) of the Court’s Rules respectively; this jurisdiction was upheld by this Court in Fredrick Otieno Outa v. Jared Odoyo Okello & 3 Others [2017] eKLR; Stephen Maina Githiga & 5 Others v. Kiru Tea Factory Company Limited [2020] eKLR and Katiba Institute v. AG, PSC & Others [2020] eKLR; the applicant having been enjoined in the appeal has an identifiable stake and duty to provide the Court with an understanding of the intricate terms delineated in the agreement between itself and the petitioner;
5.
Having read and considered the respondent’s replying affidavit sworn by Philip Munyao on 30th October 2023, wherein it avers that the impugned paragraphs of the respondent’s affidavit do not raise any new issues or incorrect allegations; the applicant has failed to identify precisely the new issues that have been raised; the alleged ‘new’ issues were before the superior courts below as evidenced in the Record of Appeal (at pages 145 to 146, 246, 313, 416 to 686, 506, 559, 630-683, 971 to 1023); therefore, these issues ought to have been addressed in the applicant’s affidavit in response to the appeal; in any event, the appeal before the Court is a second appeal and therefore the applicant is limited to points of law only; the applicant is an interested party who is peripheral to the appeal, and therefore cannot raise new issues; and that the application is brought in bad faith and is an abuse of court process; and
6.
Upon considering the respondent’s submissions dated 30th October 2023, wherein the respondent restates its grounds in opposition and further urges that the applicant’s application is not deserving of this Court’s exercise of discretion under Rule 17 as the applicant’s intention is to convolute the issues before the Court; to support this assertion it relies on this Court’s decision in Nicholas Korir Arap Salat v. The IEBC & 8 Others, SC Application No. 16 of 2015; [2014] eKLR and urges that discretion is to be used judiciously and not whimsically; it also submits that the Court’s jurisdiction in a second appeal such as the instant appeal, is limited to matters of law; and therefore, the applicant cannot introduce new issues, it cites Gatirau Peter Munya v. Dickson Mwenda Kithinji & 3 Others, SC Petition No. 2B of 2014; [2014] eKLR, in support of its argument thereof; and
7.
Taking into account the consents between the petitioner and the applicant dated 9th November 2023; and the 1st interested party and the applicant dated 8th November 2023, both filed on 9th November 2023, wherein the said parties do not oppose the motion for leave to file a supplementary affidavit;
8.
Bearing in mind that the legal question whether this Court can grant leave to file a supplementary affidavit is well settled by Rule 17(1) of the Supreme Court Rules 2020, which gives this Court the discretion to grant a party, with the consent of the other party, leave to file further pleadings or affidavit. Further considering that Section 21(2) of the Supreme Court Act, 2011, and Rule 3(5) of the Supreme Court Rules 2020, grant this Court inherent power to make any ancillary and interlocutory orders as may be necessary for the ends of justice; as further affirmed by the Court in Stephen Maina Githiga & 5 Others v. Kiru Tea Factory Company Limited, SC Petition No. 12 of 2019; [2019] eKLR;","We now opine as follows:
i.
Having considered the pleadings and submissions by the parties herein, we find that the applicant has demonstrated to our satisfaction that the supplementary affidavit it seeks to file will help the Court further define the real questions in controversy, and specifically the 2nd interested party’s stake in the appeal;
ii.
No prejudice will be suffered as the respondent will have an opportunity to respond to the averments by the applicant in the course of the hearing of the main appeal;
iii.
As to whether either of the parties’ pleadings introduce new issues, we restate our finding in the earlier Ruling delivered on 16th June 2023, to the effect that this is a substantive question that will be properly determined in the main appeal;
iv.
Since the main appeal is still pending, it is only prudent that the issue of costs be deferred to the determination of the main appeal; and
10.
Consequently and for reasons aforesaid, we make the following Orders:
i.
The Notice of Motion dated 19th October 2023 and filed on 23rd October 2023 is hereby allowed;
ii.
The applicant shall file and serve the Supplementary Affidavit within seven (7) days from the date of this Ruling; and
iii.
Costs shall be in the Cause.
It is so Ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/6/eng@2024-03-01
Application E041 of 2023,Director of Public Prosecutions v Manyeso (Application E041 of 2023) [2024] KESC 5 (KLR) (Civ) (1 March 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, I Lenaola, W Ouko",1 March 2024,2024.0,Nairobi,Civil,Director of Public Prosecutions v Manyeso,[2024] KESC 5 (KLR),,"1.
Cognisant that Julius Kitsao Manyeso, the respondent, was convicted of the offence of defilement under section 8(1) of the Sexual Offences Act, and sentenced to life imprisonment pursuant to section 8(3) thereof in the Chief Magistrate’s Court at Malindi; that his appeal to the High Court, Criminal Appeal No 60 of 2018, challenging the said conviction and sentence was dismissed by a judgment dated May 14, 2022; and his second appeal to the Court of Appeal, Criminal Appeal No 12 of 2021, was allowed by a judgment dated July 7, 2023 to the extent that the sentence of life imprisonment was declared unconstitutional and substituted with a sentence of 40 years imprisonment; and
2.
Upon perusing the notice of motion before this court dated October 6, 2023 and lodged on October 11, 2023 by the applicant under article 163(4)(a) of the Constitution and rules 15(2) & 33 of the Supreme Court Rules, 2020 seeking the following orders:
“
1.
That the applicant be granted leave to file the petition/appeal out of time.
2.
That this honourable court be pleased to admit and deem the applicant’s attached intended petition to have been duly filed.
3.
That this court grants such other orders as it may deem fit and just.”
3.
Further considering the affidavit in support of the motion sworn by Henry Achochi, a prosecution counsel, on October 4, 2023 and the applicant’s submissions dated October 9, 2023, all of which are to the effect that; following the delivery of the Court of Appeal judgment, the applicant filed a notice of appeal on July 21, 2023 intimating its intention to challenge the impugned judgment; that a team of prosecution counsel drawn from various counties was constituted on July 27, 2023 to review the impugned judgment and give recommendations on a possible appeal to this court; that by the time the team completed its mandate, there was no substantive holder of the office of the Director of Public Prosecution (DPP) to review the recommendations and give directions on the way forward; that it was not until September 25, 2023 that the current holder of the office of the DPP was sworn in office and he thereafter gave directions on filing of the intended appeal; and
4.
Additionally, the applicant deposed in the said affidavit that the delay was not intentional; that the intended appeal raises salient constitutional issues that are of public importance; that this court has jurisdiction to deal with the intended appeal and settle jurisprudential questions/issues that have been raised by the superior courts’ decisions on matters relating to section 8(1) & (2) of the Sexual Offences Act; and that the applicant has met the principles for extension of time as delineated by this court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Applic No 16 of 2014; [2014] eKLR; and
5.
Taking Into Account the respondent’s submissions dated January 25, 2024 and filed on January 26, 2024 to the effect that the office of the Director of Public Prosecutions created under article 157(1) of the Constitution is a constitutional office and ought to run smoothly in the absence of a substantive holder of the office of the DPP; that section 12(1) of the Office of the Director of Public Prosecutions (ODPP) Act provides for the appointment of Deputy Directors to assist the DPP in execution of his/her duties and/or functions under the Constitution; that at the material time there were Deputy Directors in office and as such, there was no void in leadership; that the applicant has not offered a satisfactory explanation for the delay; that the applicant should also seek certification with respect to the issues it claims are of public importance; that the intended appeal is an affront to the respondent’s right to certainty in the criminal process and finality of the judicial process; and that the applicant has not sufficiently made out a prima facie case to warrant the orders sought; and","Bearing in mind that this court is clothed with unfettered discretion under rule 15(2) of the Supreme Court Rules to extend the time for filing an appeal; and that the principles that govern the exercise of such discretion as delineated in the Nick Salat case are as follows:
“
…
1.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
2.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3.
Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
4.
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
5.
Whether there will be any prejudice suffered by the respondents if the extension is granted;
6.
Whether the application has been brought without undue delay; and
7.
Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”; and
7.
Upon deliberations on the motion and the rival submissions, we opine as follows:
i.
It is common ground that the applicant filed a notice of appeal on July 21, 2023 evincing its intention to challenge the impugned judgment delivered on the same day.
ii.
From the motion and the affidavit in support thereof it is clear that the applicant intends to file an appeal to this court as of right pursuant to article 163(4)(a) of the Constitution. In point of fact, the petition sought to be filed, a copy of which is annexed to the motion, indicates as much. What is more, the applicant urged that the intended appeal raises constitutional issues that are of public importance, which the respondent has unfortunately erroneously misconstrued to mean that the applicant should seek certification under article 163(4)(b) of the Constitution with regard to the issues of public importance.
iii.
It follows therefore that by dint of rule 38(1)(a) of the Supreme Court Rules, the applicant should have filed the petition/appeal within thirty (30) days of filing the notice of appeal, that is, on or before September 4, 2023. (See rule 15(1)(b) of the Supreme Court Rules and section 57(d) of the Interpretation and General Provisions Act. Taking into account the fact that the motion at hand was filed on October 11, 2023, the delay translates to 36 days which the applicant attributed to the absence of a substantive holder of the office of the DPP.
iv.
It is not in dispute that from June, 2023 to September 25, 2023 there was no substantive holder of the office of DPP until the current DPP was sworn in office. We appreciate that section 12 (1) of the ODDP Act provides for appointment of Deputy Directors to assist the DPP in the execution of his/her duties under the Constitution and/or in any other written law. Likewise, we cannot help but note that section 12(2) thereof stipulates that, ‘The Deputy Directors shall exercise the powers and functions subject to superintendence, directions and control of the Director’. In the circumstances, the respondent’s argument that the Deputy Directors could have discharged the DPP’s powers/duties in the absence of a substantive holder of the said office cannot dent the applicant’s case.
v.
We find that the applicant has adduced a plausible explanation for the delay in filing the petition/appeal up to when the current DPP was sworn in office. Equally, we find that the explanation is satisfactory for the delay between the assumption of office by the DPP on September 25, 2023 and filing of the Motion at hand on October 11, 2023. The delay of 17 days, in our view, was reasonable in order to allow the DPP to appraise himself with the matter and issue directions thereof.
vi.
Moreover, without pronouncing ourselves on the merits of the intended petition/appeal, we find that grounds of appeal raised therein warrant this court’s consideration. In particular, whether the Court of Appeal erred in entertaining a constitutional issue that had not been raised at the trial court and the High Court; whether the Court of Appeal had misapplied this court’s decision and subsequent directions in Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae), SC Petition No 15 & 16 of 2015; [2021] KESC 31 (KLR) in finding the sentence of life imprisonment unconstitutional; and whether the Court of Appeal usurped the legislative powers of parliament in substituting the sentence of life imprisonment prescribed under section 8(2) of the Sexual Offences Act with 40 years imprisonment.
vii.
Based on the foregoing, the applicant has satisfied the requisite principles to warrant this court to exercise its discretion by extending time within which it can file its petition/appeal. However, the applicant’s prayer urging us to deem the petition annexed to the motion as duly filed is untenable since the filing fees for the same have not been paid.
viii.
Taking into account the foregoing and this court’s decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, we deem it just to order that costs of the Motion shall abide the outcome of the intended appeal.
8.
Consequently and for the reasons afore-stated, we make the following Orders:
i.
The notice of motion dated October 6, 2023 and filed on October 11, 2023 is hereby allowed only to the extent that leave is hereby granted to the applicant to file and serve the intended petition/appeal within 30 days of the date of this ruling.
ii.
Costs of the motion shall abide the outcome of the intended appeal.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/5/eng@2024-03-01
Petition (Application) E019 of 2023,Export Processing Zones Authority v KM (Minor suing through mother and best friend SKS) & 16 others (Petition (Application) E019 of 2023) [2024] KESC 4 (KLR) (1 March 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",1 March 2024,2024.0,Nairobi,Civil,Export Processing Zones Authority v KM (Minor suing through mother and best friend SKS) & 16 others,[2024] KESC 4 (KLR),,"1.
Upon perusing the Notice of Motion dated 26th January, 2024 by the 14th respondent, filed pursuant to articles 48 and 50(1) of the Constitution and rule 15(2) of the Supreme Court Rules, 2020 seeking leave of the court to extend time within which to file and serve a cross appeal to enable the 14th respondent to cross appeal against Civil Appeal No. E019 of 2023 as consolidated with Civil Appeal No. E021 of 2023; and
2.
Upon perusing the affidavit sworn by Erastus K. Gitonga, the acting Director Legal Services of the 14th respondent on 26th January, 2024 in support of the motion and written submissions of even date that; the time to file and serve the record of cross appeal has lapsed, necessitating seeking and obtaining leave of court before filing the record of appeal; the delay was occasioned by intervening circumstances beyond the 14th respondent’s control, being the strict and rigorous public procurement process; the 14th respondent, being a public entity established under article 260 of the Constitution and section 7 of the Environmental Management and Co-ordination Act, 1999, is strictly bound by the provisions of the Public Procurement and Asset Disposal Act, 2015 and was required to hire legal counsel to act for it in the instant appeals; the 14th respondent begun the procurement process for legal services vide tender No. NEMA/T/12/2023-2024 advertised on 29th November, 2023, which process ended in January, 2024 with the successful bidders being the firm of Messrs Murugu Rigoro & Co. Advocates; after notification of their successful bid vide letter dated 11th January, 2024, the said firm duly accepted vide letter dated 15th January, 2024, with execution of the formal contract for provision of legal services taking place on 25th January, 2024; upon receiving proper instruction on 25th January, 2024 the firm moved with alacrity, came on and filed responses to the two petitions along with the present application. The 14th respondent further contends that it has satisfactorily explained the reason for the delay, which delay, was not deliberate, and it considers not to be inordinate in the circumstances of the case; the parties will not be prejudiced if the application is allowed as the instant appeals are yet to be set down for hearing; and that the intended cross appeal is not frivolous as it raises weighty issues for the determination of this Court
3.
Upon noting that the 1st to 10th respondents in their replying affidavit sworn by Phyllis Issa Indiatsi Omido, the 10th respondent’s Executive Director on 31st January, 2024 and written submissions of even date are opposed to the application on grounds that: the application is an afterthought intended to delay the expeditious disposal of the consolidated appeals; the reason provided for the delay is an excuse noting that while before both the Environment and Land Court as well as the Court of Appeal, the 14th respondent was ably represented by Erastus K. Gitonga Advocate, the 14th respondent’s acting Director of Legal Services; there is no explanation proffered why counsel Erastus K. Gitonga, failed to file an appeal to comply with the strict timelines under the rules of this Court, even if he would eventually hand the matter over to outside counsel;judgment by the Court of Appeal was delivered on 23rd June, 2023, Petition E021 of 2023 was filed on 7th August, 2023 and Petition E019 of 2023 was filed a few days earlier, while the tender by the 14th respondent for the provision of legal services for the two petitions was floated on 29th November, 2023, five(5) months after the judgment was delivered and three (3) months after the petitions were filed; the 14th respondent has failed to explain the apparent indolence and in the absence of such, there is no basis for the delay and lapse cannot be excused; further the 14th respondent’s application and attempt to file a cross appeal will cause serious delay in the disposal of the matter, which delay is extremely prejudicial to the 1st to 10th respondents, who the High Court and Court of Appeal found to be victims of horrendous pollution and poisoning, hence were in need of medical intervention to alleviate some of their suffering; the interests of the 14th respondent must be balances against those of the 1st to 10th respondents; the 14th respondent will not be condemned unheard as it still has the opportunity to file responses to the petitions.","Having considered the application, responses and submissions before us, We Now Opine as follows:
4.
Appreciating that the court, under rule 15(2) of the Supreme Court Rules, 2020 has discretionary powers to extend the time limited by the rules or by any of its decisions; that any person intending to cross appeal is required by rule 47(2)(b) of the Supreme Court Rules, 2020 to file lodge their memorandum of appeal and record of appeal within thirty days of service, or not less than thirty days before the hearing of the appeal, whichever is the later. Rule 47 provides as follows;
“
(1)
A respondent who intends to cross-appeal shall specify the grounds of contention, and the nature of the relief that the respondent seeks from the Court.
(2)
The respondent shall—
(a)
provide contact details including the names, postal address, telephone number and email address of any persons intended to be served with the notice; and
(b)
lodge eight copies of the memorandum of appeal and record of appeal in the registry within thirty days of service upon the respondent, or not less than thirty days before the hearing of the appeal, whichever is the later.
(3)
An application or notice to cross-appeal shall be as set out in Form I of the First Schedule.” (Emphasis added)
5.
Considering that the 14th respondent lodged their Notice of Appeal dated 26th January, 2024 in the Court’s registry on 5th February, 2024 wherein it specifies the grounds of contention, and the nature of the reliefs it intends to seek;
6.
Bearing in mind that this matter, being the consolidated appeals Petition E021 of 2023 and Petition E019 of 2023, is still undergoing the compliance process before the Deputy Registrar in preparation for being set down for hearing, which process has been held up by the instant application;
7.
Further considering that due to this, the 14th respondent is still within time to file its cross appeal, in any case, not later than thirty (30) days before the hearing of the appeal, once a date is set down;
8.
For the aforestated reasons, we find that the 14th respondent was not required to obtain leave of the court, rendering the instant application entirely unnecessary. Be that as it may, in the circumstances we are minded to allow the application and to further direct that, for good order, the 14th respondent should proceed to file its memorandum of appeal and record of appeal within fourteen (14) days of this ruling;
9.
As regards costs, in the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate of & 4 others, SC. Petition No. 4 of 2012; [2013] eKLR it was settled that costs follow the event and that the Court may in appropriate cases exercise discretion and decide otherwise. Given that the instant application was entirely superfluous and could have been avoided had counsel for the 14th respondent perused the Rules of this Court, we find it judicious for the applicant, the 14th respondent to bear the costs of this application.
10.
Accordingly, we are persuaded in the circumstances, to make the following orders:
a.
The notice of motion dated 26th January, 2024 be and is hereby allowed;
b.
The applicant to file and serve its memorandum of appeal and record of appeal within fourteen (14) days of delivery of this ruling;
c.
The applicant to bears the costs of the application
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/4/eng@2024-03-01
Petition E004 of 2023,Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others (Petition E004 & E002 of 2023 (Consolidated)) [2024] KESC 3 (KLR) (21 February 2024) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",21 February 2024,2024.0,Nairobi,Civil,Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others,[2024] KESC 3 (KLR),,"A. Introduction
1.
Two petitions were filed before the Court, namely, Petition No E002 of 2023 dated February 16, 2023 and filed on February 17, 2023; and Petition No E004 of 2023 dated February 4, 2023 and filed on February 28, 2023. By a consent order of this court issued on March 31, 2023, Petition No E002 of 2023 was consolidated with Petition No E004 of 2023 for determination. It was further agreed that Petition No E004 of 2023 be the lead file.
2.
The consolidated appeal is against the Judgment of the Court of Appeal at Nairobi in Civil Appeal No 656 of 2022 (Okwengu, Warsame & Mativo, JJA) which overturned the Judgment of the Employment and Labour Relations Court (the ELRC) (Nduma, Wasilwa, and Mbaru, JJ). Petition No E004 of 2023 is filed pursuant to inter alia article 163(4)(a) of the Constitution and Rules 38 and 39 of the Supreme Court Rules, 2020 while Petition No E002 of 2023 is filed pursuant to rule 39 of the Supreme Court Rules, 2020.
B. Background
3.
This litigation arises from the enactment of the National Social Security Fund Act, 2013, (hereinafter the NSSF Act, 2013) which was assented to by the President on December 24, 2013 and came into operation on January 10, 2014. The enactment of the Act triggered the institution of five constitutional petitions before the Constitutional and Human Rights Division of the High Court at Nairobi, and in various stations of the ELRC. The petitions, all of which challenged the constitutionality of the NSSF Act, 2013 included:
a.
High Court (Nairobi) Constitutional Petition No 249 of 2014: Kenya County Government Workers Union v The National Social Security Fund Board of Trustees & 3 others;
b.
High Court (Nairobi) Constitutional Petition No 270 of 2014: Kenya Tea Growers Association & Agricultural Employers’ Association v The Attorney General & The National Security Fund Board of Trustees;
c.
Industrial Court (Nakuru) Petition No 9 of 2014 Nkauraki Edwin Lesidai & 89 others v Attorney General & 3 others;
d.
Employment and Labour Relations Court (Nairobi) Petition No 34 of 2014: Kenya Quarry and Mine Workers Union & 4 others v Attorney General & others; and
e.
Industrial Court (Nakuru) Petition No 11 of 2014; Kenya Plantation and Agricultural Workers Union v Board of Trustees, National Social Security Fund & another.","E. Analysis
i. On the 3rd appellant’s locus standi before the court
59.
In its preliminary objection dated March 7, 2023, the 1st respondent has made heavy weather of the 3rd appellant’s capacity to institute its appeal as of right before the court, it having been “simply” an interested party before the trial court and not having participated in the proceedings before the Court of Appeal. The 2nd, 3rd, 4th and 5th respondents associate themselves with the 1st respondent’s argument. Collectively, the respondents take issue with the 3rd appellant mutating from an interested party and purporting to take over the role of primary parties, yet it did not have independent claims and remedies before the trial court.
60.
Moreover, the respondents urge that the 3rd appellant’s claim that it was not served is immaterial, as it was fully aware of the pendency of the appeal. They assert that the 3rd appellant attended a meeting held on October 19, 2022, and fully participated in discussions on the appeal filed by the 1st respondent, proposing that the appeal be withdrawn. It is also urged that in any event, the 3rd appellant’s membership consists of former employees of local authorities who were contributors of a closed scheme, to wit, Laptrust, a Fund being run as a going concern, which will be wound up upon payment of the last contributor. Consequently, it is urged, the impugned Act does not apply to its members, thereby divesting the 3rd appellant of any identifiable stake in the present proceedings.
61.
On the other hand, the 3rd appellant denies that it was served with the notice and record of appeal, or that it was aware of the proceedings before the Court of Appeal. To buttress its denial, the 3rd appellant challenged the respondents, specifically the Attorney General, to prove service by way of an affidavit of service.
The 3rd appellant avers that no such evidence has been placed before the court and it must follow therefore, that this ground of appeal is not contested. On the allegation that counsel for the 3rd appellant attended the meeting of 19th October 2022 alluded to by the respondents, the 3rd appellant responded that the informal meeting was held long after the expiry of the 7-day deadline prescribed by rule 79(1) of the Court of Appeal Rules 2022, and could not be a substitute for service. Furthermore, the 3rd appellant urges that contrary to their argument, the respondents signed a consent before the ELRC acknowledging that the 3rd appellant had an interest in the matter. Accordingly, they are now estopped from alleging otherwise. To this end, it is submitted, the court would be setting a dangerous precedent if it were to indulge a party who refuses, fails or omits to serve another, so as to deny it audience.
62.
Having set out the parties’ case, we now proceed to give our determination. It is common ground that the 3rd appellant participated in the proceedings before the trial court as an interested party, and did not participate in the proceedings before the Court of Appeal. However, it is instructive to note that this court rendered itself on the 3rd appellant’s standing in its ruling dated June 16, 2003 by stating:
“[22]
…. Perusal of the prayers/reliefs and the case advanced by the 3rd applicant in its appeal as well as its motion reveals that they are more or less in tandem with the 1st and 2nd applicants’ case and reliefs sought in their appeal and motion. As such, it cannot be said that the 3rd applicant’s interests have gone over and above that of the primary parties. What is more, we find that the 3rd applicant has not introduced a new issue that was either not canvassed before the superior courts below or did not arise from the impugned judgment. As to whether the 3rd applicant should have filed a review before the Court of Appeal as opposed to an appeal before this court, we find that issue would go to the merit of its appeal and ought to be addressed in the consolidated appeal.”
63.
Be that as it may, despite the 5th respondent’s insistence that the 3rd appellant was served with both the notice and record of appeal, the state counsel could hardly prove service from the Record. They identified their notice of cross appeal at Volume 7, page 1028 of the 3rd appellant’s record of appeal, in support of their assertion that they served the 3rd appellant by email. A perusal of the same reveals that the 3rd appellant’s advocates on record are listed under “parties upon whom the Attorney General intended to effect service”. However, this falls woefully short of conclusive proof of service.
64.
Having concluded that there is no proof that the 3rd appellant was served, what remedy was available to it? The 3rd respondent suggests that in the circumstances, the only avenue for redress available to it was to apply for review of the Court of Appeal’s judgment. However, we are differently minded. The argument that the 3rd appellant was only an interested party before the trial court with limited participation and is therefore precluded from filing an appeal before this court does not hold. Notably, it had a demonstrable interest and was active before the trial court. Further, the lapse in service leading to its non-involvement at the Court of Appeal lay squarely with the Attorney General and perhaps, to some extent with the Court of Appeal itself.
65.
We agree with the 5th respondent that the overriding interest is that of a primary party, in accordance with the principles set out in the case of Francis Karioki Muruatetu & another v Republic & 5 others Petition No 6 of 2016; [2016] eKLR thus:
“
Having carefully considered all arguments, we are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties’ before the court. The determination of any matter will always have a direct effect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the court…
…. Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the court will always remain the issues as presented by the principal parties, or as framed by the court from the pleadings and submissions of the principal parties.” [Emphasis ours]
66.
However, we reiterate that in this case, the 3rd appellant’s case and prayers are identical to those of the 1st and 2nd appellants, whose petition is the lead file. The respondents’ argument as to the standing of the 3rd appellant is therefore unmerited.
67.
This case is clearly distinguishable from our decision in Law Society of Kenya v Communications Authority of Kenya & 10 others (Petition 8 of 2020) [2023] KESC 27 (KLR), wherein the court declined to admit an appeal by the intending appellant who had never been a party to the case at both the High Court and Court of Appeal. The court found difficulty in granting relief at the appellate stage to a party who did not litigate those issues before the superior courts.
ii. Whether the Employment and Labour Relations Court lacked jurisdiction to determine the constitutional validity of the NSSF Act 2013
68.
It is the appellants’ argument that the ELRC had jurisdiction to declare the NSSF Act unconstitutional. They base their argument on article 162(2)(a) of the Constitution and the opening paragraph of section 12(1) of the ELRC Act, to urge that the expression ‘relating to employment and labour relations’ cannot be construed to mean only disputes between ‘employers and employees.’ Similarly, it is urged, the expression ‘connected purposes’ in the preamble should be construed to mean any dispute connected with employment and labour relations. As regards the list of scenarios enumerated in section 12(1) of the ELRC Act, the appellants assert that the expression ‘including’ means “includes but is not limited to” in accordance with the interpretation in article 259(4)(b) of the Constitution. They cite the case of EG v Non-Governmental Organization Coordination Board & others HC Petition No 440 of 2013; [2015] eKLR, on an inclusive construction of the word ‘including’.
69.
Additionally, it is the appellants’ case that provision of social security benefits including pensions is an integral component of employment and labour relations both domestically and internationally. The NSSF Act 2013, they submit, falls within that sphere. They urge that pension rights cannot exist outside of employment; and that the drafters of the Constitution intended that the ELRC should have jurisdiction on all matters relating to employment and labour relations.
70.
In this regard, they posit that the interpretation of constitutional provisions is not the preserve of the High Court more so where employment and labour relations are involved. In their estimation, by necessary inference and deduction, a dispute relating to the constitutionality of an Act of Parliament that applies only to employers and employees and deals entirely with pension must be a dispute within the four corners of the jurisdiction of the ELRC. Furthermore, the appellants implore the court to adopt the practice in the South African and Nigerian Labour Courts which are empowered to nullify laws within their purview.
71.
Conversely, the respondents contend that the first issue as framed by the trial court itself, was that the gravamen of the petition was for the court to find the enactment of the NSSF Act No 45 of 2013 in violation of the Constitution. They therefore surmise that the trial court assumed jurisdiction over the enactment process of the Act, which was not an issue incidental to the employer-employee relationship. According to the respondents, the ELRC assumed the jurisdiction of the High Court under article 165(3)(d).
72.
This appeal turns on the ELRC’s jurisdiction as a court of the status of the High Court to determine the constitutional validity of an Act of Parliament. In this regard, this court in the Karisa Chengo Case adopted the definition of jurisdiction in the following terms:
“
(35)
In the above regard, we note that in almost all the legal systems of the world, the term “jurisdiction” has emerged as a critical concept in litigation. Halsbury’s Laws of England (4th Ed) Vol 9 at page 350 thus defines “jurisdiction” as “…the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.” John Beecroft Saunders in his treatise Words and Phrases Legally Defined Vol 3, at page 113 reiterates the latter definition of the term ‘jurisdiction’ as follows: “By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” [Emphasis added]
73.
For us to dispose of this issue in the face of the two contrasting positions of the parties, it is important to briefly revisit the constitutional reform process that preceded the establishment of the ELRC. In the Karisa Chengo case, the court recounted the history and context in which the Committee of Experts (CoE) conceived of specialised courts. Specifically, that the drafters of the Constitution intended to delineate the roles of specialised courts, for the purpose of achieving specialization while conferring equality of the status of the High Court to the new category of courts. The court clearly stated thus:
“
(51)
Flowing from the above, it is obvious to us that status and jurisdiction are different concepts. Status denotes hierarchy while jurisdiction covers the sphere of the court’s operation. Courts can therefore be of the same status, but exercise different jurisdictions. That is why this court has reaffirmed its position that the jurisdiction of courts is derived from the Constitution, or legislation (see In Re the Matter of the Interim Independent Electoral Commission, at paras 29 and 30; and Samuel Kamau Macharia and another v Kenya Commercial Bank and two others, SupCt Civil Application No 2 of 2011 [para 68]). In this instance, the jurisdiction of the specialized Courts is prescribed by Parliament, through the said enactment of legislation relating, respectively, to the ELC and the ELRC.” [Emphasis added]
74.
Pursuant to article 162(2)(a) of the Constitution, the ELRC was operationalized by the Employment and Labour Relations Court Act No 20 of 2011, whose purpose is to “establish the Employment and Labour Relations Court to hear and determine disputes relating to employment and labour relations”. By dint of section 12(1) of the Act, the jurisdiction of the court is delineated as follows:
12.
Jurisdiction of the court
1.
The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the court relating to employment and labour relations including —
a.
disputes relating to or arising out of employment between an employer and an employee;
b.
disputes between an employer and a trade union;
c.
disputes between an employers' organisation and a trade unions organisation;
d.
disputes between trade unions;
e.
disputes between employer organizations;
f.
disputes between an employers' organisation and a trade union;
g.
disputes between a trade union and a member thereof;
h.
disputes between an employer's organisation or a federation and a member thereof;
i.
disputes concerning the registration and election of trade union officials; and
j.
disputes relating to the registration and enforcement of collective agreements.
75.
Section 12(2) of the Act provides that:
“An application, claim, or complaint may be lodged with the court by or against an employee, an employer, a trade union, an employers’ organization, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose.”
From the above provisions of the Constitution and the Act, it is clear that the jurisdiction of the ELRC is limited in terms of the types of disputes and the parties.
76.
On the other hand, the jurisdiction of the High Court to determine the constitutional validity of a statute is clearly stipulated in article 165(3)(d)(i) of the Constitution in the following terms:
165.
...
(3)
Subject to clause (5) the High Court shall have:
d.
jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of:
i.
the question whether any law is inconsistent with or in contravention of this Constitution...
77.
The question before us is whether, within the scheme of the jurisdictional virements effected by the Constitution between the High Court and the two specialized courts, the latter can determine the constitutional validity of a statute. In order to answer this question, we have to revisit the relevant provisions of the Constitution as above quoted.
Clause 5 to which article 165(3) is subject provides as follows:
“
The High Court shall not have jurisdiction in respect of matters-
a.
reserved for the exclusive jurisdiction of the Supreme Court under this Constitution, or
b.
falling within the jurisdiction of the courts contemplated in article 162(2).
78.
Once again, we are guided by this court’s finding in the Karisa Chengo Case wherein the court held as follows:
“
(52)
In addition to the above, we note that pursuant to article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and the ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of courts, with sui generiss jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous courts and exercise different and distinct jurisdictions. As article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.” [Emphasis added]
79.
In our view, there is nothing in the Constitution, the ELRC Act, or indeed in our decision in the Karisa Chengo Case to suggest that in exercising its jurisdiction over disputes emanating from employment and labour relations, the ELRC court is precluded from determining the constitutional validity of a statute. This is especially so if the statute in question lies at the centre of the dispute. What it cannot do, is to sit as if it were the High Court under article 165 of the Constitution, and declare a statute unconstitutional in circumstances where the dispute in question has nothing or little to do with employment and labour relations within the context of the ELRC Act. But, if at the commencement or during the determination of a dispute falling within its jurisdiction, as reserved to it by article 162(2)(a) of the Constitution, a question arises regarding the constitutional validity of a statute or a provision thereof, there can be no reason to prevent the ELRC from disposing of that particular issue. Otherwise, how else would it comprehensively and with finality determine such a dispute? Stripping the court of such authority would leave it jurisdictionally hum-strung; a consequence that could hardly have been envisaged by the framers of the Constitution, even as they precluded the High Court from exercising jurisdiction over matters employment and labour pursuant to article 165(5)(b). We are therefore in agreement with the appellants’ submissions regarding this issue as encapsulated in paragraph 69 of this Judgment.
80.
Having said so, we have to emphasize that the High Court retains the residual jurisdiction to determine whether any law is inconsistent with the Constitution within the meaning of article 165, bearing in mind the provisions of article 165(5)(b). It must also be restated that the High Court (as between it and courts established under article 162 of the Constitution), has the original and exclusive jurisdiction (without exception) to hear and determine applications for redress of denial, violation, or infringement of rights and fundamental freedoms in the Bill of Rights pursuant to articles 22 and 23 of the Constitution (See Supreme Court Judgment in the County Assemblies Forum v Attorney General & others; Pet No 22 of 2017, at Paragraph 56).
81.
We now come to the specific question whether the ELRC correctly assumed jurisdiction to determine the constitutional validity of the NSSF Act 2013. Towards this end, we are persuaded by the appellants’ argument to the effect that the Court of Appeal adopted a rather restrictive view of the reach of the NSSF Act 2013, in holding that the matter before the ELRC did not emanate from an “employer-employee” dispute. The extensive provisions of the Act, requiring employers and employees to contribute specific amounts of money to a Social Security Fund cannot be said to have nothing to do with an employer-employee relationship. Even if the matter did not emanate from an employer-employee dispute within the confines of the ELRC Act, to the extent that it introduces enhanced and mandatory contributory amounts of employee earnings, the Act has potential to ignite justiciable grievances from certain cadres of employees. No doubt these grievances would end up at the ELRC which would likely be called upon, as it was in this case, to determine the constitutional validity of the same. But even beyond the employer-employee dispute resolution regime, the NSSF Act 2013, seeks to expansively regulate a wide array of labour relations especially the social security of the employed cadre when they finally exit formal employment. Should it then be surprising that an employee should be concerned about what his/her future would look like after salaried employment?
82.
We must ask, who were the parties to this dispute? From the pleadings on record, before and after the consolidation of the various petitions, it is clear that the dispute pitted trade unions, workers associations, employers’ associations and certain employees, against the Cabinet Secretary for Labour, the NSSF Board of Trustees, and the Attorney General. The dispute roped in organizations and authorities as diverse as the Central Organization of Trade Unions (COTU), Federation of Kenya Employers (FKE), the Retirement Benefits Authority (RBA), and the Competition Authority. What were the appellants complaining about? From the proceedings as re-enacted in this Judgment, whether rightly or wrongly, they complained among others, about the burdensome nature of the new contributions to the scheme that had been introduced by the NSSF Act 2013. They complained about the enhanced powers of the Cabinet Secretary for Labour over the management of their Scheme. They complained about the legality of a Fund premised on an employer and employee relationship. They complained about the negative effect the new law would have on the existing Collective Bargaining Agreements (CBAs).
83.
Can it be said that the parties herein are not among the disputants contemplated under section 12(2) of the ELRC Act? Even where the Act stipulates that a complaint, application or suit may be lodged against the Cabinet Secretary for Labour or any office established by law for that purpose? Or that the nature of the dispute is not one that falls within the jurisdiction of the ELRC, even where, as in this case, both employers and employees, trade unions, and workers associations are decrying what they consider to be the adverse effect of a new law on their working conditions? We are in agreement with the Court of Appeal to the effect that this dispute did not arise strictly from an employer-employee relationship. But what about the other aspects of the dispute? What meaning is to be ascribed to the phrase “labour relations”?
84.
It has been submitted by the respondents herein, that by dint of our decision in the Albert Chaurembo case, the ELRC has no jurisdiction over disputes arising from the implementation of the NSSF Act 2013, as the same deals with “Pensions”. But what was the decision in Chaurembo? At Paragraph 145, the court pronounced itself as follows:
“
On the other hand, section 2 of the Employment and Labour Relations Court Act defines the term an “an employee” to mean a person employed for wages or salary and includes an apprentice and indentured learner. The provision further defines “employer” to mean any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation, or company. Thus, whereas a dispute may well fall within an employment dispute, the meaning of a pensioner is nowhere near the meaning of an employee, neither can the scheme of organisation fit in the meaning of an employer.” [Emphasis added]
85.
Again, at paragraph 146, the court stated:
“In our view, once a member leaves the employment of a Sponsor, by becoming a pensioner, there is no longer a relationship of employer-employee that exists between such a pensioner and the sponsor. The relationship that exists in that case becomes that of trustee and beneficiaries (members) of a trust and that relationship is governed by the Retirement Benefits Act, Trustees Act, cap 167 of the Laws of Kenya and the general common law on trusts. It is important to note that nowhere in the Employment and Labour Relations Court Act is there jurisdiction conferred on the Employment and Labour Relations Court to resolve issues between trustees of a pension scheme and members of the scheme (pensioners).”
86.
It is clear that our decision in Chaurembo, does not oust the jurisdiction of the ELRC to determine disputes, arising out of the application of the provisions of the NSSF Act 2013, to employees who are yet to become pensioners. What the ELRC lacks, is jurisdiction over disputes between pensioners and trustees of a specific pension scheme as the latter is governed by dedicated statutes and applicable common law. A pensioner is a person who is no longer in employment. He cannot therefore seek any redress arising from a dispute between him and the trustees of a Scheme to which he is a member from the ELRC. The appellants herein are not pensioners but organizations representing employees who are still in active employment. Although the NSSF Board of Trustees is a main protagonist in the dispute, it has been enjoined due to the fact that it is the one which will administer the Scheme of which the appellants are dissatisfied with.
87.
For the avoidance of doubt, and so as to stop the pendulum of jurisdictional re-jigging that has characterised this case from the beginning, we hereby restate that the ELRC has jurisdiction to determine the constitutional validity of a statute in matters employment and labour. Suffice it to say that the statute in question must be in focus and at the centre of the dispute in question. Having so declared, there remains the question as to whether the ELRC rightly and judiciously, exercised its jurisdiction in declaring the NSSF Act 2013, unconstitutional. It is no longer a question whether the Court had or lacked jurisdiction to so do, but whether it correctly exercised its jurisdiction in declaring the Act unconstitutional. Had the Court of Appeal not found to the contrary, it would have answered this question comprehensively when the appeal came up for hearing before it. But having found that in declaring the NSSF Act 2013, unconstitutional, the ELRC had acted without jurisdiction, the appellate court could not pronounce itself on the merits of the trial court’s findings. It had to down its tools and remit the matter to the court that had jurisdiction, in this case, the High Court. However, instead of remitting the matter as aforesaid, the appellate court went on to determine the merits of one issue, while leaving the others in abeyance. It is this scenario that brings us to the next issue for determination.
iii. Whether the Court of Appeal exercised original jurisdiction in partially determining the constitutionality of the NSSF Act, 2013
88.
On the one hand, the appellants contend that by pronouncing itself on the substantive merits of the case, (the Senate’s concurrence in the enactment of the NSSF Act), the Court of Appeal assumed original jurisdiction, in effect pre-empting trial court level determination. They urge that the court committed a fundamental error. In their opinion, having declared the ELRC proceedings a nullity, there was no Judgment from the trial court upon which the Court of Appeal could make a determination.
89.
In this regard, they argue that the Court of Appeal ran afoul of the limits of its appellate jurisdiction under article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act. In effect, the appellants conclude that the Court of Appeal’s determination that the enactment of the impugned Act did not require the Senate’s concurrence is null and void.
90.
On the other hand, the respondents argue that the Court of Appeal correctly determined that the NSSF Act 2013, being a legislation on social security and professional pension plans, is a National Government function under Part 1 of the fourth schedule to the Constitution and consequently, it was not a Bill amenable to concurrent legislation by the National Assembly and the Senate under article 110.
91.
The respondents also faulted the trial court for misapplying this court’s advisory in, In the Matter of the Speaker of the Senate; Advisory Opinion Reference No 2 of 2013; [2013] eKLR which was clearly distinguishable as it dealt with a Money Bill. Furthermore, they faulted the trial court for failing to apply the correct test to ascertain whether the NSSF Act 2013, dealt with functions, powers and finances of the County Government.
92.
We note that while citing the case of Desai v Warsaw (1967) EA 351, the Court of Appeal held that proceedings conducted by a court without jurisdiction, as well as any award, judgment or orders arising therefrom are a nullity. Notwithstanding its finding, the appellate court proceeded to decide on the concurrence issue. It is instructive to note that in doing so, the Court of Appeal termed it as a threshold issue. The effect of this determination which went to the merits of the claim, to the exclusion of the grounds challenging the validity of the NSSF Act 2013, leaves other factual and constitutional questions of live controversy that are yet to be determined through the requisite appellate process. In the case of The Kenya Section of the International Commission of Jurists v. Attorney General, Crim Appeal 1 of 2012, [at p 4, paras.24-26] this court stated:
“We recognize that generally, the entry into the sphere of emerging jurisprudence is located at the High Court which bears original jurisdiction to interpret the Constitution and which has an appellate jurisdiction from lower courts that address the basic scenarios of fact that spawn issues of jural character.
The Supreme Court all by itself and without the benefit of such other courts would be insufficiently resourced and empowered to develop rich jurisprudence as provided for. The law-making chain indeed goes back to the subordinate courts, which constitute the “grassroots” entry-point into the varied intellectual dimensions of law that will guide the process of construction of legal ideas.
It follows that the Supreme Court, to best situate itself so as to address the complexity of the construction of law, must safeguard the proper jurisdiction of the courts below it.”
93.
In view of our opinion as expressed in the paragraph above, it is our holding that where the Court of Appeal determines that a trial court has acted without jurisdiction in determining a matter, it cannot assume original jurisdiction over the same. Having so found, the appellate court has to remit the case to the court that is clothed with jurisdiction to dispose of the same without going into the merits of the dispute, for doing so may prejudice the fair determination of the case by the court with jurisdiction.
iv. Whether the case should be remitted to the High Court for determination
94.
The appellants urge that in the event that the court upholds the Court of Appeal, the case ought to be remitted to the High Court for determination on its merits. On the other hand, the respondents’ position is that remanding the case back to the High Court was not an avenue available to the Court of Appeal. They relied on section 75 of the Civil Procedure Act to argue that a case can only be remanded to a court from which it came, that had jurisdiction to determine it in the first place.
95.
In order to make an informed determination on this issue, it behoves us to revisit the procedural environment in which this matter was filed, as well as the chronology of events through the various superior courts. It is common ground that two of the five petitions were initially filed at the Constitutional and Human Rights Division of the High Court. When placed before Mumbi Ngugi J (as she then was), the learned judge directed that the matter be placed before the Employment and Labour Relations Court, as its subject matter involved social security, a matter within the ELRC’s jurisdiction. Thereafter, the question of jurisdiction arose at the outset, with the Chief Justice empanelling a mixed bench before the same was declared unconstitutional pursuant to the Karisa Chengo case. Subsequently, the Court of Appeal set aside the ELRC Judgment and all consequential orders.
96.
We have already held that, contrary to the Court of Appeal’s finding, the ELRC had jurisdiction to determine the constitutional validity of the NSSF Act 2013 2013. It is therefore no longer a live issue as to whether this matter should be remitted to the High Court. In the unique circumstances of this case, the relief that lends itself to us is section 22 of the Supreme Court Act 2011, which empowers the court to remit proceedings in the following terms:
22.
Power to remit proceedings
The Supreme Court may remit proceedings that began in a court or tribunal to any court that has jurisdiction to deal with the matter.
97.
In the circumstances, this case is to be remitted to the Court of Appeal to determine the substantive merits of the Judgment of the ELRC. Due to the nature of the matter, the surrounding public interest and the time taken by the case in the corridors of justice, it is prudent that the matter be heard on a priority basis.
v. Costs
98.
The respondents made submissions on their entitlement to costs. Guided by this court’s holding in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2014; [2014] eKLR, the general rule is that costs follow the event. However, the court may in appropriate cases exercise discretion and decide otherwise, to ensure that the ends of justice are met. In this instance, we do not think that there is justification to direct the respondents to bear the costs of this litigation. As it is, this case is yet to be substantively determined by the Court of Appeal, with the possibility that a further appeal may still lie to this court. Consequently, the order that commends itself to us is to direct each party to bear its own costs.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/3/eng@2024-02-21
Petition E020 of 2023,Garama v Karisa & 3 others (Petition E020 of 2023) [2024] KESC 1 (KLR) (16 February 2024) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",16 February2024,2024.0,Nairobi,Civil,Garama v Karisa & 3 others,[2024] KESC 1 (KLR),,"Before the court are two separate applications brought by the parties for determination. While not directly related, to ensure judicious use of time, this ruling will dispose of both. The first application is by the 2nd and 3rd respondents seeking leave to adduce new and additional evidence while the second application is by the appellant seeking orders to strike out the 1st respondent’s submissions for non-compliance with the directions of the Deputy Registrar of this court issued on September 18, 2023 as well as Supreme Court (General) Practice Directions,2020; and
2.
Upon perusing the 2nd and 3rd respondents’ application dated October 13, 2023 brought pursuant to section 20 of the Supreme Court Act, 2011 and rule 26 of the Supreme Court Rules, 2020 seeking leave to adduce new and additional evidence; and
3.
Upon considering the grounds in support of the application and the averments contained in the supporting and supplementary affidavits sworn by Chrispine Owiye, the Director, Legal, and Public Affairs of the 2nd respondent, wherein he inter alia contends that; on March 3, 2023, the High Court rendered its decision in Malindi Election Petition No E001 of 2022 where it among others, determined that there was no evidence to identify the persons who had witnessed the re-opening of the ballot boxes at Mapimo Youth Polytechnic polling station 1 of 6 hence depriving the process of any transparency; the appellant appealed the decision vide Election Appeal No E001 of 2023 and on the July 28, 2023, the Court of Appeal rendered its decision where it found inter alia that, the act of taking a vote recount in the absence of all the agents of the parties failed to meet the constitutional test of transparency and accountability in light of article 81 of the Constitution; the said decision was taken by the Court of Appeal despite the 2nd and 3rd respondents’ testimony that over 14 agents witnessed the process of opening the ballot boxes to retrieve the original Form 35A accidentally locked in the wrong ballot box; the High Court at all material times had full access to the polling station diary which was by order deposited with the court; the two judgments of the superior courts question the transparency of the process of re- opening the ballot boxes to retrieve the original Form 35A and the incidental recount of the votes which was at the core of the courts’ decision to invalidate the election result of Mapimo Youth Polytechnic polling station 1 of 6; it is therefore necessary for this court to have the benefit of perusing the polling station dairy for Mapimo Youth Polytechnic polling station 1 of 6 to test the correctness of the superior court’s decision; the additional evidence is not for the purpose of removing lacunae and filling gaps in evidence but is needful to assist the court in making its determination in the interest of justice; and
4.
Noting the 2nd and 3rd respondents’ submissions dated October 26, 2023 where they reiterate the contents of their supporting affidavit and further submit that; the court has jurisdiction to call or admit additional evidence in any proceedings where it considers necessary; the relevance of the additional evidence they seek to produce is that it is directly relevant to the issue regarding the election result for Mapimo Youth Polytechnic polling station 1 of 6; it is likely to influence the court’s determination of whether the process of opening the ballot boxes to retrieve the original Form 35A and consequential recount met the tests of transparency; and
5.
Further noting the 1st respondent’s submissions opposing the 2nd and 3rd respondents’ application where he submits that; he filed a preliminary objection on August 25, 2023 on the ground that this court lacks jurisdiction to hear and determine the petition; parties have filed their respective responses to the preliminary objection; that the preliminary objection ought to be disposed of first; the applicants have failed to meet the conditions as provided for by law and in the case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others, SC Petition No 7 & 9 of 2018 [2018] eKLR and Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others, SC Petition (Application) No 38 of 2020 [2020] eKLR for the court to exercise its discretion in their favour; the principles set by the court in the above-quoted cases for admission of new and additional evidence are not disjunctive and must be complied with in totality; and
6.
Taking into account the appellant’s application dated October 25, 2023 brought pursuant to sections 21 and 23(2B) of the Supreme Court Act, 2011 and rule 31 of the Supreme Court Rules, 2020 Direction 17 and Part D of the Supreme Court (General) Practice Directions, 2020 seeking an order that the submissions by the 1st respondent be struck out for non-compliance with the directions of the Deputy Registrar of the Supreme Court issued on September 18, 2023 as well as Supreme Court (General) Practice Directions, 2020; and
7.
Considering the grounds in support of the application and the averments contained in the supporting and supplementary affidavits sworn by Kevin Wakwaya, an Advocate practicing with the firm of Rachier & Amollo LLP wherein he contends that: he has had the conduct of the matter on behalf of the appellant and has instructions to swear the affidavit; on September 18, 2023, the Deputy Registrar of this court issued directions that all parties present do file their submissions within the stipulated timelines; on September 28, 2023, the appellant filed his submissions in total compliance with the court’s directions; the 1st respondent in total disobedience of the court’s directions filed two sets of submissions, one for his preliminary objection and the other for the main petition; the 1st respondent disregarded direction 17 of the Supreme Court (General) Practice Directions, 2020 by exceeding the limit of 15 pages and the font size requirement of Times New Roman and font size 12; the disregard of the Supreme Court (General) Practice Directions, 2020 was deliberately made to unduly benefit the 1st respondent to the detriment of the appellant who was limited to addressing both the preliminary objection and petition of appeal in 15 pages; and
8.
Also considering the appellant’s submissions dated October 25, 2023 wherein he reiterates the contents in support of the application and submits that; the Deputy Registrar directed that all parties should file one set of submissions to address both the 1st respondent’s preliminary objection and the petition of appeal; the appellant, 2nd and 3rd respondents and 4th respondent complied with the Deputy Registrar’s direction on the page limit; but the 1st respondent not only filed two sets of submissions but also exceeded the page limit of 15 pages; the submissions also did not follow the set font type, font size or the spacing required; this court in Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others, SC Application E029 of 2023) [2023] KESC 69 (KLR) struck out the applicants’ submissions for non-compliance with the rules and directions and cautioned against exceeding the permissible lengths of submissions; and
9.
Further noting the 1st respondent’s replying affidavit sworn by Wesley Robinson Gichaba, an advocate practicing at Gichaba and Company Advocates wherein he contends that; he was present in court together with Mr Bwire,Advocate, when the Deputy Registrar issued directions on filing documents including submissions; he does not recall the Deputy Registrar issuing a direction that parties should file a single set of submissions to both the preliminary objection and the petition; the preliminary objection and the petition are independent and special pleadings/documents diametrically opposed to each other and had not been consolidated and the assertion of one the filing of one set of submissions would prejudice the 1st respondent; the appellant chose to file a single set of submissions to his petition and preliminary objection and cannot blame the 1st respondent for not doing so; the appellant was not prejudiced as he had a right to file further submissions in rejoinder; the submissions in support of the preliminary objection and petition did not each exceed 15 pages; the application is an abuse of the court process and the submissions are properly on record; and
10.
Also noting the 1st respondent’s submissions dated November 6, 2023 wherein he reiterates the contents in support of the application and submits that; the preliminary objection is an independent and stand-alone document and not inferior to the petition, and therefore attracts its own responses and submissions; the submissions in regard to the petition were 14 pages and therefore did not exceed the limit of 15 pages; the circumstances in Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others(supra) are different and distinguishable because therein, the court found it irregular to file joint and separate submissions at the same time and therefore the decision cannot apply to this matter; and","11.
Having considered the applications, responses, and submissions before us,
We now opine as follows:
i.
Section 20(1) of the Supreme Court Act, 2011 grants the court the authority to admit further evidence in determining an appeal, where it considers necessary and appropriate. Section 20(2) provides as follows:
“
The court, in admitting additional evidence, shall consider whether the additional evidence —
a.
is directly relevant to the matter before the court;
b.
is capable of influencing or impacting on the decision of the court;
c.
could not have been obtained with reasonable diligence for use at the trial;
d.
was not within the knowledge of the party seeking to adduce the additional evidence;
e.
removes any vagueness or doubt over the case;
f.
is credible and bears merit;
g.
would not make it difficult or impossible for the other party to respond effectively; and
h.
discloses a case of wilful deception to the court.”
ii.
This court set the governing principles on allowing the filing of additional or new evidence in the case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others, SC Petition No 7 & 9 of 2018 [2018] eKLR as follows:
(a)
the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
b.
it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
c.
it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
d.
Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
e.
the evidence must be credible in the sense that it is capable of belief;
f.
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
g.
whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
h.
where the additional evidence discloses a strong prima facie case of willful deception of the court;
i.
The court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The court must find the further evidence needful.
j.
A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.
k.
The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”
iii.
Applying the above set principles, it is evidently manifest that the 2nd and 3rd respondents at all material times had knowledge of the existence of and were in actual custody of the additional or the so-called new evidence during the trial of the matter herein in the superior courts below. They admit that the additional or the so-called new evidence was in their custody and have not reasonably explained to this court why the said evidence was not produced before the trial court or is not part of the record despite the trial court having custody of the same. In any event, if it is true that, the polling station diary for Mapimo Youth polling station was in the custody of the trial court as alleged by Chrispine Owiye in his supporting affidavit, then why seek to adduce it as new and additional evidence at this point? Furthermore, it was upon them to adduce and point out the evidence and its relevance to the trial court- whether or not it was part of the record-and not wait until this second appeal to do so.
iv.
Having found that the 2nd and 3rd respondents not only had prior knowledge of, but were in actual possession of the additional or the so- called new evidence, it is our considered view that their attempt to adduce additional or new evidence before this court is intended to fill up omissions or patch up the weak points in their case which action, we refuse to countenance. Consequently, the application seeking to adduce additional evidence fails and is dismissed.
v.
We now turn to the 2nd application which sought striking out of the 1st respondent’s submissions. A perusal of the impugned submissions reveal that the 1st respondent filed two separate submissions, the submissions in respect of the appeal are 14 pages while the submissions in support of the preliminary objection are 12 pages.
vi.
We note that the Deputy Registrar’s directions issued on September 18, 2023 were clear that the 1st respondent ought to file composite submissions in respect of the appeal and the preliminary objection. The 1st respondent failed to comply with those directions but instead filed separate submissions for the preliminary objection and the appeal. The two add up to 26 pages and the explanation for doing so given is, with respect, escapist. Directions are given to ensure orderly conduct of proceedings and it is not for parties to choose which ones to comply with and which ones to disregard.
vii.
Consequently, as the submissions on the appeal go to the root of the dispute before us, we shall admit them but the 1st respondent’s submission in regard to the preliminary objection, filed outside the directions of the court, are hereby struck out.
viii.
As this ruling is limited to the application seeking leave to adduce additional and new evidence and the striking out of the 1st respondent’s submissions, the court will give directions on the 1st respondent’s preliminary objection at the hearing of the appeal and being on points of law only, the 1st respondent can still submit on the issues raised orally.
ix.
As regard costs, in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others, SC. Petition No 4 of 2012; [2013] eKLR it is settled that costs follow the event and that the court may in appropriate cases exercise discretion and decide otherwise. Given that the court has dismissed and partially allowed the applications, we find it judicious for each party to bear its own costs.
12.
Accordingly, we make the following orders:
a.
The notice of motion dated October 13, 2023 is hereby dismissed.
b.
The notice of motion dated October 25, 2023 is hereby partially allowed.
c.
The 1st respondent’s submissions dated October 12, 2023 in respect of the preliminary objection are hereby struck out.
d.
Each party shall bear its own costs.
13.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/1/eng@2024-02-16
Petition (Application) 6 of 2014,Outa v Okello & 3 others (Petition (Application) 6 of 2014) [2024] KESC 2 (KLR) (16 February 2024) (Ruling),Ruling,Supreme Court,Supreme Court,W Ouko,16 February 2024,2024.0,Nairobi,Civil,Outa v Okello & 3 others,[2024] KESC 2 (KLR),,"Upon perusing this motion brought pursuant to the provisions of sections 3A, 10(2), 21(2) & (4), 21A(a) and 23(2)(e) & (i) of the Supreme Court Act and rule 62(2) of the Supreme Court Rules, 2020 and the third schedule on Taxation of Costs, seeking that the certificate of costs signed and issued by the Deputy Registrar on October 9, 2023 be revoked; that the said certificate be corrected on the name of the 1st respondent to read Jared Otieno Odoto; and costs of this application; and
2.
Upon perusing the affidavit sworn by the 1st respondent on November 24, 2023, in support of the motion as well as the submissions by the 1st respondent dated November 24, 2023, to the effect that the appellant in its Bill of Costs named the 1st respondent as Jared Otieno Odoto who is a stranger to the proceedings; that the Bill of Costs was served upon the 1st respondent more than 8 years after it was lodged; that the appellant did not move the court in any way to have the name amended or altered; that subsequently, the Deputy Registrar delivered his ruling on taxation on June 9, 2023 having the appellant’s Bill of Costs taxed against Jared Otieno Odoto; that thereafter, the matter proceeded on a reference on taxation before Ouko, SCJ, who in his ruling of September 22, 2023, maintained the names in the appellant’s Bill of Costs; that on October 9, 2023, the Deputy Registrar issued a Certificate of Costs pursuant to the ruling of the single Judge with the 1st respondent’s name in the taxation proceedings changed to Jared Odoyo Okello; that this action was without a formal order and without notice and participation of the 1st respondent; and that the change of name was unprocedural and not aligned with the ruling of the Judge and is an attempt to review the decision of the Judge; and
3.
Noting that the appellant in his submissions and replying affidavit both filed on January 10, 2024, is opposed to the application on the grounds that: by the provisions of rule 62(2) of the Court’s rules the decision of a single Judge on a reference on taxation is final, therefore, the court lacks jurisdiction to entertain any further applications; further, that the 1st respondent as named in the petition of appeal is Jared Odoyo Okello who has participated in the proceedings all along; that even though the name in the Bill of Costs was erroneous, it does not change the identity of the 1st respondent; and that this application has no basis, is unknown in law and the same ought to be dismissed with costs; and","In view of the foregoing, I, now opine as follows:
4.
Bearing in mind that the taxation in dispute arose from an election petition in which Fredrick Otieno Outa, the appellant, was found to have been properly elected Member of Parliament for Nyando Constituency in the 2013 General Elections, and that his costs in the High Court, Court of Appeal and in this court were to be borne by Jared Odoyo Okello, the 1st respondent. There is no contest that the two main candidates in the elections of the year in question were Jared Odoyo Okello and Fredrick Otieno Outa, who ended up in the High Court and thereafter, moved their grievance to the Court of Appeal and finally to this court. The judgment of this court rendered on July 3, 2014 was in respect of the 1st respondent, named specifically as Jared Odoyo Okello and the appellant, Fredrick Otieno Outa. Those ought to have been the names in the subsequent taxation proceedings. Clearly, from this obvious background, the appellant in taking out the Bill of Costs, inadvertently mixed up the names, by calling the 1st respondent “Jared Otieno Odoto”. However, the final Certificate of Costs, which is the formal conclusive expression of the Court’s decision issued on October 9, 2023, correctly named the 1st respondent as Jared Odoyo Okello representing the true reflection of the judgment of this court rendered on July 3, 2014.
5.
Consequently, and for all the reasons explained, this application lacks substance and is, in my view, frivolous, vexatious and made in bad faith. This was clearly a case under the slip rule that did not have to take the course herein employed by the 1st respondent.
6.
The application, for these reasons, must fail and is hereby dismissed with an order that the 1st respondent shall bear its costs as costs are awarded at the discretion of the court.
7.
Accordingly, I order that:
i.
The motion dated November 24, 2023 be and is hereby dismissed; and
ii.
The 1st respondent shall bear the costs of this motion.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/2/eng@2024-02-16
Petition E001 of 2023,"Chitembwe v Tribunal Appointed to Investigate Into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court (Petition E001 of 2023) [2023] KESC 114 (KLR) (28 December 2023) (Judgment)",Judgement,Supreme Court,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",28 December 2023,2023.0,Nairobi,Civil,"Chitembwe v Tribunal Appointed to Investigate Into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court",[2023] KESC 114 (KLR),,"A. Introduction
1.
Judges are entrusted with a significant responsibility to uphold the principles of justice and maintain the integrity of the judicial and legal system. In their everyday lives, public or private, judges are expected to exhibit the highest standards of impartiality, fairness, and ethical behavior. They must remain unbiased and refrain from any actions or expressions that may compromise their objectivity. They must display a demeanor that commands respect and instills public confidence in the office of a judge. Maintaining independence from external influences is crucial to ensuring the credibility of the judiciary, and judges are obligated to resist any attempts at undue influence or interference. Transparency, diligence, and a commitment to upholding the rule of law are paramount in guiding judges in the proper conduct of their duties and fostering public trust in the legal system they represent.
2.
Although judges have guaranteed tenure until mandatory or early retirement age, they can be removed only for reasons and through the process outlined in the Constitution and the law. These principles are espoused not only in the oath of office of a judge but also in some of the international and regional human rights instruments which in turn are replicated in the Constitution and relevant statutes. Those international and regional instruments include the International Covenant on Civil and Political Rights (1966), the United Nations Basic Principles on the Independence of the Judiciary, 1985 Commonwealth Principles (Latimer House), 1988, African Charter on People and Human Rights, 1981.
3.
A judge can be removed from office only on specific grounds, namely the inability to perform the functions of office arising from mental or physical incapacity; a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament; bankruptcy; incompetence; or gross misconduct or misbehaviour. Where any or some of these grounds are alleged, the concerned Judge is entitled to due process before an independent tribunal is appointed to inquire into the alleged grounds. Similarly, should the tribunal recommend removal, the Judge has the right to challenge the decision of the tribunal through an appeal process to this court.
4.
The petition before us has been lodged pursuant to article 168(8) of the Constitution by the hon Mr Justice Said Juma Chitembwe, (the petitioner), a Judge of the High Court, who is challenging the decision of the tribunal that has recommended to the President his removal from office for gross misconduct.
B. Background
5.
The petitioner was appointed to the High Court as a Judge on April 2, 2009 and has an aggregate experience of 32 years in the legal profession, having been admitted to the Bar in 1991. He has served the nation in different court stations around the country.
6.
When the events giving rise to these proceedings came up, the petitioner was serving at the High Court Civil Division in Nairobi. In the month of November 2021, the attention of the Judicial Service Commission (the JSC) was drawn to several video recordings, social media posts, and audio cell phone recordings attributed to Hon Mike Mbuvi Sonko (Hon Sonko), the former Governor of Nairobi City County, in which the conduct of the petitioner was brought into question, because in the recordings he was exposed discussing with persons, including, Hon Sonko, the sale of property number Kwale/Galu/Kinondo/779 (parcel no 779) which had been the subject of a succession cause HC Succ Cause Malindi No 97 of 2015, In the matter of the Estate of Peter Werner (Deceased) over which the petitioner had presided as a Judge. Among the things discussed was the possible withdrawal of an appeal, Malindi Civil Appeal No 32 of 2018, Pacific Frontiers Seas Limited v Jane Mutulu Kyengo & another, that had been lodged against his decision in the said succession cause.
7.
In other video and audio recordings, the petitioner is presented discussing yet another matter with Hon Sonko, Mike Sonko Mbuvi Gideon Kioko & another v Clerk, Nairobi City County Assembly & 9 others Constitutional Petition No E425 of 2020 (consolidated with Petition No E014 of 2021) [2021] eKLR and Okiya Omtatah Okoiti & 9 others v Anne Kananu Mwenda (1st respondent/Cross-petitioner) & 6 others; Mike Mbuvi Sonko Kioko Gideon & 9 others (interested parties) Nairobi High Court Constitutional Petition No E005 of 2021 (consolidated with Petition No E433 of 2020, E007 of 2020, E009 of 2020, E011 of 2021, E012 of 2021, E013 of 2021, E015 of 2021, E019 of 2021 and E021 of 2021) (the consolidated petitions) in which Hon Sonko was the petitioner. The consolidated petitions were determined against hon Sonko by a three-judge bench presided over by the petitioner in a judgment rendered on June 24, 2021. The discussion in the recordings revolved around possible grounds of appeal against this judgment.
8.
Thereafter, on November 18, 2021, the petitioner appeared on a live television interview with Kenya Television Network (KTN) News, hosted by Ms Sophia Wanuna, in which the petitioner made various concessions and admissions. For example, he disclosed that both Mr Amana Saidi Jirani (Mr Jirani) and Hon Sonko, were his relatives or were personally known to him. Mr Jirani had been alleged in the video clips to be holding parcel no 779 as the petitioner’s proxy.
9.
Based on these episodes, JSC received the following complaints against the petitioner:
a.
Petition No 69 of 2021 by Imgard Biege and David Leboo Olekilusu
b.
Petition No 80 of 2021 by Stephen Owoko and John Wangai
c.
Petition No 91 of 2021 by Peter Agoro and Jacob Omondi
d.
Petition No 92 of 2021 by Francis Wambua.
All these petitions were subsequently withdrawn or terminated by those who had brought them under unclear circumstances.
10.
Following the withdrawal or termination of these petitions, and given the public interest generated by the social media posts, JSC resolved on November 22, 2021 to initiate, on its own motion, proceedings for the removal of the petitioner under the provisions of article 168(2) of the Constitution.","F. Analysis and Determination
80.
We start by restating the broad principles to be borne in mind when dealing with the question of removal of a judge. Those principles were outlined by this court in its maiden determination under article 168(8) in the case of Joseph Mbalu Mutava v Tribunal appointed to Investigate the conduct of Justice Joseph Mbalu Mutava, Judge of the High Court of Kenya, SC Petition 15 B of 2016; [2019] eKLR (Mutava case), and further summarized in the case of Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya, SC Petition 4 of 2020; [2022] KESC 16 (KLR) (Muya Case) as follows:
“
i.
Unlike its jurisdiction under article 163(4), the Supreme Court, as the first and only appellate court in such matters, has a more expansive jurisdiction since, it is required to re-evaluate and re-assess the evidence on record in order to establish whether the Tribunal misdirected itself leading to a wrong conclusion.
ii.
Judges are presumed to be independent and to act without the control of anyone in deciding cases before them.
iii.
Judges should always ensure that their conduct is beyond reproach in the eyes of a reasonable observer. They must always uphold the principle that justice must not only be done but be seen to be done.
iv.
Once the President has received a petition from the Commission, he is constitutionally bound to appoint a Tribunal.
v.
The standard of proof, whether in direct or circumstantial evidence, is one which is neither beyond reasonable doubt nor on a balance of probabilities.”
81.
Consequently, an appeal to the Supreme Court under article 168(8), can be likened to a primary appeal, affording the court broader authority to scrutinize and reassess the evidence presented. This process aims to validate the accuracy of the Tribunal’s findings regarding the application of factual matters to the law, even as the court acknowledges the Tribunal’s firsthand assessments of witnesses’ credibility. The court will exercise this authority to overturn factual conclusions with caution and will only do so if it is demonstrated that the Tribunal’s conclusions were not supported by evidence or if it is evident that the Tribunal failed to appreciate the weight or bearing of circumstances admitted or proved, or if the Tribunal was plainly wrong in its conclusion.
82.
We observe at the outset that the petitioner sought to persuade us to overturn the decision of the Tribunal on twelve (12) grounds, which were condensed into eight (8) in the written submissions but argued before us in two broad clusters. For our part, we think that, given the importance of the arguments in this petition, it is necessary and only appropriate to consider all the grounds as framed.
i. Whether the Tribunal had jurisdiction to review the proceedings before the JSC
83.
The petitioner has challenged the proceedings before the JSC on the basis that his constitutional right to fair administrative action under article 47 of the Constitution was not observed and to that extent, the Tribunal was duty-bound to make an inquiry and a determination as to the integrity of the proceedings before the JSC. The respondent opposes these arguments and instead affirms that the proceedings before the JSC were lawfully conducted in strict compliance with the tenets of fair administrative action under article 47 of the Constitution.
84.
According to article 168(2) of the Constitution, there are only two routes to initiate the removal of a judge.
“
The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission”. [our Emphasis].
85.
As a constitutional requirement, a petition to the JSC must be in writing, setting out the alleged facts constituting the grounds for the judge's removal. Upon receipt of the petition or upon considering the question of removal of a judge on its own motion, the JSC,
“
(4)
shall consider the petition and, if it is satisfied that the petition discloses a ground for removal under clause (1), send the petition to the President”. [our Emphasis]
86.
The standard to be attained before the petition is sent to the President is entirely subjective, depending on the material placed before the JSC. Whether the petition is filed by a person or where the JSC is in possession of some information, regardless of the source, pointing to a questionable conduct of a judge, it must consider the petition or the information and satisfy itself that the complaint discloses facts constituting grounds for the judge’s removal. The JSC is expected to evaluate the facts and only “if it is satisfied” that a ground or grounds for removal has/have been disclosed will it recommend to the President to constitute a Tribunal. The JSC is not simply a conduit pipe by which complaints are channeled to the President. It must be convinced that the complaint discloses prima facie evidence against the judge and that the complaint is serious enough to warrant a representation to the President. This is the threshold described by the Court of Appeal in Judicial Service Commission Mbalu Mutava & another (supra) as:
“
a preliminary inquiry to satisfy itself that the complaint is not frivolous, lacking in substance, unfounded or hypothetical. The inquiry is not intended to lead to a final decision but is only designed for receiving information for purposes of a recommendation on which a subsequent and final decision may be founded. As such, JSC does not conduct a formal hearing where witnesses are called and examined”. (per Ouko, JA as he then was, concurring)
87.
In considering whether a ground for removal has been disclosed, and being concerned only with prima facie evidence, the JSC is not required or expected to make definitive conclusions whether the allegations against the judge have been proved. It is expected to act in good faith, to accord the judge an opportunity to understand the accusations and to be guided by the provision of article 47 of the Constitution on the fair administrative action. It cannot be the JSC’s mandate to conduct a full-fledged inquiry, with witnesses being cross-examined. That is a preserve of the Tribunal where the actual hearing takes place.
88.
In November 2021, JSC’s attention was drawn to several video clips, social media posts, and cell phone recordings that were in the public domain. The recordings were attributed to hon Sonko and appeared to question the integrity of the petitioner. From the record, it is apparent that four complaints were filed against the petitioner with the JSC and later withdrawn. Due to the persistence of the allegations and because of the intense public interest elicited by recordings and social media postings, JSC resolved to initiate, on its own motion, proceedings for the removal of the petitioner from office. That course was perfectly permitted by the force of article 168(2) of the Constitution, which we have set out in the previous paragraph. Satisfied that the material and evidence placed before it disclosed prima facie grounds for the removal of the petitioner, JSC unanimously resolved to petition the President to appoint a Tribunal pursuant to article 168(4) and (5) of the Constitution. It is this process that the petitioner challenged, first before the Tribunal and now before this court.
89.
Following the petition by JSC and in exercise of the powers conferred by article 168(5)(b) of the Constitution as read with section 31 of the JS Act, HE Uhuru Kenyatta, the former President, suspended the petitioner from office and appointed a Tribunal to inquire into the allegations by Gazette Notice No 5540 of May 17, 2022, which read in the pertinent parts as hereunder:
“
Whereas the Judicial Service Commission has submitted to the President a Petition for the removal from office of the hon Justice Said Juma Chitembwe, Judge of the High Court of Kenya, under the provisions of article 168 of the Constitution.
…………
Now Therefore, having received and considered the Petition of the Judicial Service Commission and in exercise of the powers conferred by article 168(5)(b) of the Constitution of Kenya, as read together with section 31 of the Judicial Service Act, 2011, I, Uhuru Kenyatta, President and Commander in Chief of the Kenya Defence Forces, do hereby direct as follows:
1.
The hon Justice Said Juma Chitembwe, Judge of the High Court of Kenya, be and is hereby suspended from office with immediate effect; and
2.
A Tribunal to inquire into the matter be and is hereby appointed, constituted as follows …
3.
The mandate of the Tribunal shall be to consider the Petition for the removal of the hon Justice Said Juma Chitembwe from office that was submitted by the Judicial Service Commission and to inquire into the allegations therein”. [our Emphasis].
90.
The Tribunal’s jurisdiction is founded on article 168(7)(b) of the Constitution, as read with section 31 of the JS Act and the Second Schedule thereto. In appreciation of its mandate the Tribunal made the following observations:
“
818.
Article 168(7)(b) of the Constitution, as read with section 31 of the Judicial Service Act and the Second Schedule thereto, and in light of the said Gazette Notice, it is the Tribunal’s view that it was thereby mandated to a clear, specific constitutional jurisdiction restricted to inquiring into the matter and reporting on the facts in connection with the allegations made by the JSC. As the Gazette Notice reads, the Tribunal came into being after the appointing authority having received and considered the Petition of the Judicial Service Commission. Consequently, the President appointed the Tribunal ‘to inquire into the matter’. He mandated the Tribunal ‘to consider the Petition’ for the removal of the Judge the subject of the inquiry ‘that was submitted by the Judicial Service Commission and to inquire into the allegations therein’.
819.
That jurisdiction was pointed and specific. It did not and does not include an inquiry into the activities of or proceedings before the JSC. It was informed solely by the request made by the JSC.”
91.
We are in agreement with the above pronouncement and conclusion, save to only add that, just like jurisdiction is everything for a court of law, it is equally critical for a tribunal or any administrative body exercising quasi-judicial authority. Similarly, like a court of law, a tribunal can only exercise jurisdiction donated by statute or the Constitution. Since the Tribunal in these proceedings was a direct creation of a petition presented to the President, it would be an act of overreach for it to interrogate events that took place before its appointment. It had no such powers and therefore we agree with the conclusion reached by the Tribunal in that regard.
92.
But since heavy weather was made of article 47 of the Constitution, that the JSC did not accord the petitioner the right to an administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair, it is important to understand the evolution of administrative justice in Kenya. In Judicial Service Commission v Mbalu Mutava & another (supra), the Court of Appeal traced this development thus:
“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
93.
The Fair Administrative Action Act was eventually enacted to illuminate and expand the values espoused in article 47 aforesaid. It provides in section 4(3) the broad parameters to which bodies undertaking administrative action must conform to as follows:
“
(3)
Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-
a.
prior and adequate notice of the nature and reasons for the proposed administrative action;
b.
an opportunity to be heard and to make representations in that regard;
c.
notice of a right to a review or internal appeal against an administrative decision, where applicable;
d.
a statement of reasons pursuant to section 6;
e.
notice of the right to legal representation, where applicable;
f.
notice of the right to cross-examine where applicable; or
g.
information, materials and evidence to be relied upon in making the decision or taking the administrative action.”
94.
The proceedings before the JSC took the following form, from what is obvious to us on the face of the record:
a.
JSC initiated removal proceedings on its own motion based on the allegations regarding the conduct of the petitioner.
b.
Thereafter, JSC set up a committee of its members to consider its own motion alleged transgressions of the petitioner.
c.
The petitioner was informed of the allegations against him and furnished with the petition, witness statements, and evidence supporting the proceedings.
d.
The petitioner was represented by an advocate of his own choice.
e.
The Committee conducted its investigations and recorded witness statements.
f.
The petitioner was given ample time to prepare his defence and to respond to the allegations in the petition.
g.
The petitioner’s response to the petition being a preliminary objection was considered and determined.
h.
The Committee reported its findings to JSC who in turn submitted a petition to the President.
95.
To our mind, in conducting these proceedings, JSC was performing a quasi- judicial function. If the petitioner felt aggrieved by the conduct of the proceedings before JSC, which in his view amounted to a violation of his rights and fundamental freedoms, his recourse was not to the Tribunal that would be formed many months later but to the High Court, which has jurisdiction to determine questions of whether a right or fundamental right has been denied, violated, infringed, or threatened under article 165(3)(b) of the Constitution.
96.
The principles laid down by the court in Gladys Boss Shollei v Judicial Service Commission (supra) involving disciplinary proceedings against the former Chief Registrar of the Judiciary, cannot be applied in the proceedings involving a judge. While the principles enunciated in Gladys Boss Shollei v Judicial Service Commission (supra) were based on the provisions of section 32 of the JS Act, as read with regulation 25 of the third schedule to the Act (Provisions relating to the Appointment, Discipline and Removal of Judicial Officers and Staff), the instant proceedings were initiated under article 168(2) of the Constitution as read with section 31 of the JS Act. The two processes have very distinct considerations, one unique to a Judge and the other to a judicial officer.
97.
True to its constitutional mandate, the JSC ensured that the proceedings before it were conducted in consonance with the Constitution and the law, upholding the rules of natural justice and respecting the petitioner’s constitutional rights. In view of the foregoing, we find no basis upon which to conclude that the JSC violated the petitioner’s right to fair administrative action, nor can we fault the Tribunal for rejecting the invitation to interrogate the proceedings before the JSC.
Whether the Tribunal failed to uphold the doctrine of Judicial independence and immunity
98.
The petitioner contends that the totality of the examination of witnesses concerning the Malindi Succession Cause by both the Tribunal members and the lead counsel was tantamount to interrogating the merits of the decisions made by the petitioner as a result of which the Tribunal overstepped its mandate and assumed the role of an appellate court. What was more, according to the petitioner was the Tribunal’s erroneous finding that there was a reasonable apprehension that the petitioner would be biased against hon Sonko who was facing impeachment proceedings in the consolidated petitions; and that in those circumstances the petitioner ought to have disclosed this relationship to the hon Chief Justice, the other judges on the bench and the parties.
99.
The petitioner also took issue with the Tribunal’s finding, without proof, that he had acquired an interest in parcel no 779 through a proxy when Malindi Succession Cause, over which he was presiding was awaiting determination. Lastly, the petitioner faulted the Tribunal for finding, again without any proof, that he had engaged in subversion of justice by advising litigants on matters before the courts. The truth, according to the petitioner was that he handled the matters in question in good faith and in the lawful performance of his judicial function. Citing the proposition in the Supreme Court case of Bellevue Development Company v Francis Gikonyo & 3 others, SC Pt No 42 of 2018; [2020] eKLR that judicial immunity is a public policy that enables judges to freely express themselves in matters brought before them, without fear of reprisal or of being disciplined, prosecuted or harassed. In other words, a judge or a judicial officer, in exercising the authority vested in him or her, should be free to act upon his own convictions, without apprehension of personal consequences to himself.
100.
The import of article 160(5) of the Constitution is that a member of the judiciary is accorded judicial immunity for anything done or omitted to be done in good faith and in the lawful performance of a judicial function. The Constitution uses two key phrases: anything done or omitted to be done in good faith and in the lawful performance of a judicial function. The use of the two phrases was not idle but deliberate. Only things done by a judge in good faith and in the lawful discharge of the function of judicial office will merit protection. The antithesis to acting in good faith would be to act in bad faith, where a person acts dishonestly in the discharge of the functions of a judicial office. In other words, bad faith will be implied when the office-bearer has acted with a clear intent to deceive. This privilege will also be extended only when the action was done lawfully and in the performance of judicial duties. It is not available for acts done by a judge, or a judicial officer who are out on frolics of their own, going beyond the confines of what would normally be regarded as their judicial function. From a plain and textual reading of article 160(5) of the Constitution, and section 6 of the Judicature Act, judicial immunity is not absolute nor does it cover improper conduct aimed at furthering personal interests.
101.
The basic principles of judicial independence under the Constitution require, among other safeguards, that judges ought to enjoy absolute freedom from liability in respect of decisions taken in their judicial function, just as their security, remuneration, conditions of service, pensions, and the age of retirement are secured by the Constitution and the law. To that extent, judges are guaranteed tenure of office until attainment of retirement age; and, barring this, they can be removed only for specified reasons; incapacity or behaviour and other grounds that render them unfit to discharge their duties.
102.
Section 45 of the JS Act protects judicial officers from any personal culpability. They are not liable for any civil action or suit arising from anything done or omitted to be done in good faith. In the Penal Code too, in section 15, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions. Section 6 of the Judicature Act makes a similar provision to insulate a judge and judicial officer, so long as they act in good faith and within the confines of the law.
103.
In Bellevue Development Company v. Francis Gikonyo & 3 others (supra) we explained the rationale for judicial immunity and stated that:
“
(53)
The concept of judicial immunity is not without foundation. Judicial immunity is an important tenet in the delivery of justice and the maintenance of the rule of law.
……
(59)
The rationale for this judicial immunity is the preservation of independent decision-making capabilities of judicial officers; immunity for judicial acts is thus necessary so that judicial officers can make the sometimes controversial decisions that are their judicial obligation and mandate to make, independent of personal considerations, including fear of personal liability.”
104.
In determining this issue, the sole consideration is whether the petitioner should be accorded protection under article 160(5) aforesaid to extend to him the principles of judicial immunity.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/114/eng@2023-12-28
Petition E008 of 2023,Kenya Ports Authority v Munyao & 4 others (Petition E008 of 2023) [2023] KESC 112 (KLR) (28 December 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",28 December 2023,2023.0,Nairobi,Civil,Kenya Ports Authority v Munyao & 4 others,[2023] KESC 112 (KLR),,"a. Introduction
1.
The petition of appeal dated March 27, 2023 and lodged on March 31, 2023 was filed pursuant to certification by the Court of Appeal (Nyamweya, Lesitt & Odunga JJA) in its ruling dated March 3, 2023 as one involving a matter of general public importance under article 163(4)(b) of the Constitution. The appellant is challenging the entire judgement and orders of the Court of Appeal (Visram, Karanja & Koome (as she then was) JJA) in Civil Appeal No 134 of 2018 delivered on July 11, 2019.
2.
The petition raises the following substantive issue; the parameters of section 49 of the Employment Act and in particular the question of the nature and categories of wrongful dismissal and unfair termination the section applies to.
b. Background
3.
The appellant is a state corporation established under statute, Kenya Ports Authority Act, cap 391 and mandated to inter alia manage and operate the port of Mombasa and all scheduled seaports along Kenya’s coastline. The respondents were at the material time gantry operators employed by the appellant and were part of a larger group of approximately 94 gantry operators who had worked for the appellant for a period of between 14 and 30 years. For context, gantry is a large crane used to load and offload containerized cargo from ships.
4.
Prior to March, 2011, the gantry operators had demanded an increase in remuneration and a committee was formed comprising gantry operators' representatives and management to embark on a fact-finding mission by touring the various ports around the world to consider and make recommendations on the terms and conditions of the gantry operators. After its fact-finding mission, the committee proposed an increment of the gantry operators’ dues by Ksh 21,000/- which the gantry operators considered insufficient.
5.
According to the appellant, the respondents were part of a team of approximately 94 gantry operators who, on 29th and March 30, 2011, commenced a go-slow following their unsuccessful demands. The appellant alleged that in its daily report of moves each gantry crane made for the two days reflected a huge variation from other days; that as a result of the go slow, it failed to meet its delivery targets resulting in a crisis at the port which involved backlog and delays. The gantry operators were issued with warning letters and immediately thereafter interdicted. The interdiction letters relayed the appellant’s decision to suspend the operators pending investigations and also called on the gantry operators to show cause why they should not be dismissed on account of their conduct.
6.
Thereafter, the appellant carried out investigations to determine the gantry operators who were involved in the go slow and their level of involvement. Those found to have participated in the go slow either by actual participation or incitement were invited to attend a personal hearing on July 8, 2011. Following the hearings, the interdictions of 48 employees including the respondents were lifted. They were however issued with a warning for participating in the go slow; surcharged an amount equivalent to between two and half to three months basic salary; and further placed on a 24-month (2 year) probation.","d. Analysis and Determination
i. The nature and categories of wrongful dismissal and unfair termination that section 49 of the Employment Act applies to, and in particular; whether section 49 applies where an employee has not been dismissed or the contract of employment terminated.
43.
While analyzing how to determine the intention of a statute, the Court of Appeal in County Government of Nyeri & anor v Cecilia Wangechi Ndungu [2015] eKLR held that:
“Interpretation of any document ultimately involves identifying the intention of Parliament, the drafter, or the parties. That intention must be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim and purpose. To that extent, almost every issue of interpretation is unique in terms of the nature of the various factors involved. However, that does not mean that the court has a completely free hand when it comes to interpreting documents; that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as can be attained, bearing in mind that each case must be resolved by reference to its particular factors.”
44.
In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Pet No 26 of 2014; [2014] eKLR, this court opined that a purposive interpretation should be given to statutes so as to reveal the intention of the statute. The court observed as follows:
“
In Pepper v Hart [1992] 3 WLR, Lord Griffiths observed that the “purposive approach to legislative interpretation” has evolved to resolve ambiguities in meaning. In this regard, where the literal words used in a statute create an ambiguity, the court is not to be held captive to such phraseology. Where the court is not sure of what the legislature meant, it is free to look beyond the words themselves, and consider the historical context underpinning the legislation. The learned Judge thus pronounced himself:
“The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”
45.
Section 49 of the Employment Act provides for remedies for wrongful dismissal and unfair termination when it provides as follows;
1.
Where in the opinion of a labour officer summary dismissal or termination of a contract of an employee is unjustified, the labour officer may recommend to the employer to pay to the employee any or all of the following —
a.
the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service;
b.
where dismissal terminates the contract before the completion of any service upon which the employee's wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract; or
c.
the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.
2.
Any payments made by the employer under this section shall be subject to statutory deductions.
3.
Where in the opinion of a labour officer an employee's summary dismissal or termination of employment was unfair, the labour officer may recommend to the employer to —
a.
reinstate the employee and treat the employee in all respects as if the employees employment had not been terminated; or
b.
re-engage the employee in work comparable to that in which the employee was employed prior to his dismissal, or other reasonably suitable work, at the same wage
46.
With regard to awards under section 49, the legislature found it necessary to catalogue the factors to be considered in making an award as follows;
4.
A labour officer shall, in deciding whether to recommend the remedies specified in subsections (1) and (3), take into account any or all of the following—
a.
the wishes of the employee;
b.
the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination; and
c.
the practicability of recommending reinstatement or re- engagement;
d.
the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances;
e.
the employee’s length of service with the employer;
f.
the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;
g.
the opportunities available to the employee for securing comparable or suitable employment with another employer;
h.
the value of any severance payable by law;
i.
the right to press claims or any unpaid wages, expenses or other claims owing to the employee;
j.
any expenses reasonably incurred by the employee as a consequence of the termination;
k.
any conduct of the employee which to any extent caused or contributed to the termination;
l.
any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; and any compensation, including ex gratia payment, in respect of termination of employment paid by the employer and received by the employee.
m.
any compensation, including ex gratia payment, in respect of termination of employment paid by the employer and received by the employee.
47.
Section 50 of the Employment Act also provides that in determining a complaint or suit under the Act involving wrongful dismissal or unfair termination of the employment of an employee, the industrial court shall be guided by the provisions of section 49.
48.
Part VI of the Employment Act makes a distinction between wrongful dismissal and unfair termination. A termination of employment by an employer is unfair in terms of section 45, if the employer fails to prove;
a.
that the reason for the termination is valid;
b.
that the reason for the termination is a fair reason—
i.
related to the employee’s conduct, capacity or compatibility; or
ii.
based on the operational requirements of the employer; and
a. that the employment was terminated in accordance with fair procedure.
49.
Section 46 of the Employment Act provides occurrences that do not constitute fair reasons for dismissal or for the imposition of a disciplinary penalty. Specifically, it will be unfair if it relates to; (i) a female employee’s pregnancy, (ii) the going on leave of an employee, (iii) an employee’s membership of a trade union, (iii) the participation of an employee in the activities of a trade union, (iv) the employee’s seeking office in a trade union, or his refusal to join or withdraw from a trade union, (v) an employee’s race, colour, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status or disability, (vi) an employee’s initiation of a complaint or legal proceedings against the employer unless done irresponsibly, or (vii) an employee’s participation in a lawful strike.
50.
Wrongful dismissal therefore occurs when the employee is dismissed without notice or with inadequate notice. The rationale of giving notice is to offer the affected parties’ time, either to search for alternative employment or for the replacement of an employee, respectively. The parties, when entering into the contract of employment, may have agreed on the requirement of notice of termination of the contract.
51.
In Ken freight (EA) Limited v Benson K Nguti SC Pet No 37 of 2018 [2019] eKLR this court explained the applicability of the provisions of section 49 as hereunder;
“
…..What then should be the correct award on damages be based on? Having keenly perused the provisions of section 49 of the Employment Act, we have no doubt that once a trial court finds that a termination of employment as wrongful or unfair, it is only left with one question to determine, namely, what is the appropriate remedy? The Act does provide for a number of remedies for unlawful or wrongful termination under Section 49 and it is up to the judge to exercise his discretion to determine whether to allow any or all of the remedies provided thereunder. To us, it does not matter how the termination was done, provided the same was challenged in a court of law, and where a court found the same to be unfair or wrongful, section 49 applies….”
52.
The Constitution of Kenya equally provides for labour relations under article 41;
41.
Labour relations
1.
Every person has the right to fair labour practices.
2.
Every worker has the right—
a.
to fair remuneration;
b.
to reasonable working conditions;
c.
to form, join or participate in the activities and programmes of a trade union; and
d.
to go on strike.
3.
Every employer has the right—
a.
to form and join an employers organisation; and
b.
to participate in the activities and programmes of an employers organisation.
4.
Every trade union and every employers’ organisation has the right—
a.
to determine its own administration, programmes and activities;
b.
to organise; and
c.
to form and join a federation.
5.
Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.
53.
Black’s Law Dictionary 9th edition defines unfair labour practice as follows;
“Any conduct prohibited by state or federal law governing the relations among employers, employees, and labour organisations. Examples of unfair labour practices by an employer include (1) interfering with protected employee rights, such as the right to self-organization, (2) discriminating against employees for union related activities, (3) retaliating against employees who have invoked their rights, and (4) refusing to engage in collective bargaining. Examples of unfair labour practices by a labour organization include causing an employer to discriminate against an employee, engaging in an illegal strike or boycott, causing an employer to pay for work not to be performed (ie featherbedding), and refusing to engage in collective bargaining….”
54.
In Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute [2013] eKLR the court explained the concept of unfair labour practice and its application under article 41 thus;
“
What is this right to fair labour practices? First, it is the opinion of the court that the bundle of elements of “fair labour practices” is elaborated in article 41(2), (3), (4) and (5) of the Constitution……..These constitutional provisions constitute the foundational contents of the right to fair labour practices…………
Secondly, it is the opinion of the court that the right to “fair labour practices” encompasses the constitutional and statutory provisions and the established work place conventions or usages that give effect to the elaborations set out in article 41 or promote and protect fairness at work. These include provisions for basic fair treatment of employees, procedures for collective representation at work, and of late, policies that enhance family life while making it easier for men, women and persons with disabilities to go to work.”
55.
From the above definition unfair labour practice encompasses all conduct prior to, in the course of employment, during and after termination of employment. The provisions of article 41 therefore encompass the full spectrum of labour practices. The provisions of article 41 are borne from the realization that employment and/or right to work is a human right. The right is also linked to other rights in the bill of rights more so the protection of life and the dignity of a person. The right is therefore a principle with legal obligations.
56.
Whereas the Employment Act is expressive of the rights under Article 41, we find that damages under the head of article 41, as a constitutional provision, ought to be specifically pleaded and proved. Any other constitutional provisions that would have been infringed can equally be canvassed, alongside, and, under this head. This is different and distinguishable from the provisions under section 49 as read with section 50 of the Employment Act which are limited to the provisions under the Employment Act. The wording of the Employment Act under section 49 only relate to an instance where an employee has been terminated. This court determined in Ken freight (E.A) Limited v Benson K. Nguti (supra) that section 49 of the Employment Act is applicable upon the finding that a person has been unlawfully terminated.
57.
As to the nature and categories of wrongful dismissal and unfair termination that section 49 of the Employment Act applies to, the provisions of part V of the Employment Act refer to almost all instances of employment and circumstances that lead to termination of employment. What about instances that necessarily don’t lead to termination of employment? Some provisions of the Employment Act refer to such circumstance providing penalties and sanctions therein. One such instance is set out in part VII of the Employment Act; this is a distinct section of the Act that focuses on protection of children. The Labour Relations Act, 2007 at Part X deals with lock- out and strikes. The Labour Relations Act also provides for conciliation as a method of dispute resolution. The Work Injury Benefits Act 2007 provides for compensation to employees for work related injuries and diseases contracted in the course of their employment and for connected purposes with the ELRC in the instance of the Labour Relation Act and the Work Injury Benefits Act acting as an appellate court and an enforcer.
58.
Does it therefore limit a judicial officer from relying on the principles outlined in section 49 in deciding a matter not set out in the Employment Act and which necessarily don’t lead to termination of employment. It all reverts back to the powers granted to the court under section 12 of the Employment and Labour Relations Act. Section 12 (3) of the Act grants the ELRC powers to make any of the following orders—
i.
interim preservation orders including injunctions in cases of urgency;
ii.
a prohibitory order;
iii.
an order for specific performance;
iv.
a declaratory order;
v.
an award of compensation in any circumstances contemplated under this Act or any written law;
vi.
an award of damages in any circumstances contemplated under this Act or any written law;
vii.
an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the court thinks fit to impose under circumstances contemplated under any written law; or
viii.
any other appropriate relief as the court may deem fit to grant.
59.
The wording of section 12 grants the employment and labour relations court power to issue such orders as contemplated under the Act and any other written law, it also grants the court jurisdiction to issue any appropriate relief as it may deem fit. The Black’s Law Dictionary 9th edition at page 534 defines judicial discretion as follows:
“
the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right”
60.
From the above analysis and the wording of section 49, it is clear to us that section 49 applies to only instances as have been set out under the Act; section 49 only applies where an employee is terminated; in any other instance the court is expected to exercise its discretion as granted by the Constitution, the Employment and Labour Relations Act and any other statutory provisions. In exercising such judicial discretion, a judge or magistrate bears the burden of accounting for their decision and in order to discharge this burden, the judge or magistrate ought to explain the basis of their decision.
61.
How then do we relate the above analysis to the appeal before us, the appellant contends that the Court of Appeal was wrong in their reliance on the provisions of section 49 of the Employment while clearly in this case the respondents were not dismissed from their employment. The genesis of the dispute between the parties was that the respondents were alledged to have been in a go-slow between March 29, 2011 to March 31, 2011. A go-slow is a form of industrial action in which work or progress is deliberately delayed or slowed down. Both superior courts found that there was no indication that the 1st and 5th respondent participated in the go-slow. The courts equally found that due procedure was not adhered to and that the disciplinary measures taken by the appellant were not anchored in law nor in the disciplinary handbook. The Employment court issued a sum of Kes 800,000/= on account of general damages for unfair labour practices. The Court of appeal on the other hand relied on the provision of section 49 of the Employment Act and reversed the award of general damages to 4 months gross salary in favour of the 1st and 5th respondent and 1 month’s gross salary in favour of the 2nd, 3rd & 4th respondent.
62.
Despite the internal dispute mechanisms between the parties, the Human Resource manual at clause 1.6. (v) allowed an employee to invoke the provisions of the Labour Relations Act, 2007. Section 2 of the Labour Relations Act defines a trade dispute to mean a dispute or difference, or an apprehended dispute or difference, between employers and employees, between employers and trade unions, or between an employers’ organisation and employees or trade unions, concerning any employment matter, and includes disputes regarding the dismissal, suspension or redundancy of employees, allocation of work or the recognition of a trade union. Section 62 of the Labour Relations Act mandates the reporting of a trade dispute to the minister who thereafter appoints a conciliator. If the parties fail to reach a consensus section 73 allows an aggrieved party to file a claim at the Employment and Labour Relations Court. Section 76 also allows an aggrieved party to take part in a protected strike after issuing a seven-day notice.
63.
The parties herein only refer to a private conciliation whereby they undertook a case study of other jurisdictions and an increment of wages was made. This, as alleged by the appellant, did not auger well with the respondent and they resolved to participate in a go-slow. From the reading of the Labour Relations Act, the immediate recourse was to report the aforesaid go-slow to the minister who would then have appointed a conciliator. Had the conciliation fell through then the matter would have been referred to the Employment and Labour Relations Court.
64.
Looking at the Disciplinary Handbook the same provides for various forms of punishment listed as follows; (a) verbal caution or warning, (b) suspension from duty for a period not exceeding three (3) days, (c) stoppage of annual increments (d) surcharge (e) termination of contract (f) forfeiture of appointment (g) retirement/termination on public interest (h) dismissal. We therefore, agree with the superior courts that redeployment was not one of the punishments envisaged in the disciplinary handbook; we also agree that the appellant did not equate the loss incurred, and the surcharge was arbitrary and not in conformity with the disciplinary handbook which provided for a maximum of three-months surcharge.
65.
Were the superior courts then justified to issue general damages in favour of the respondents and if so, what criteria should the courts have adhered to. While the action in the trial court started its life as a constitutional petition the same changed character to an ordinary cause. The trial court did not particularise the various rights allegedly violated but dealt with the same under the respective reliefs sought ultimately awarding general damages of Kes 800,000/= in favour of the appellant. The Court of Appeal on the other hand found that the trial judge did not ascertain how he came to the award issued on account of general damages. In reversing the decision, the court relied on the provisions of Section 49 to justify its award.
66.
The petition and amended plaint were clearly anchored on article 41 of the Constitution; the predominant claim was a claim for unfair labour practice. The respondent urges the court to rely on the claim for breach of contract; however, in the amended plaint the particulars of breach were not set out. The immediate recourse under article 41 is to rely on section 12 of the Employment and Labour Relations Act which grants the court power to issue an award of compensation in any circumstance contemplated under the Act or any other written law.
67.
As we have found above the activities are linked to an alleged go-slow. We have already set out the procedure that the parties ought to have undertaken before commencing the claim. We have arrived to the same finding that due procedure was not adhered to by the appellant; this justified a claim for unfair labour practice. We note that the appellant suffered loss as a result of the go- slow, the same was however not quantified. Contributing of the loss was only apportioned to the 2nd, 3rd and 4th respondent.
68.
It is our view that, where the court finds that the matters complained of was to any extent caused or contributed to by an action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. Intentional conduct is regarded as a necessary prerequisite for reduction of compensation. Variation of an amount of compensation, therefore largely depends on the extent of contributory circumstances but does not bar recovery. In any industrial action the conduct of an employee in causing such industrial action to take place can be regarded as contributory fault.
69.
We have considered the parameters the Court of Appeal applied in the exercise of its discretion. Despite the Court of Appeal’s reliance on the provisions of section 49, in assessing the damages; their determination was pegged on the contribution of the respondents to the industrial action, the same applied in the Court of Appeal’s award on costs, the court reversed the decision upon a finding that both parties partly succeeded in their claims, we therefore find no fault in the award issued and we shall therefore not disturb the same. We arrive at the finding that the appeal therefore succeeds only to the extent that the Court of Appeal erred in its application of section 49 of the Employment Act.
ii. Whether the respondents’ cross appeal is valid.
70.
The grounds raised by the appellant contesting the validity of the cross- appeal are three- fold; the cross appeal does not fall under article 163(4)(a) of the Constitution; the cross appeal had not been certified by either the Court of Appeal of Supreme Court pursuant to article 163(4)(b) of the Constitution and section 15B of the Supreme Court; and, rule 47 of the Supreme Court Rules does not confer jurisdiction on the Supreme Court as a second appellate court as this would be inconsistent with articles 163(4)(a) and (b) of the Constitution and sections 15A and 15B of the Supreme Court Act.
71.
The respondents align to the submission that the provisions of rule 47 of the Supreme Court Rules are not limited to appeals filed as of right; the rule equally applies to appeals filed upon certification that a matter is of general public importance.
72.
Rule 47 of the Supreme Court Rules provide as follows;
47.
Notice of cross-appeal
1.
A respondent who intends to cross-appeal shall specify the grounds of contention, and the nature of the relief that the respondent seeks from the court.
2.
The respondent shall—
a.
provide contact details including the names, postal address, telephone number and email address of any persons intended to be served with the notice; and
b.
lodge eight copies of the memorandum of appeal and record of appeal in the registry within thirty days of service upon the respondent, or not less than thirty days before the hearing of the appeal, whichever is the later.
3.
An application or notice to cross-appeal shall be as set out in Form I of the First Schedule.
4.
In a criminal appeal, the Registrar of the court or tribunal from which an appeal originates shall prepare the record of appeal, and cause copies to be served upon the parties and to the Registrar.
73.
This court in the case of Communications Commission of Kenya & 3 others v Royal Media Services Limited & 7 others, SC Petition No 14 of 2014; [2014] eKLR and more recently in IEBC v Sabina Chege SC Pet No 23 (E026) of 2022 (delivered on September 12, 2023) (unreported) determined that a cross appeal is an action by a respondent, who intends to counter an appellant’s cause in an appeal, with the view of obtaining certain relief(s) from the court and the same is filed pursuant to rule 47 of the Supreme Court Rules, 2020. Further this court in the case of Senate & 3 others v Speaker of the National Assembly & 10 others, (Petition 19 (E027) of 2021); [2023] KESC 7 (KLR) and again in the case of IEBC v Sabina Chege (supra) the court held that pursuant to rule 47(2)(b) a respondent who intends to cross appeal is expected to lodge eight copies of the memorandum and record of appeal and not rely on other parties’ pleadings as they have prayed. Failure to comply with rule 47 renders a cross appeal incurably defective.
74.
The Black’s Law Dictionary, 9th ed (at page 133) defines “cross- appeal” as follows:
“
to seek review (from a lower court’s decision) by a higher court” And “cross-petition” (p 433) as follows:
“i.
a claim asserted by a defendant against another party to the action;
iii.
claim asserted by a defendant against a person not a party to the action for a matter relating to the subject of the action.”
75.
In Communications Commission of Kenya & 3 others v Royal Media Services Limited & 7 others, SC Petition No 14 of 2014; [2014] eKLR we had this to say regarding filing cross-appeals and cross-petitions;
“
…From the above definitions, there is a difference between a cross-appeal and a cross-petition. A cross-appeal is an action by a respondent, who intends to counter an appellant’s cause in an appeal, with the view of obtaining certain relief(s) from the court. A cross-petition on the other hand, is an action by a defendant in first-instance claims, intending to counter the claim of a petitioner with the view of obtaining certain remedies. The applicant, therefore, does not bear the right to file a cross-petition or even a cross-appeal, as this is a preserve of a respondent who has a claim against another party already in the appeal (cross-appeal), or another party to the suit (cross-petition)……”
76.
In Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others (supra) held that a cross appeal must at the onset fall within the jurisdictional sphere of the court as set out in the constitutionand must be limited to issues not already addressed by the appeal or those that cannot be argued during the appeal as a response. The court went on further to distinguish an appeal filed under article 163(4)(b) when it held as follows;
(181)
Where the appeal requires certification as being a matter of great public importance under the provisions of article 163(4)(b) of the Constitution, it is our position that during such certification, the respondent is at liberty to raise the cross appeal and the grounds applicable for such. In that instance, should the Court of Appeal or Supreme Court dealing with the certification find that the ground raised either in the application for certification and/or cross appeal qualifies as raising great public importance, then the issues and grounds will be framed as such to form the basis of certification of the appeal to the Supreme Court. With such certification, as may be reviewed by the Supreme Court where necessary, the respondent will be at liberty to file the cross appeal in accordance with the Supreme Court directions.……”
77.
Probing the cross-appeal before us, the respondent lodged the appeal together with eight copies of memorandum of appeal and record of appeal; certification was not sought for grounds raised in the cross-appeal. Nevertheless, the grounds raised in the cross-appeal urged the court to re-assess the factual dispositions and make a finding that the respondents are entitled to special damages; the grounds clearly do not relate to the issue for consideration before us, being the parameters of the application of section 49 of the Employment Act. The grounds of the cross-appeal do not raise any constitutional questions for determination or interpretation of the Constitution.
Further, even if we were to make a finding that the same fits within the parameters of the question certified, we have already decided on the appeal and made findings with regard to the issues raised in the cross-appeal.
78.
On costs, we are guided by the decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Pet No 4 of 2012 [2014] eKLR which held that an order on cost is a judiciously-exercised discretion of the court, accommodating the special circumstances of the case, while being guided by ends of justice considering the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation. Accordingly, we order that each party bears their own costs.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/112/eng@2023-12-28
Petition E007 of 2023,Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko",28 December 2023,2023.0,Nairobi,Civil,Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties),[2023] KESC 113 (KLR),,"A. Introduction
1.
The Petition of Appeal dated March 16, 2023and lodged on March 20, 2023is brought pursuant to the provisions of article 163(4)(a) of the Constitution. The appellant seeks orders to set aside the Judgment of the Court of Appeal at Kisumu (Kiage, Mumbi Ngugi & Tuiyott, JJ A) in Civil Appeal No E042 of 2021 delivered on February 7, 2023, which affirmed the decision - a Ruling-by the Environment and Land Court (ELC) at Kisumu (Ombwayo, J) - in ELC Petition No 7 of 2020 delivered on 2nd February 2021.
B. Background
2.
Abidha Nicholus, the appellant, is the registered proprietor of LR No Siaya/Ramba/788 and also has interest in the lower parts of LR No Siaya/Ramba/719 and 720, both bordering River Odundu, Ramba in Rarieda Sub-County within Siaya County. The appellant claims that in 2018, the 2nd and 3rd respondents proceeded to survey LR No Siaya/Ramba/716, which contained a shaft left by entities that had previously engaged in mining activities between 1988 and 2008 in the Ramba area. After the survey, in 2019, the 2nd and 3rd respondents commenced mining operations in the area including on LR No Siaya/Ramba/716.
3.
The appellant further claims that, he and other concerned parties questioned Joseph Andeere Nyaanga and Owang Isaak Ogweyo, the 2nd and 3rd respondents’, respectively, on the licenses/permits or authorizations issued for the mining activities. Their concerns were allegedly ignored by the 2nd and 3rd respondents.
4.
Appalled by the non-response to their concerns, on April 9, 2019, the appellant on his behalf and also on behalf of members of Ramba Community, while invoking the provisions of article 35(1) of the Constitution, and with the intention to conserve the environment, wrote to officers of the Ministry of Petroleum and Mining, Ministry of Environment and Forestry and National Environmental Management Authority(NEMA), the 4th, 5th and 6th respondents, requesting information about the mining activities that were being carried out in the Ramba area. The 4th and 5th respondents did not respond to the letter and also failed to give any explanation as to why they so declined.
5.
Undeterred, on July 23, 2019, the appellant wrote to the Ombudsman/Commission on Administrative Justice (CAJ), the 2nd interested party, seeking its intervention in highlighting the appellant’s grievance by reporting the 4th, 5th and 6th respondents’ failure to respond to his letter, or even giving explanation for such failure. The appellant’s letter prompted CAJ to write to the 4th, 5th, and 6th respondents demanding an explanation on the issues raised in the letter dated July 23, 2019.
6.
The action by CAJ provoked NEMA to respond through a letter dated 26th August 2019 whereby it confirmed that the 2nd and 3rd respondents were indeed conducting mining activities in Ramba and had submitted an Environmental Impact Assessment (EIA) Report for an existing small-scale artisanal gold mine at San-Martin, Ramba, specifically on LR No Siaya/Ramba/711, which activity was illegal for want of authorization from NEMA and that of the 4th respondent, the Ministry of Mining and Petroleum. NEMA further confirmed that Environmental Impact Assessment (EIA) Report No NEMA/PR/5/2/22027 had not been approved and proceeded to issue a stop order halting the operations of the 2nd and 3rd respondents effective July 31, 2019.
7.
The stop orders notwithstanding, according to the appellant, the 2nd and 3rd respondents continued with their mining operations. In or around June 2020, the appellant claims that he received information that the 4th respondent had renewed prospecting license No PL/2019/0226 covering Ramba Area for an entity known as AfriOre International (Barbados) Ltd, which license was later transferred to Acacia Exploration Kenya Limited. NEMA then issued Environmental Impact License No NEMA/EIA/PSL/9290 over the same area, to another entity not related to the 2nd and 3rd respondents. The appellant proceeded to inquire from Acacia Exploration Kenya Limited on whether the activities it was carrying out were connected to the 2nd and 3rd respondents. Acacia Exploration Kenya Ltd denied any connection with the 2nd and 3rd respondents.
8.
Consequently, on July 2, 2020, the appellant again wrote to the 1st, 5th, 6th, and 7th respondents informing them about the irregular mining activities by the 2nd and 3rd respondents and also raised other issues, namely; the need to identify the investors in the mining activities; public participation prior thereto, if any; lack of licenses/permits or approvals from the 4th and 5th respondents; insecurity and health issues; child labour and non-compliance with labour laws; demarcation of public utilities; environmental impact assessment; environmental degradation/pollution to land, air, water, and associated flora and fauna-as well as the human environment; individual health and safety, local community lifestyles, cultural survival, social order and economic wellbeing; disposal of wastes and effluent in the nearby river; the benefits from the royalty which the local community is entitled to under the Mining Act; and post mining rehabilitation planning. Even after raising all these issues, the appellant’s letter was not responded to.
9.
The appellant furthermore claims that the 1st, 4th, 5th and 6th respondents have continued to issue licenses since 1988 for mineral rights in Ramba area thereby causing harm and loss to residents of the area.
10.
The appellant also claims that the 2nd and 3rd respondents invaded his property, LR No Siaya/Ramba/788 and have since proceeded to excavate and mold concretes therein. Additionally, the 2nd and 3rd respondents together with the 8th respondent have trespassed onto the land, dug holes and erected electricity poles thereon, without the appellant’s consent.
11.
The appellant adds that the 2nd and 3rd respondents have continued to damp waste and/or effluent from their mining shaft on LR No Siaya/Ramba/788 as well as LR Nos Siaya/Ramba/719 and 720 posing health risks. Further, that the 2nd and 3rd respondents positioned their agents and workers to process ore/ and or gold into the nearby parcels of land which overflow into the subject land and also drain into the river without taking any safety precautions or measures. And that the excavation, molding of concretes, installation of structures by the 2nd and 3rd respondents and erection of electricity poles by the 8th respondent are acts of trespass.
12.
The appellant lastly avers that the 1st, 4th, 5th, 6th, 7th respondents and 8th respondents, by their acts, deprived him and other members of Ramba area of equal enjoyment and protection of the law by allowing unlicensed/unpermitted mining activities and wanton destruction of the environment.","F. Analysis
i. Whether the appellant has properly invoked this court's jurisdiction under article 163(4)(a) of the Constitution.
65.
The respondents have questioned the jurisdiction of this court to hear and determine this matter. They urge that there is nothing of constitutional interpretation and/or application in the appeal invoking this Court’s jurisdiction under article 163(4)(a) of the Constitution. Specifically, the 1st, 4th, 5th & 7th respondents assert that the appellant cannot invoke this Court’s jurisdiction under article 163(4)(a) when both the ELC and the Court of Appeal lacked the mandate to examine the merits of the dispute. The 3rd respondent further adds that there is no constitutional provision that was misinterpreted by the superior courts, while the 8th respondent contends that this appeal relies on an interlocutory decision of the superior courts that did not address substantive constitutional issues.
66.
On our part, we are alive to the fact that the appellate jurisdiction of this court is as set out in article 163(4) of the Constitution, which provides that:
“
Appeals shall lie from the Court of Appeal to the Supreme Court;
(a)
as of right in any case involving the interpretation or application of this Constitution; and
(b)
in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).""
67.
As to what constitutes a matter involving interpretation and application of the Constitution, our approach has always been that a specific provision(s) of the Constitution must have been an issue for interpretation and/or application by both the High Court and courts of equal status as well as the Court of Appeal. In the Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Anor SC Petition No 3 of 2012 [2012] eKLR, we thus delineated our jurisdiction under article 163(4)(a) of the Constitution as follows:
“
... This article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court ...
(28)
The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation ...""
68.
Similarly, our decisions in Erad Suppliers & General Contractors Ltd v National Cereals & Produce Board SC Petition No. 5 of 2012 [2012] eKLR, Hassan Ali Joho & Another v. Suleiman Said & Others SC Petition No 10 of 2013 [2014] eKLR and Gatirau Peter Munya v Dickson M Kithinji & Others SC Application No 5 of 2014, [2014] eKLR (The Munya 1 case) settled the issue as we held that appeals are admissible before this Court if it can be demonstrated that the matter involved the interpretation or application of the Constitution and had been the subject of litigation before the High Court and the Court of Appeal and then risen through the judicial hierarchy on appeal.
69.
In John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others; SC Petition No. 17 of 2015; [2019] eKLR (John Florence Maritime Services), we specifically held as follows:
“
... As to what constitutes a matter involving interpretation and application of the Constitution, the conventional approach is that a particular provision of the Constitution must have been in issue for an interpretation and/or application from the High Court and the Court of Appeal ...""
70.
However, there is a broader approach as to what would constitutes a matter involving constitutional interpretation or application, where, even if a specific constitutional provision is not directly in question, the appellant must demonstrate that the court’s reasoning and conclusions led to a determination that can be considered a trajectory of constitutional interpretation or application. In the Munya 1 case, supra this court thus expounded on this broader approach while relying on its earlier decision in Peter Oduor Ngoge v Francis Ole Kaparo & 5 Others, SC Petition No 2 of 2012 [2012] eKLR case, where the court stated at [paragraph] 69:
“
The import of the court’s statement in the Ngoge case is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application."" [Emphasis own]
71.
From our finding in the Munya 1 case the focus should not therefore solely be on the explicit mention of a constitutional provision but also the overall context and impact of the court’s reasoning in relation to constitutional matters. In John Florence Maritime Service, supra, we added that the court should not have a narrow mind when evaluating whether a matter raises a constitutional issue, and that the search for constitutional issues should extend beyond specific constitutional provisions. It was our determination in that regard that:
“
[34]
It therefore emerges that in evaluating whether a matter raises a constitutional issue of interpretation and/or application, this court should not be narrow-minded in its inquiry. The quest for discovery should not start and stop with a determination of whether or not there is a specific provision of the Constitution that was at issue before the Superior courts. Instead, there is need for a holistic inquiry of all the various facets of the law as pleaded by the parties if they do indeed raise a constitutional question. This is the constitutional trajectory that requires a look at a court(s)’ reasoning and even the processes and procedures adopted by a court in its proceedings.”
72.
Consequently, it is our view that a determination of whether an appeal before us satisfies the criteria for invoking the Court’s appellate jurisdiction is not governed by rigid principles. Instead, it is a power exercised by the court on a case-by-case basis but within the confines of the Constitution and statute. In that regard, this was our finding in John Florence Maritime Services, supra:
“
[39]
It again follows that a determination of whether a matter has met the appellate jurisdictional threshold embodied in article 163(4)(a) of the Constitution is not based on principles cast in stone. This is a discretionary mandate and power that the Supreme Court exercises judiciously on a case to case basis. Therefore, where a litigant before this court alleges that in exercise of their constitutional mandates, the Superior Courts contravened the Constitution in the conduct of their proceedings, in protecting the Constitution that is the embodiment of the aspirations of the People of Kenya, this Court may assume jurisdiction to correct such an anomaly.
[40]
It should be noted that it does not follow as a matter of cause that where a litigant, like the appellants before us, files a Petition of appeal, which appeal prima facie triggers the discretion of this Court and the court assumes jurisdiction, that that appeal must succeed. Assumption of jurisdiction is a legal question at the discretion of this court. On the contrary, succession or otherwise of an appeal is a factual issue determined on merit on the basis of the peculiarity of each case and how those facts are applied to the law.”
73.
To put the above findings in context, in John Florence Maritime Services, supra, the respondents had urged the court to strike out the appellant’s case for want of jurisdiction, since its case before the High Court had also been struck out for being res judicata. The appellant however urged this court to find that, as a consequence of the res judicata finding, his right to a fair hearing under article 50(1) of the Constitution was denied. It was our finding that, should the appellant prove that the determination of its claim by the High Court took a constitutional trajectory then we would seize jurisdiction and interrogate the merits of his appeal and specifically stated thus:
“
[35]
Consequently, to para-phrase what we laid out in the Joho case, a question regarding the interpretation and application of the Constitution may arise from a multiplicity of factors and not necessarily an interpretation and application of a specific provision of the Constitution. Upon consideration, we are inclined to find that the Appellants’ case fits this bill. While the High Court and Court of Appeal were only charged with a common law doctrine of res judicata, it is alleged that the manner in which the High Court applied the doctrine in its proceedings infringed upon article 50(1) of the Constitution, by denying the Petitioners a right to be heard.
[36]
Such a contention by a litigant before this court draws the court’s attention particularly given the fact that the right to Fair hearing provided for by article 50(1) of the Constitution is a non- derogable right under article 25 of Constitution. If the petitioners’ contentions were to be found to have merit, then it cannot be otiose to conclude that, the determination of the High Court took a constitutional trajectory by infringing on a fundamental right. The appellants’ allegations, if affirmed, would suffice to conclude that while the court was considering the application of a common law doctrine of res judicata; its determination took a trajectory that infringed on article 50(1) of the Constitution.”
74.
Returning to the matter at hand, a perusal of the appellant’s case reveals that the appellant has questioned the manner in which the ELC and the Court of Appeal interpreted the constitutional provision conferring jurisdiction on the ELC to determine the petition, and implores this Court to find that the issues raised before the ELC were proper and ought to have been determined in light of article 70 and 162(2) of the Constitution. This is also in addition to the appellant’s argument where he raises concerns on NET’S and EPT’s capacity to enforce articles 35 and 47 of the Constitution, given NEMA's administrative silence and failure to enforce its stop order, impacting the appellant and Ramba area residents as well as the jurisdictional limitations imposed by law on EPRA and EPT. Further, he has questioned the superior Courts’ determination that, claims involving article 42 violations fall under the NET’S jurisdiction and not ELC’s and that complaints directed at KPLC should be determined by EPRA and later EPT.
75.
Having considered the matter, it is our firm finding that the above issues fall squarely within this court’s appellate jurisdiction in article 163(4)(a) of the Constitution and call for us to determine them as a matter of constitutional interpretation and application. This is also because the question of ELC’s jurisdiction requires interpretation of articles 162(2) as read with articles 40, 42 and 70 of the Constitution and whether the superior courts properly applied their mind to the petition that had invoked those articles. It is also necessary for us to consider the context in which the appellant claims that various rights enshrined in the Constitution were violated, and whether the trial court ought to have heard his plea and interrogated those violations.
76.
The upshot is that the appeal correctly invokes this court’s jurisdiction to the extent of determining these questions and the objections raised by the respondents are consequently overruled. In addressing subsequent issues below, this finding will further be fortified.
ii. Whether the appellant was required to exhaust the alternative dispute resolution mechanisms under EMCA and the Energy Act before filing his constitutional petition at the Environment and Land Court
77.
The appellant faults the determination by the Court of Appeal that his complaint against KPLC relating to a way leave for its transmission lines was to be first resolved by EPRA, and an appeal on such a decision would be handled by the EPT before escalation to the ELC, hence limiting the enjoyment of his right to property under article 40 of the Constitution. The appellant also contends that the administrative silence/and or inaction by NEMA in failing to act on the non-compliance of the stop order issued against the 2nd and 3rd respondents violated his right to equal protection before the law under article 27(1) and the right to fair administrative action under article 47 of the Constitution.
78.
Both superior courts found that the disputes against KPLC and NEMA were to be determined elsewhere, and not before the ELC and the trial court, while upholding KPLC’s objection on jurisdiction, and held that the appellant's complaint against the 8th respondent was to be determined, initially by EPRA. In that regard, it stated thus (per Tuiyott JA):
“
I do find that the Petitioner’s complaint against the 8th respondent is in respect of way leaves, easements, or rights of way in relation to the distribution and supply of electrical energy. The petitioner alleges that the 8th Respondent has allowed electrical posts to be placed in his parcel of land and that the Authority has the power to entertain the dispute. If dissatisfied, the petitioner can move to the Tribunal. This court further finds that Section 9 (2) and 3 of the Fair Administration Act 2015 removes this kind of disputes from this court and places jurisdiction to the Energy Authority.”
79.
The learned judge in finding as above, then proceeded to state:
“
36.
At the very heart of the appellant’s grievance is that KPLC trespassed on his property and unlawfully dug holes and erected electricity power lines on it. As submitted correctly by counsel for KPLC, KPLC is listed as one of the energy sector entities within the country under the third schedule of the Energy Act.
37.
The dispute resolution mechanism envisaged by the Energy Act is three tiered. The first is to raise a complaint with the Energy and Petroleum Regulatory Authority (EPRA), the successor of the Energy Regulatory Commission (ERC) ...
38.
One of the subsidiary legislations saved by these provisions is the Energy (Complaints and Dispute Resolution) Regulations 2012 which are the regulations still used by EPRA as the successor of ERC ...
40.
Given that the complaint by the appellant as against KPLC relates to a way leave for transmission, then the first forum for resolution of that dispute would be before the EPRA. A party dissatisfied with the decision of the authority can invoke the second tier which is a right of appeal to the Energy and Petroleum Tribunal whose jurisdiction is provided by section 36 of the Energy Act.""
80.
Again, addressing the dispute resolution system under EMCA, the trial court, in finding that the appellant’s dispute against the 2nd and 3rd respondent was to be determined by NEMA held:
“
The dispute before me revolves on the mining activities of the 2nd and 3rd respondents at the Ramba area including the processing of gold, and the pollution that is resultant from the processing of the gold. This issue falls within the powers of the NEMA as it revolves on issuance of a licence and pollution. Section 7 of Environment and Co-ordination Act (EMCA) (cap 387) Laws of Kenya establishes NEMA and section 9 sets out its objects that include co-ordination of the various environmental management activities being undertaken by the lead agencies and promotion of the integration of environmental considerations into development policies, plans, programmes and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable yield basis for the improvement of the quality of human life in Kenya.
Section 58 provides for an Environmental Impact Assessment Licence which the authority has the power to issue.
This is followed by section 63 that provides that The Authority may, after being satisfied as to the adequacy of an environmental impact assessment study, evaluation or review report, issue an environmental impact assessment licence on such terms and conditions as may be appropriate and necessary to facilitate sustainable development and sound environmental management. The authority has the power to cancel or revoke a licence or suspend such licence for such time not more than 24 months where the licensee contravenes the provisions of the licence.
The Environment and Co-ordination Act (EMCA) (cap 387) Laws of Kenya provides for the National Environmental Tribunal with the powers to hear appeals from the decisions of NEMA. Any person dissatisfied by the decision of the tribunal can appeal to the ELC. Under section 130 of the Environment and Co-ordination Act (EMCA) (cap 387) Laws of Kenya.”
81.
The Court of Appeal (Tuiyott, JA) on its part found as follows:
“
As I understand it, the complaint of the appellant against NEMA is that NEMA failed to enforce the stop order it had issued. I think it would have been available to NEMA, through an environmental inspector, to institute and undertake criminal proceedings against the 2nd and 3rd respondents if the two failed to comply with the stop order. Having failed to make the decision to do so, NEMA would be failing in its duty and its inaction and dereliction of duty could, in my view, be a proper subject of proceedings by the appellant against NEMA. The definition of a decision in section 2 of The Fair Administrative Action Act includes an administrative or quasi-judicial decision that is required to be made. A decision not to enforce the stop order is a decision that would fall within the contemplation of section 129 (2) of the Act.”
82.
In making the above findings, the superior courts both applied the doctrine of exhaustion and the question as to whether a party is required to exhaust any dispute resolution mechanism provided by a statute and/or any other law before resorting to the courts. More specifically, whether exhausting the appeal process set out under sections 129 and 130 of EMCA as well as the dispute resolution system as set out under Sections 10 and 36 of the Energy Act, for the claim against KPLC, is an issue that must be resolved by this judgment.
83.
This is because the resolution of environmental issues before NEMA has been the subject of prior decisions by our superior courts and two schools of thought have emerged in that regard. On one hand, there is a series of decisions that have taken the position that, even though the ELC has original and appellate jurisdiction on environment and land matters, parties should exhaust the mechanisms provided for under EMCA, by first referring a matter to NET before an appeal can lie to the ELC.
84.
This was the position taken in Orata International Limited v National Environment Management Authority [2019] eKLR, where the ELC (Christine Ochieng, J), while upholding a preliminary objection raised as to its jurisdiction to grant judicial review orders held:
“
In relying on the facts above and the three authorities, I find that in so far as the Environment & Land Court Act gives original and appellate jurisdiction on environment and land matters to the Environment & Land Court, the prayers sought in the instant application cannot hold at this juncture as the Applicant has a remedy to refer the complaint to the National Environment Tribunal first before an appeal can lie to the Environment and Land Court (ELC). Since there is already an established avenue under Environmental Management and Coordination Act (EMCA) to deal with the Applicant’s complaint. I am unable to grant him leave but direct him to lodge an Appeal with NET. Since I have already made my findings above, I will not deal with the second issue.”
85.
Similarly, Angote J, in Borbor & 2 others v National Environment Management Authority (Environment and Land Judicial Review Case 2 of 2022) [2022] KEELC 3947 (KLR) (28 July 2022) (Ruling) applied the doctrine of exhaustion in finding that an applicant who is aggrieved or seeks to challenge the acts of NEMA ought to first move NET pursuant to Section 129(2) of the EMCA and not the Court.
86.
The learned judge in so saying was guided by the pronouncements by the Court of Appeal in National Environmental Tribunal v Overlook Management Limited & 5 Others [2019] eKLR. The Court of Appeal in that case and with a view to reconciling the conflicting decisions on the question of NEMA’s jurisdiction held:
“
... where a party considers itself aggrieved by the events stipulated in section 129 (1) (a)-(e) of the Act, such a party may as of right appeal…. Where an aggrieved party does not qualify under the provision but is aggrieved by a decision made by the 3rd respondent, its Director-General or its committees, then such a party lodge an appeal pursuant to sub-section 2 of that provision.”
87.
Furthermore, the Court of Appeal in Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKLR, (Asike- Makhandia JA with Kiage JA as Odek JA had passed on before delivery of judgment), while faulting the ELC for assuming jurisdiction before the parties had exhausted other mechanisms in resolving their dispute held (per Asike- Makhandia JA) held:
“
... I observe that the jurisdiction of the ELC is appellate under Section 130 of EMCA. The ELC also has appellate jurisdiction under sections 15, 19 and 38 of the Physical Planning Act. An original jurisdiction is not an appellate jurisdiction. A court with original jurisdiction in some matters and appellate jurisdiction in others cannot by virtue of its appellate jurisdiction usurp original jurisdiction of other competent organs. I note that original jurisdiction is not the same thing as unlimited jurisdiction.
A court cannot arrogate itself an original jurisdiction simply because claims and prayers in a petition are multifaceted. The concept of multifaceted claim is not a legally recognized mode for conferment of jurisdiction to any court or statutory body.
In addition, section 129(3) of EMCA confers power upon the NET to inter alia exercise any power which could have been exercised by NEMA or make such other order as it may deem fit. The provisions of section 129(3) of EMCA is an all- encompassing provision that confers at first instance jurisdiction upon the Tribunal… It was never the intention of the Constitution makers or legislature that simply because a party has alleged violation of a constitutional right, the jurisdiction of any and all Tribunals must be ousted thereby conferring jurisdiction at first instance to the ELC or High Court.”",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/113/eng@2023-12-28
Petition 18 (E020) of 2022,Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) (28 December 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko",28 December 2023,2023.0,Nairobi,Civil,Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others,[2023] KESC 106 (KLR),,"A. Introduction
1.
This petition of appeal dated July 28, 2022 challenges the decision of the Court of Appeal in Civil Appeal No 117 of 2018 delivered on April 4, 2019. It is filed pursuant to the court’s Ruling dated July 8, 2022. In the said ruling, we granted the appellants leave to appeal to the Supreme Court, limited to the following issues certified as being of general public importance:
i.
Whether a constructive trust can be imported into a land sale agreement to defeat a registered title therefrom; and
ii.
Whether a constructive trust can be imported into a shareholding of a company as to disentitle a registered holder of shares in a company obtained for valuable consideration.
B. Background
2.
Sometime in May, 2005, the respondents experienced financial challenges as a result of debts incurred by the 1st respondent, and secured by Plot No 500/VI/Mainland North (Title No CR 4xxx) (suit property) registered in the name of the 1st respondent. The suit property housed a brick factory, a maize mill factory, a coconut extracting factory, a go-down, office blocks, a workshop, a residential house, ancillary buildings and included various machines and equipment. The brick making machinery and equipment, other movable and immovable assets were not part of the security but were attached to the suit property. The suit property was however threatened with sale by the financier, Standard Chartered Bank Ltd, to recover the monies secured by it.
3.
In an effort to save the suit property, Dinesh and Ateet Jetha, the 2nd and 3rd respondents, at the time tasked with the running of the 1st respondent, sought the assistance of the 1st appellant, Arvind Shah, a close and trusted friend perceived to be an experienced and successful businessman running numerous profitable companies. The 1st appellant recommended the restructuring of the 1st respondent. This involved the incorporation of two holding companies, Zaverchand Sojpal Jetha Holdings Ltd, the 6th respondent, to be owned 100% by the respondents and Goshrani Holdings Ltd, the 3rd appellant, to be owned by the 1st appellant or his agents. These two companies would then incorporate four other companies to hold various assets of the 1st respondent. The four incorporated companies are: Coast Properties Ltd; Coast Maize Millers Ltd; Coast Clay Works Ltd; and Spa Millers Nairobi Ltd, which are the 4th, 5th, 6th and 7th appellants, respectively. At incorporation, the companies did not own any assets. The companies were to hold the 1st respondents’ assets for the sole benefit of the respondents during the process of repayment of the facility and redeeming the assets from the charge held by Standard Chartered Bank Kenya Ltd.
4.
The respondents acted upon the 1st appellant’s recommendations. Before the incorporation of the companies was complete, the 1st respondent passed a resolution dated June 2, 2005 to sell the suit property. Subsequently, a sale agreement between the 1st respondent and the 8th appellant was entered into for the sale of the suit property for the sum of Kshs 27,000,000/- equivalent to the outstanding loan amount owed to Standard Chartered Bank Kenya Ltd.
5.
To forestall the looming auction, the 1st appellant approached Standard Chartered Bank Kenya Ltd with the resolution, the sale agreement and a proposed settlement of the outstanding debt upon registration of title to the suit property in favour of the 8th appellant or its nominee. Standard Chartered Bank accepted the proposal on condition that 10% of the purchase price, being Kshs 2,700,000/-, be paid upfront as a non-refundable deposit and a guarantee for payment of the balance thereof be given by a reputable bank. Concurrently, the 1st appellant sought financing from Giro Commercial Bank Limited who had agreed to offer a loan facility secured by the suit property.
6.
As a consequence, the 10% deposit and a bank guarantee by Giro Commercial Bank were released to Standard Chartered Bank who in turn released the title of the suit property to the Advocates acting for both the 8th appellant and Giro Commercial Bank. A discharge of the charge in favour of Standard Chartered Bank was subsequently registered.
7.
In the meantime, the incorporations of the 4th to the 7th appellants were concluded with the shareholding comprising the 1st appellant, 4th respondent and the 3rd appellant each holding 20, 490 and 490 shares, respectively. The directors of the 4th to the 7th appellants were the 3rd respondent and 1st appellant. Subsequently, the 8th appellant nominated the 4th appellant to be registered as proprietor of the suit property. The brick making plant and maize milling factory on the suit property were assigned to the 5th, 6th and 7th appellants.
8.
Thereafter, the 4th appellant applied for a loan and an overdraft facility of Kshs 50,000,000/- from Giro Commercial Bank to finance the purchase of the suit property and its working capital. The financing was approved on August 11, 2005. A fresh charge over the suit property was registered in favour of Giro Commercial Bank and the balance of the outstanding loan released to offset the loan at Standard Chartered Bank.
9.
Seemingly, underlying issues concerning the shareholding and controlling interest of the companies therein surfaced in the year 2009 resulting in the institution of numerous suits by the parties.","C. Analysis and Determination
i. Whether the petition satisfies the jurisdictional threshold under article 163(4)(b) as read with section 15 of the Supreme Court Act
51.
There is a two-fold challenge on the court’s jurisdiction. The first angle of the challenge is on non-conformity of the petition with the rules and the second angle is on the contents of the petition.
52.
The 3rd and 4th respondents’ preliminary objection is premised on the grounds that the notice of appeal; is not in compliance with Rule 10 of the Court of Appeal Rules as the same is not signed and endorsed with the stamp of the Deputy Registrar; it does not relate to the judgment delivered on April 4, 2019 but is filed in the application for certification and leave to appeal to the Supreme Court; is contrary to rule 39(1)(b), (c) and Form G of the Supreme Court Rules and does not set out the concise presentation of arguments supporting each of the grounds of the petition of appeal, thus it occasions prejudice to the respondents’ rights to a fair trial. The 3rd and 4th respondents further posit that the Record of Appeal does not comply with rule 40(1)(d) of the Supreme Court Rules as it has not included the relevant pleadings and documents required to determine the appeal, in omitting some documents from the Record; and it does not comply with rule 11 of the Supreme Court (General) Practice Directions, 2020 of November 16, 2020 as the 10th line of each document is not numbered.
53.
We note that in the 3rd and 4th respondents’ notice of motion Application dated December 2, 2022 is raised similar grounds in urging this court to strike out the record of appeal. In our ruling of April 21, 2023 we addressed these grounds conclusively and we were satisfied, as we still are, that the notice of appeal was properly filed before the Court of Appeal. Our perusal of the said notice of appeal reveals that whereas the heading of the notice of appeal indicates that it is filed in regard to an application for grant of certification and leave to appeal to the Supreme Court, its contents specify the intent to appeal against the decision of the Court of Appeal rendered on April 4, 2019. The parties having engaged in the certification and leave to appeal proceedings both at the Court of Appeal and before us, there was little doubt left as to the appellants’ intention to appeal against the judgment of the Court of Appeal.
54.
In addressing the 3rd and 4th respondents’ argument on non-compliance with rule 10 of the Court of Appeal Rules, we reiterate, as we stated in our ruling, that it is not for this Court to entangle itself in the filing and administrative processes of the Court of Appeal. We affirmed that the failure to have it stamped or endorsed by the Court of Appeal was not fatal, as the Notice of Appeal was duly lodged in the Court of Appeal.
55.
On the lack of compliance with rule 40(1)(d) of the Supreme Court Rules, this being a matter of determination of specific framed questions of general public importance, the documents stated as missing from the record would be useful for the interrogation of findings of facts which falls outside the purview of this court.
56.
Concerning the failure by the appellants to mark every tenth line of the document, we find, without condoning the same, that this is also not fatal. Article 159 (2) (d) of the Constitution obliges this court to administer justice without undue regard to procedural technicalities. We therefore find that the 3rd and 4th respondents’ preliminary objection dated November 24, 2022 has no merit and is dismissed.
57.
The second limb of the respondents’ objection is that the petition of appeal as framed goes beyond the scope of the questions certified as matters of general public importance. The 1st and 2nd respondents urge that the court’s jurisdiction can only be exercised with regard to the two framed issues. They submit that, while the appellants raise seven grounds of appeal, five of them raise matters of fact contrary to the jurisdiction of the court. Similarly, the 3rd and 4th respondents urge the court to decline the invitation to consider and find alleged errors of fact by the Court of Appeal, as that falls outside the scope of the two framed questions. The 5th and 6th respondents also urge that by virtue of this court having a limited scope and jurisdiction as set out in the ruling of July 8, 2022, it cannot grant reliefs (b), (c), (d), and (e) of the petition of appeal as they are ultra vires.
58.
In response, the appellants underscore that the court can choose which set of facts to address, where the facts as summarized by the High Court differ from those of the Court of Appeal. Moreover, that section 20 of the Supreme Court Act and rule 26(3) of the Supreme Court Rules, 2020 empower the court to consider facts including taking new evidence not previously available, re-appraise evidence and draw inferences of facts. They also cite section 3A of the Supreme Court Act to urge that the Court has wide powers to make such orders as may be necessary for the administration of justice.
59.
In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others SC Appl. No 2 of 2011 [2012] eKLR we held that an appeal is granted in specific terms by the Constitution or statute. An appeal thus typically lies to a higher court and entails a reconsideration of a decision by the higher court with a view to reversing it either in part or in toto.
60.
The appellate jurisdiction of this court derives from article 163(4) of the Constitution. This involves an appeal as of right or an appeal on certification. As held in Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others SC Civil Appl No 35 of 2014 [2015] eKLR, the court cannot exercise both jurisdictions concurrently. The litigant chooses the best path upon which the matter is considered within the established threshold. Unlike an appeal as of right where the court exercises its appellate jurisdiction on the application and interpretation of the Constitution by the superior courts below, the jurisdiction on certification is narrower as the court is only called upon to express its position on matters that transcend the litigants before court among other parameters set out in Phillipus Hermanus Steyn v Giovanni Gnecchi-Ruscone SC Application No 4 of 2012 [2103] eKLR without necessarily sitting on appeal between the parties before it. This stems from the holding in Daniel Kimani Njihia v Francis Mwangi Kimani & another SC Appl No 3 of 2014 [2015] eKLR that the Supreme Court is not just another appellate layer of courts to offer remedy to parties dissatisfied with the decisions of the Court of Appeal.
61.
Further, in Dhanjal Investments Limited v Kenindia Assurance Company Limited Sup Ct. Petition No.7 of 2016 [2018] eKLR, we appreciated that the court may allow parties to submit on an issue not previously framed as one for determination but which, even if unconnected to any of the framed issue, is nonetheless important in resolving a dispute before it. The ‘public importance’ criteria should in any event never be lost. We stated as follows in that regard:
“
(67)
Having so stated, we must at this point remind parties that it is only the issues that are certified as being of great public importance that must form the basis for submissions and ultimately the decision of this court. To frame certain issues as being of great public importance at the point of certification under article 163(4)(b) of the Constitution and then submit on issues that are specific to the parties at hand with no public element exhibited is an abuse of court process and may lead to the dismissal of an appeal.”
62.
As noted in the above cited case, it will always be a matter for the exercise of discretion whether to allow a point in no way connected with the certified point of law to be argued on the appeal, and it is not to be assumed that an appellant can as a matter of right raise any such point. In framing the two questions that we certified as being of great public importance, we observed as follows:
“13.
… We think that the dispute did not end with the vitiation of contracts or the law on the circumstances of resulting or constructive trusts and the lifting of the corporate veil which we agree are settled issues. The crux of the applicants’ case in their fifteen grounds, as we understand it, is the ultimate recourse granted by the courts under such instances in view of the existing constitutional and statutory provisions ” (Emphasis ours)
We are therefore mindful of our exercise of discretion and find no merit in the objection to our jurisdiction as sought in the objection and the application to strike out the appeal. None of the issues raised to challenge our jurisdiction suffices. We disallow the preliminary objection and the application by the respondents and now turn to determine the issues as framed.
ii. Whether a constructive trust can be imported into a land sale agreement to defeat a registered title therefrom
63.
The appellant faults the Court of Appeal for holding that the agreement for sale dated August 31, 2005 between the 8th appellant and the 1st respondent did not represent the will of the parties. They state that this overrode the established principles of section 3 of the Law of Contract Act; section 97(1) of the Evidence Act; and sections 36, 41, 43 and 44 of the Land Registration Act as a written contract for disposing interest in land or a written contract cannot be unilaterally amended by parole evidence. They dispute the importation of constructive trust and maintain that parties had a common intention, which was not to establish the 1st appellant or any of the appellants as a fiduciary. We however note that the appellants failed to address us on the specific issue framed for determination, save to regurgitate the factual background and litigation history before the superior courts.
64.
On the other hand, the respondents submit that a constructive trust overrides the registered title where a party has exerted undue influence when obtaining and retaining the property transferred to him, as was in the instant case. Furthermore, section 25 (2) of the Land Registration Act provides for overriding interests, which include trusts, which can be imposed to defeat the title of a registered proprietor. The respondents further urge that, equity will impose a constructive trust in an agreement for the sale of land and the resultant registration whenever it is shown that the claimant obtained the agreement and title while standing as a fiduciary, irrespective of whether he breached the fiduciary duties. They add that the petition neither discloses nor establishes any special circumstances or basis to justify a departure from the established principles of constructive trust.
65.
The Court of Appeal having considered the pleadings, and appraised itself of the evidence within the confines of its jurisdiction, established that the respondents had placed their trust in the 1st appellant to salvage the suit properties. In examining the transactions, it found that the circumstances gave rise to a presumption of undue influence on the part of the 1st respondent and met the criteria of being regarded as unconscionable bargains. It therefore found that the 1st and 3rd appellants hold the shareholding of the 4th -7th appellant companies in trust for the 1st respondent, and the 4th appellant holds the suit land in trust for the 1st respondent.
66.
The Trustee Act, cap 167 Laws of Kenya defines a “trust” and “trustee” as extending to implied and constructive trusts. The Black’s Law Dictionary, 9th edition defines a trust as:
“
The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).”
67.
It further defines a constructive trust at pg 1649 as:
“
An equitable remedy that a court imposes against one who has obtained property by wrong doing.
68.
Halsbury’s Laws of England, 4th edition, volume 48 at paragraph 690 states as follows on constructive trusts:
“A constructive trust will arise in connection with the legal title to property whenever one party has so conducted himself that it would be inequitable to allow him to deny to the other party a beneficial interest in the property acquired. This will be so where: (1) there was a common intention that both parties should have a beneficial interest; and (2) the claimant has acted to his detriment in the belief that by so acting he was acquiring a beneficial interest. The relevant intention of each party is the intention reasonably understood by the other party to be manifested by that party’s words or conduct notwithstanding that he did not consciously formulate that intention or even acted with some different intention which he did not communicate.
The first question is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the property, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. Such an agreement will be conclusive.
Where the evidence is that the matter was not discussed at all, the court may infer a common intention that the property was to be shared beneficially from the conduct of the parties. In this situation direct contributions to the purchase price by the party who is not the legal owner, whether initially, or by way of mortgage instalment, will readily justify the inference necessary to the creation of a constructive trust.
Exceptionally the agreement, arrangement or understanding may be arrived at after the date of the original acquisition. Once common intention has been established, whether by direct evidence of common agreement or by inference from conduct, the claimant must show that he acted to his detriment in reliance on the agreement.
The final question to determine is the extent of the respective beneficial interests. If the parties have reached agreement, this is conclusive. Where there is no agreement as to the extent of the interest, each is entitled to the share the court considers fair having regard to the whole course of dealing between the parties in relation to the property.”
69.
A constructive trust is thus an equitable instrument which serves the purpose of preventing unjust enrichment. The Canadian Supreme Court in Soulos v Korkontzilas, [1997] 2 SCR 217, a case which involved a land dispute stated as follows, as to the purpose of constructive trust:
“
The constructive trust is an ancient and eclectic institution imposed by law not only to remedy unjust enrichment, but to hold persons in different situations to high standards of trust and probity and prevent them from retaining property which in “good conscience” they should not be permitted to retain. While Canadian courts in recent decades have developed the constructive trust as a remedy for unjust enrichment, this should not be taken as expunging from Canadian law the constructive trust in other circumstances where its availability has long been recognized. Under the broad umbrella of good conscience, constructive trusts are recognized both for wrongful acts like fraud and breach of duty of loyalty, and to remedy unjust enrichment and corresponding deprivation. While cases often involve both a wrongful act and unjust enrichment, constructive trusts may be imposed on either ground.”
70.
Similarly, although in a matrimonial property dispute, the Canadian Supreme Court in Murdoch v Murdoch [1975] 1 SCR 423 stated as follows:
“As is pointed out by Scott, Law of Trusts, 3rd ed., 1967, vol. 5, at p. 3215, “a constructive trust is imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it ... The basis of the constructive trust is the unjust enrichment which would result if the person having the property were permitted to retain it. Ordinarily, a constructive trust arises without regard to the intention of the person who transferred the property”; and, again, at p. 3413, quoting Judge Cardozo “a constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.”
71.
The United States Supreme Court in Harris Tr & Sav Bank v Salomon Smith Barney Inc, 530 US 238, 250–51 (2000) citing Moore v Crawford, 130 US 122, 128 (1889) stated thus:
“
Whenever the legal title to property is obtained through means or under circumstances ‘which render it unconscientious for the holder of legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same..”
72.
As has been established therefore, trusts are created either expressly, where the trust property, its purpose and the beneficiaries are clearly stated, or established by the operation of the law. Like in the instant case, where it is not expressly stated, the trust may be established by operation of the law.
73.
From the definitions above, we establish that a constructive trust is a right traceable from the doctrines of equity. It arises in connection with the legal title to property when a party conducts himself in a manner to deny the other party beneficial interest in the property acquired. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit.
74.
Vide section 3(1) of the Judicature Act, cap 8 Laws of Kenya, the doctrines of equity are applicable in Kenya and form part of our laws. It states that common law, doctrines of equity and statutes of general application shall apply in so far as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.
75.
In addition, we also note that the concept of trust is not new in our jurisdiction. In Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another Petition 10 of 2015 [2018] eKLR, we observed that the courts, vide section 163 of the Registered Land Act (repealed by the Land Registration Act No 3 of 2012) have been more willing to import the doctrines of implied, resulting and constructive trust as known in English law, into section 28 of the Act.
76.
The concept of constructive trust has also been inferred in a number of decisions of the superior courts. The Court of Appeal in Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & 5 others, Civil Appeal No 51 of 2014 [2015] eKLR held that:
“
A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see. Halsbury’s Laws of England supra at para1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment.”
77.
In Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri Civil Appeal No 6 of 2011, consolidated with No 26 & 27 of 2011 [2014] eKLR and in Willy Kimutai Kitilit v Michael Kibet, Civil Appeal No 51 of 2015 [2018] eKLR, the Court of Appeal, in matters involving the sale of land, held that the equitable doctrines of constructive trust and proprietary estoppel are applicable and enforceable to land, subject to the circumstances of the case.
78.
The applicability of the doctrine of constructive trust is therefore now settled within our jurisdiction and is applied to land sale transactions. In our ruling
reviewing the Court of Appeal decision on certification, we underscored the fact that the constructive trust is already settled. We stated thus:
“13.
We think that the dispute did not end with the vitiation of contracts or the law on the circumstances of resulting or constructive trusts and the lifting of the corporate veil which we agree are settled issues. The crux of the applicants’ case in their fifteen grounds, as we understand it, is the ultimate recourse granted by the courts under such instances in view of the existing constitutional and statutory provisions. …” (Emphasis ours)
The first question before us therefore is not whether the Court of Appeal was correct in imputing a constructive trust but rather, whether such trust can be imported into a land sale agreement to defeat a registered title therefrom obtained for valuable consideration without offending the constitutional right to property under article 40 of the Constitution and other statutory provisions.
79.
By virtue of article 40 of the Constitution, every person either individually or in association with others, has the right to acquire and own property of any description, and in any part of Kenya. This right to property is however not absolute. Under article 40(3) the State may deprive a person of property through a process of acquisition of land for a public purpose or in public interest in accordance with the Constitution. Further, under article 40(6) the rights under this Article do not extend to any property that has been found to have been unlawfully acquired.
80.
While article 40 has an internal limitation on the right to property, the general limitation of rights provision at article 24 of the Constitution provides that any limitation on a right shall be by law, and only to the extent that the limitation is reasonable and justifiable, in an open and democratic society based on human dignity, equality and freedom. Other relevant factors to be taken into account include the nature of the right, the importance and purpose of the limitation, and relation between the limitation and the purpose of such limitation. It further, provides that the person seeking to justify a particular limitation has the obligation to justify the limitation.
81.
As prescribed, a limitation of a fundamental right or freedom, must be provided under law. It is therefore imperative for us to examine legislation making provision for the registration of titles and the limitations on the right to property set out.
82.
The Land Registration Act, No 3 of 2012, is the law that governs registration of titles. Section 25 of the Land Registration Act provides that the rights of a proprietor shall not be liable to be defeated except as provided under the Act, subject to encumbrances and conditions in the register; and to such liabilities, rights and interests declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. Additionally, as is stipulated under section 25(2) nothing in this provision shall be taken to relieve a proprietor from any duty or obligation to which the person is subject as a trustee.
83.
Under section 26 of the Land Registration Act, No 3 of 2012, a Certificate of Title issued by the Registrar upon registration or to a purchaser of land upon transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner. However, this is subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate. Further, the title of the proprietor shall not be subject to challenge except on the ground of fraud or misrepresentation and where the certificate of title was acquired illegally, un- procedurally or through a corrupt scheme.
84.
Section 28 provides that unless the contrary is expressed in the register, all registered land shall be subject to overriding interests as may for the time being subsist and affect the same, without being noted in the register. These overriding interests include, trusts.
85.
While sections 25, 26 and 28 of the Land Registration Act recognize that the rights of a registered proprietor of land are absolute and indefeasible, these are only subject to rights and encumbrances noted in the register and overriding interests. The overriding interests include trusts. In our view, and in the absence of any limitation as to the trusts, this includes constructive trusts. Applying the provisions of article 24 of the Constitution therefore, the limitation of the right to property is provided under law, and includes a constructive trust.
86.
We have found that the doctrines of equity are part of our laws by virtue of section 3 of the Judicature Act. And while the Constitution entitles every person to the right to property at article 40, this right is not absolute. Article 24 provides that a right cannot be limited except by law. We have also established that, while sections 25 and 26 of the Land Registration Act provide for the rights of a proprietor and that the certificate of title is conclusive evidence of proprietorship, section 28 provides that the registration is subject to overriding interests. One of these overriding interests is trust, which includes constructive trust.
87.
We have also established that constructive trusts can arise in various circumstances, including in land sale agreements. Trust is an equitable remedy which is an intervention against unconscionable conduct. Where the circumstances of the case are such that it would demand that equity treats the legal owner as a trustee, the law will impose a trust. It is imposed by law whenever justice and good conscience require it. On this issue and for the reasons given above, we therefore find that a constructive trust can be imported into a land sale agreement to defeat a registered title.
iii. Whether a constructive trust can be imported into a shareholding of a company as to disentitle a registered holder of shares in a company obtained for valuable consideration.
88.
The appellants urge that a constructive trust cannot be declared against a shareholder for valuable consideration, and that in any event, the remedy against a shareholder who has not fully paid a valuable consideration for his shares is a call- up for payment by the innocent shareholders. They posit that the appropriate remedies for non-payment of share value by a shareholder was set out in the Companies Act and within the Articles of Association of the various companies. They further contend that shareholding itself, being a contractual matter between shareholders, a declaration of trust in the circumstances amounted to deprivation of the 1st, 2nd and 3rd appellants’ right to property under article 40 of the Constitution. They maintain that a trust did not arise as the shareholding was a product of negotiations and was spelt out in the Memorandum and Articles.
89.
The respondents on the other hand submit that shares in a company are property like any other. Constructive trust therefore applies to shareholding agreements and the registration as holders of shares in a company, against persons who acquire title by breach of fiduciary duties, undue influence and other wrong doings. They submit that it is not in dispute that the 4th to 7th appellants were special purpose vehicles created to salvage the 1st respondent from financial distress. The constructive trust therefore stepped in as an equitable concept to prevent the appellants from acting in an unconscionable manner defeating the common intention.
90.
The respondents further urge that the appellants never paid any consideration for the shares they seek to enforce. They cannot therefore rely on the letter of the law to enforce the ownership of shares when at all material times, the intention of the parties was to create a trust to aid in the restructuring of the 1st respondent. They thus submit that the issue at hand must be answered affirmatively, as the global stance is that a constructive trust can be imported into a shareholding agreement to disentitle a registered shareholder.
91.
The Companies Act, No 17 of 2015, makes provision to govern all types of companies. Section 20 of the Act provides for the articles of association as the Constitution of the company. Pursuant to section 26 of the Act, for existing companies before the commencement of the Act, such as the companies in the instant suit, the memorandum of association is treated as provisions of the articles. Companies therefore have a free hand in managing their own affairs through these constitutive documents. As provided under section 30(1) of the Act, the company’s constitution binds the company and its members to the same extent as if the company and its members had covenanted, agreed with each other to observe the constitution. Further, within our jurisdiction and outside, it has been held that a court cannot interfere with the internal affairs of a company except for limited circumstances. In Martin Lemaiyan Mokoosio & another v Reshma Praful Chandra Vadera & 3 others [2021] eKLR, Odunga J (as he then was) held as follows:
“13.
Whereas disputes regarding internal affairs of a company ought to be resolved in accordance with the constitution of the company, where it was alleged that the company was not acting in accordance with its own constitution, the court had the power to intervene. In the instant case the allegations were that the respondents had violated the constitution of the company and therefore the court was entitled to intervene.”
In Tanui & 4 others v Birech & 11 others [1991] KLR, the Court of Appeal expressed itself in the following terms:
“
…We would agree that while it is not the business of the High Court or this court to involve itself in the day to day running of institutions such as the church, colleges, clubs and so on, yet where it is shown that such an organization is conducting its affairs in a manner contrary to its constitution and to the detriment of its members, then the High Court and this court would not only be entitled to but under a duty to compel it, either, by injunction or otherwise, to obey its constitution.”
92.
It is important to note that section 93 of the Act requires the company to keep a register of its members including information relating to beneficial owners of the company, if any. Section 104 however provides that:
104.
Trusts not to be entered on register
1.
A company shall not accept, and shall not enter in its register of members, notice of any trust, expressed, implied or constructive.
2.
If a company contravenes subsection (1), the company, and each officer of the company who is in default, commit an offence and on conviction are each liable to a fine not exceeding five hundred thousand shillings.
Section 104(1) was similarly contained in section 119 of the repealed Companies Act cap 486 which provided that: “No notice of any trust, expressed, implied or constructive, shall be entered on the register, or be receivable by the registrar”.
93.
Further, section 105 of the Act states that until the contrary is proved, the register of the members of a company is evidence of the matters required or authorised to be included in it. It is therefore evident from the statutory provision that the Act expressly provides that there can be no entry of a trust on the company register.
94.
We have found that a constructive trust can arise and be imported into a land sale agreement to defeat a registered title, and established that the constructive trust is imposed on property in the hands of a wrongdoer to prevent him or her from benefitting unjustly from the wrongful conduct. Constructive trust is therefore an appropriate remedy for a wronged party and has a right to the proceeds.
95.
We however note that section 104(1) of the Companies Act, and section 119 of the repealed Companies Act cap 486, which is similar to section 126 of the Companies Act 2006 of the United Kingdom provides that:
126.
Trusts not to be entered on register
No notice of any trust, expressed, implied or constructive, shall be entered on the register of members of a company registered in England and Wales or Northern Ireland, or be receivable by the registrar.
96.
In commenting on this provision, Palmer’s Company Law Manual observes as follows:
“
There is nothing to prevent trustees from becoming members of a company but the CA 1985, S.360 provides that no notice of any trust – express, implied or constructive – may be entered on the register of any company registered in England and Wales. The rationale behind the rule (which does not apply in Scotland) is that the relationship between trustee and beneficiary is of no concern to the company which should be entitled to assume that it can deal solely with the registered holders.”
97.
In Farouk Ravate & another v Eric Agbeko & 2 others; Ravasam Development Company Limited (interested parties) HCCC No 450 of 2011 (Consolidated with No. 476 of 2015 and No. 637 of 2015) [2020] eKLR, Tuiyott J (as he then was) stated as follows while noting the observations made in commentaries on the effect of section 119 of the repealed Companies Act:
“40
…Nothing in the three passages I have set out suggests that the effect of this provision is to outlaw or bar trust arrangements in regard to shares in a company. Quite to the contrary, it recognizes that they may exist but that rights of the beneficiaries as against the Company (and perhaps against third parties as I shall be proposing) are circumscribed because no notice of such Trust is to be entered in the register of members.
In all these cases (in English law, but not in Scots Law) the trustee as registered holder will be personally responsible for all matters and liabilities arising in respect of the shares although he will in turn be entitled to an indemnity from the beneficiaries. An English company’s rights as against the trustee are not therefore limited to the trust property”.
98.
We do agree that whereas section 104 of the Companies Act proscribes the entry of trusts on the register of members, the intention of this provision was not to bar any trust arrangements, and we add, including constructive trusts. There is therefore no bar to the holding of share(s) upon a trust. As the court stated in the case above, which we agree with:
“
The fact that a company does not recognize a person holding a share upon a trust and treats a registered shareholder as the absolute owner of his shares does not mean that it does not allow its members to enter trust relationships. As a corollary it does not mean that a trust arrangement is not enforceable as between the contracting parties.”
99.
In the present case, the Court of Appeal having established that there was unconscionable or inequitable behaviour, trust was imposed as the most appropriate remedy, and we are in total agreement thereto. In answering the question before us and taking into account the cited provisions of the Companies Act, whether a constructive trust can be imported into a shareholding of a company, our answer is in the affirmative. We have established that, section 104 does not outlaw or bar importation of trust into the shareholding of a company. Further, the Black’s Law Dictionary, 11th edition at page 1654 defines a shareholder as an individual who owns or holds a share or shares in a company. A shareholding therefore signifies proprietorship in a company to the extent of the share(s) held. Consequently, in this regard, company shares constitute property under article 260 of the Constitution and therefore, where it is found that there was a wrong doing, then a constructive trust may be inferred, and we find that the Court of Appeal, after considering the totality of the circumstances in the case, was right in finding that a constructive trust had clearly been created.
iv. What reliefs should this Court grant?
100.
The appellants have urged that we allow the petition of appeal, set aside the order of the Court of Appeal and reinstate the decision of the High Court in Mombasa Civil Case No. 9 of 2011, and in the alternative substitute it with the court’s own decision. The respondents submitted that by virtue of this court having a limited scope and jurisdiction as set out in the ruling of July 8, 2022, it cannot grant reliefs (b), (c), (d), and (e) of the petition as they are ultra vires the court’s powers.
101.
The Court of Appeal determined that the shares held by the 1st and the 3rd respondents in the 4th to the 7th appellants are held in trust for the 1st respondent or its nominees having determined that the 1st appellant had set out in a scheme to purchase the property at a paltry Kshs 27,000,000/- thus unjustly enriching himself; he was conflicted between his duties as a trustee and his scheme to purchase the property; and notwithstanding the trust relationship, the 1st appellant did not utilize any of his personal funds to purchase the property. It found that the actions of the 1st appellant were irregular, deceitful, in breach of his trust obligations and resulted in his unjust enrichment. We uphold these findings.
102.
A party was wronged, another has benefitted as a result of the wrongdoing. It clings on section 104 of the Companies Act to state that there can be no entry of a trust on the company register. To rectify the unjust enrichment, breach of fiduciary duty and right the wrong doing committed against the respondents, the Court of Appeal found that there was a constructive trust to remedy the wrong. We have noted that the Companies Act, however, bars the registration of any trust, expressed, implied or constructive in its register of members. It further provides for a hefty fine for any person who contravenes this provision. In our view, this statutory provision needs to be relooked at noting that there are circumstances that may give rise to a constructive trust, or other kind of trust in companies, and which require that trusts related to companies be disclosed for reasons of rule of law, accountability and good sense of justice.
103.
Having set out our parameters in this appeal, and noting that our focus is on the recourse, rather than the applicability of the doctrine of trust, we are not persuaded to re-open the merits of the Court of Appeal decision in concluding the applicability of the trust. Litigation has to come to an end and the Court of Appeal, having satisfied itself of the facts, came to one conclusion and made its orders. As expected, a decision arising out of adversarial litigation is not bound to be satisfactory to both parties and undoubtedly, different courts would come to different conclusions on the same facts. Re-opening the facts in our view is not appropriate under circumstances, and would be going beyond our constitutional remit if we so did. At any rate nothing has been shown to take that unconventional route.
104.
A trend towards promotion of legal certainty, safeguarding of property rights, and equitable access to justice undoubtedly emphasizes the necessity for a revision of the legislation governing the registration of trusts (including constructive) in relation to shares held in a company. These changes would be indicative of a growing recognition of the importance of constructive trust as a means of addressing unjust enrichment and ensuring equitable outcomes in disputes. Legislation that is in line with international developments and prevailing standards can enhance the strength and adaptability of the legal system, enabling it to more effectively tackle present day issues pertaining to shareholding, property rights and fair redress. It provides an opportunity for courts to shape the legal landscape concerning providing clarity particularly on enforcing remedies when breaches or unfairness occur.
105.
We reiterate that a constructive trust is imposed to address situations where it would be unjust for one party to retain legal ownership of property under the unequitable circumstances. The court recognizes that a claimant has a better right to certain property than the person who holds legal title to it, it therefore declares a constructive trust in favour of the victim of the wrong, who is then given a right to the property.
106.
Courts are an integral part of the Kenyan judicial system, viewed as vehicles for redressing wrongs. As a result, they are entrusted with the responsibility of adjudicating disputes and administering justice, in accordance with the Constitution’s ethos, values and principles. In carrying out their judicial duties, they are obligated to adhere to the principles outlined under article 159 of the Constitution. This guarantees that the objectives and tenets of the Constitution are upheld.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/106/eng@2023-12-28
Application E020 of 2023,Standard Chartered Financial Services Limited v Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited & 2 others (Application E020 of 2023) [2023] KESC 110 (KLR) (28 December 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko",28 December 2023,2023.0,Nairobi,Civil,Standard Chartered Financial Services Limited v Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited & 2 others,[2023] KESC 110 (KLR),,".
Cognisant that this court (Lenaola, SCJ) by an order dated May 26, 2023, issued pursuant to rule 46 of the Supreme Court Rules, 2020, deemed the notice of appeal dated December 19, 2022, which was filed in Civil Appeal No 88 of 2000 and transmitted to this court on December 21, 2022 by the applicant, as withdrawn for failure to institute the appeal within the prescribed time; and
2.
Upon perusing the amended notice of motion dated October 30, 2023 and lodged on November 3, 2023 by the applicant under article 50 of the Constitution, sections 3A, 15B, 21A & 23(2C) of the Supreme Court Act and rules 33 & 36 of the Supreme Court Rules seeking the following orders:
“
…
ii.
Review and setting aside of this honourable court’s (Lenaola, SCJ) order dated May 26, 2023 withdrawing the applicant’s notice of appeal dated December 19, 2022 which was filed pursuant to rule 36(4) of the Supreme Court Rules.
…
iv.
Costs of the motion be provided.”
3.
Upon considering the affidavit in support of the motion sworn by Dr Davidson Mwaisaka, the Head of Legal (Kenya & East Africa) of Standard Chartered Bank Kenya Limited, on October 30, 2023 and the applicant’s submissions of even date to the effect that; the Court of Appeal by a judgment dated December 16, 2022 allowed Civil Appeal No 88 of 2000 which had been filed by the 1st and 2nd respondents; in turn, the applicant filed the notice of appeal dated December 19, 2022 in the Court of Appeal and transmitted the same to this Court on December 21, 2022, intimating its intention to challenge the said judgment in this court; thereafter, the applicant filed a notice of motion dated January 20, 2023, Civil Applic No Sup E001 of 2023 (certification motion), anchored on article 163(4)(b) of the Constitution in the Court of Appeal, seeking leave to file an appeal to this court or certification that its intended appeal raises matters of general public importance; the Court of Appeal on April 26, 2023 certified the certification motion as urgent and issued directions with respect to its disposal, which the applicant complied with; and
4.
Further noting that the applicant urged that, its advocates on record received an email from this court on May 29, 2023 concerning the order of May 26, 2023; the said order is erroneous as firstly, the applicant opted to file the notice of appeal prior to obtaining certification or leave to appeal to this Court in line with rule 36(4) of the Supreme Court Rules; secondly, the certification motion was heard on July 3, 2023 by three judge bench of the Court of Appeal (Warsame, M’Inoti & Mativo, JJA) and the ruling thereof is set to be delivered on notice; consequently, time for filing the appeal could only commence running after the certification motion is determined, and certification or leave to appeal is granted as set out in section 15B(1) of the Supreme Court Act; and unless the order dated May 26, 2023 is reviewed and set aside, the applicant will be stripped of its right to a fair hearing by prematurely denying it audience before this court; and
5.
Taking into account the replying affidavit sworn on behalf of the 1st and 2nd respondents by Mohan Galot, the Principal Shareholder, Governing Director and Chairman of the Board of Directors of the said respondents, on November 7, 2023 and submissions of even date. The tenor of which is that, the motion is an abuse of this court’s process as it is misconceived and fatally defective; the applicant has not met the threshold of review since it has failed to demonstrate that the impugned order was obtained through fraud, deceit or misrepresentation or was rendered by an incompetent court; likewise, the applicant has not pointed out any error on the face of the record; and as such, the motion should be dismissed with costs; and
6.
Appreciating that when the motion was mentioned before the Deputy Registrar of this court on November 17, 2023, counsel for the 3rd respondent, Mr Paul Chege, indicated that the 3rd respondent does not oppose the motion; and
7.
Bearing in mind that the learned judge exercised his discretion under rule 46(1) of the Supreme Court Rules in withdrawing the applicant’s notice of appeal as appreciated in Kabuito Contractors Ltd v Attorney General, SC Applic No E025 of 2023; and
8.","Upon deliberations on the motion and the rival submissions, we opine as follows:
i.
The long and short of the applicant’s motion is that it seeks this court to review and set aside the decision of a single judge of this court. Towards that end, the applicant invoked section 21A of the Supreme Court Act, which delineates exceptional circumstances under which this court can review its decision. Nonetheless, the applicant has not demonstrated how the order of May 26, 2023 falls within the said exceptional circumstances. In any event, section 21A is not applicable in this case. See Florence Wairimu Mbugua & Sylvia Murugi Mbugua (Suing as the administrators of the Estate of Joseph Kiarie Mbugua) & another v Timber Manufacturers & Dealers Limited, SC Applic No E019 of 2023.
ii.
Be that as it may, the applicant also invoked section 23(2C) of the Supreme Court Act which provides as follows:
“
A party aggrieved by the decision of a single judge or two judges may apply for review of the decision by five or more judges of the court.”
iii.
In Parliamentary Service Commission v Martin Nyaga Wambora & others, SC Applic No 8 of 2017; [2018] eKLR, this court set the guiding principles for review of a decision of a single Judge or limited Bench of the court made in exercise of the Judges’ discretion. This court held inter alia that-
“
…
vi.
The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:
a.
as a result, a wrong decision was arrived at; or
b.
it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.
iv.
It is not in dispute that following the Court of Appeal’s judgment dated December 16, 2022 in Civil Appeal No 88 of 2000, the applicant filed the notice of appeal dated December 19, 2022 in the Court of Appeal and transmitted the same to this court on November 21, 2022. Moreover, the applicant had not obtained certification by the Court of Appeal under article 163(4)(b) of the Constitution prior to filing the notice of appeal. The applicant contends that it intends to invoke this court’s appellate jurisdiction under article 163(4)(b) of the Constitution. Therefore, it filed the notice of appeal pursuant to rule 36(4) of the Supreme Court Rules which reads as follows:
“
In lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.”
The import of rule 36(4) is that an intending appellant may opt to file a notice of appeal either before or after certification in a matter of general public importance. See Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others, SC Applic No 3 (E008) of 2022; [2022] KESC 25 (KLR).
v.
Further, the applicant urged that it filed the certification motion dated January 20, 2023 before the Court of Appeal and annexed directions issued thereto by the said court on April 26, 2023 to the motion at hand. The applicant submitted that the application was heard on July 3, 2023 and the ruling is set to be delivered on notice. The respondents did not deny the foregoing. Therefore, as it stands the certification motion is still pending before the Court of Appeal. By dint of section 15B(1) of the Supreme Court Act, an appeal under article 163(4)(b) of the Constitution can be filed as follows:
“
15B.
1.
Any appeal to the Supreme Court involving a matter of general public importance shall only be made—
a.
upon certification by the Court of Appeal; or
b.
upon certification by the Supreme Court in accordance with article 163 (4)(b) of the Constitution.”
vi.
It follows therefore that since the certification motion is yet to be determined that time for filing the appeal is as provided under rule 38(1)
“
38.
1.
An appeal to the court shall be filed within—
a.
thirty days of the date of filing the notice of appeal, where the appeal is as of right; or
b.
thirty days after the grant of certification, where such certification is required. [Emphasis added]
vii.
We note that at the time the learned judge issued the order of May 26, 2023, the foregoing was not brought to the attention of the court. Thus, the learned judge cannot be faulted for deeming the notice of appeal as withdrawn. That notwithstanding, we find that the said order will not prejudice the applicant from getting a fair hearing or audience before this court should its certification motion be successful. In the event that certification is issued, the applicant will be at liberty to move the court either by filling a notice of appeal pursuant to the certification or as the case may be under the relevant provision of law. In the circumstances, we decline at this juncture to review and set aside the order of May 26, 2023.
viii.
Taking into account the foregoing and this court’s decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, we deem it fair to order each party to bear their own costs of this motion.
9.
Consequently and for the reasons afore-stated, we make the following orders:
i.
The amended notice of motion dated October 30, 2023 and filed on November 3, 2023 is hereby dismissed.
ii.
Each party shall bear its own costs of the motion.
It is so ordered",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/110/eng@2023-12-28
Petition (Application) E006 of 2023,Gachuhi & another v Evangelical Mission for Africa & another (Petition (Application) E006 of 2023) [2023] KESC 109 (KLR) (Civ) (21 December 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",21 December 2023,2023.0,Nairobi,Civil,Gachuhi & another v Evangelical Mission for Africa & another,[2023] KESC 109 (KLR),,"Upon perusing the notice of motion dated July 28, 2023 and filed on August 2, 2023, brought pursuant to section 21A(a) and (d) of the Supreme Court Act and rule 31 (1) and (6) of the Supreme Court Rules 2020, seeking to review the ruling and orders of this court delivered on June 30, 2023; reinstatement for hearing of the petition dated March 10, 2023 and filed on March 16, 2023; grant of the motion dated March 23, 2023 and filed on March 28, 2023; dismissal of the Motion dated March 30, 2023 and filed on April 4, 2023; and costs; and
2.
Upon considering the applicants’ grounds on the face of the application and affidavit sworn by the 1st applicant on July 28, 2023, in which he contends that; the Judgment of the Court of Appeal (challenged in the petition struck-out) was premised on a non-existent public policy on free primary education; no such policy has been enacted under the Education Act, the Basic Education Act or any other statute; as a consequence, the impugned ruling was premised on a non-existent law and misrepresentation of facts; this court has a constitutional duty to correct the error by the Court of Appeal; and unless the said Ruling is set aside, the applicants’ constitutional rights on the interpretation and applicability of public policies, the rule of law under article 10 and to a fair hearing under article 50 of the Constitution will be violated; and
3.
Further considering the applicants’ submissions dated July 28, 2023 and supplementary submissions dated September 7, 2023, to the effect that this court has jurisdiction to review its decisions, and their application meets the threshold under section 21(A) of the Supreme Court Act. Moreover, the applicants restate their grounds in support and urge that the superior courts below lacked the jurisdiction to pronounce public policy on matters of enforcement of an award against private educational institutions, when no such policy has been enacted; the public policy alleged and relied on by the said courts violated articles 232(1)(d) and 10(1)(c) of the Constitution and section 12 of the Public Service (Values and Principles) Act; this court has an inherent jurisdiction to ensure that an injustice is not committed, as was its finding in Dynes Muriithi & 4 others v Law Society of Kenya & another; SC (Application) No 12 of 2015, [2016] eKLR; therefore the Court had jurisdiction to entertain the appeal dismissed by the impugned ruling but fell in error in striking out the same; and
4.
Having read the respondents’ grounds of opposition dated August 25, 2023, and filed on August 28, 2023, wherein it is urged that the application is an abuse of court process and should be dismissed in limine; this court lacks the requisite jurisdiction to hear and determine the instant application as it does not fall within the purview of section 21(A) of the Supreme Court Act; the said application does not meet the threshold settled in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others; SC Petition No 6 of 2014, [2017] eKLR (Fredrick Outa case); and that the Appeal which was struck out did not raise any issues of contestation revolving around the interpretation or application of the Constitution, to warrant the exercise of this court’s jurisdiction under article 163(4)(a) of the Constitution; and
5.
Upon considering the respondents’ submissions dated August 25, 2023 and filed on August 28, 2023, wherein the respondents restate their grounds in opposition and further urge that this court, having determined it lacked the jurisdiction to hear the appeal by the applicants under the principles settled in the Geo Chem Middle East v Kenya Bureau of Standards; SC Petition No 47 of 2019, [2020] eKLR, similarly lacks the jurisdiction to entertain the instant application; and the applicants are misleading the court regarding several public policies on education, such as the Sessional Paper No 1 of 2005 on Education Training and Research, and the TIVET Institutions Guidance and Counselling Policy and Operational Guidelines (2011); and
6.
Bearing in mind that the legal position as regards this court’s power to review its own decisions is well settled in the cases of Jasbir Singh Rai & 3 others v Tarlochan Signh Rai & 4 others; SC Petition (Application) No 4 of 2012, [2013] eKLR and Fredrick Otieno Outa; wherein this court held that, as a general rule, the Supreme Court has neither the jurisdiction to sit on appeal over its own decisions, nor the jurisdiction to review its decisions, other than in the manner contemplated by section 21(A) of the Supreme Court Act , that is where:
i.
The judgment, ruling or order is obtained through fraud, deceit or misrepresentation of facts;
ii.
The judgment, ruling or order is a nullity by virtue of having been made by a court which was not competent;
iii.
The court was misled into giving judgment, ruling or order under the belief that the parties have consented thereto; and
iv.
The judgment, ruling or order was rendered on the basis of repealed law or as a result of a deliberate concealment of a statutory provision.","We now opine as follows:
i.
Having considered the pleadings and submissions by the parties herein, we find that the applicants have not demonstrated to our satisfaction that the impugned ruling was obtained by fraud or deceit, is a nullity, was rendered on the basis of a repealed law, or as a result of a deliberately concealed statutory provision, or that the court was misled into giving its ruling under review on a mistaken belief that the parties had consented thereto (as per the legal principles settled in the Fredrick Otieno Outa) case; and
ii.
In our view, the instant application is an appeal disguised as a motion for review, and therefore does not fall within the confines of the parameters prescribed in the foregoing paragraphs.
8.
Consequently and for reasons aforesaid, we make the following orders:
i.
The notice of motion dated July 28, 2023 and filed on August 2, 2023 is hereby dismissed; and
ii.
The applicants shall bear the respondents’ costs.
It is so Ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/109/eng@2023-12-21
Petition (Application) E027 of 2023,Goodison Sixty One School Ltd v Symbion Kenya Ltd; Ngotho (Intended Interested Party) (Petition (Application) E027 of 2023 & Application E042 of 2023 (Consolidated)) [2023] KESC 111 (KLR) (21 December 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko",21 December 2023,2023.0,Nairobi,Civil,Goodison Sixty One School Ltd v Symbion Kenya Ltd; Ngotho (Intended Interested Party),[2023] KESC 111 (KLR),,"Before this court are three separate motions brought by the parties for determination. Although not related, the motions are intertwined and therefore, to ensure prudent use of judicial time, we will dispose of them in this composite ruling. The first application is by Paul Ngotho (intended interested party) seeking to be joined in the petition as an interested party. The second application is by the respondent seeking the striking out of Petition No E027 of 2023 - Goodison Sixty-One School Ltd vs Symbion Kenya Ltd for want of jurisdiction and the third application is by the appellant seeking leave to exceed the mandatory limit of 15 pages of written submissions in support of the Petition; and
2.
Uponperusing the motion by the intended interested party dated October 6, 2023 brought pursuant to section 23(2B)(a) of the Supreme Court Act, 2011 as well as rule 24 of the Supreme Court Rules, 2020 seeking leave to participate in the proceedings as indicated above; and
3.
Uponconsidering the grounds in support of the application and the averments contained in the supporting affidavit and further affidavit sworn by Paul Ngotho, the Arbitrator who determined the dispute between the appellant and respondent, wherein he inter alia contends that; he has been mentioned in the pleadings before this court and was subject of the proceedings in High Court Misc Civil Cause No 131 of 2016 as well as Consolidated Appeal Nos 158, 159 and 160 0f 2020; he rendered the final arbitral award on February 25, 2016 in favour of the Respondent; the appeal is premised on the proceedings before the Arbitral Tribunal and Award issued by him and therefore, it is necessary for him to be joined in the proceedings; the appellant alleges that the intended interested party was biased and that he denied it fair hearing causing it prejudice, hardship and injustice resulting into a defective, unfair and unlawful arbitral process; the appellant alleges breach of duty to disclose, lack of impartiality and independence on his part; the appellant owes him unpaid arbitration fees assessed at Kshs 2,500,000/- together with interest accrued from the date of the award until its payment in full; the appellant challenges the integrity of the arbitral process, making it necessary for him to be joined to the proceedings to shed light on the process and aid the court in making a fair and just determination; he has a clear, identifiable interest separate and distinct from those advanced by the parties herein; and he stands prejudiced should he not be joined as an interested party; and
4.
Notingthe intended interested party’s submissions dated October 11, 2023, wherein he reiterates the contents of his supporting affidavit and further submits that; the appellant has alleged denial of his right to fair hearing, bias under article 50(1) and 159(2) of the Constitution and so he deserves an opportunity to respond to the allegations and should be joined as an interested party; issues of his alleged bias/incompetence cannot be settled unless he is a party; he has satisfied all the requirements for joinder as an interested party as outlined by this court in Francis K Muruatetu and another v Republic SC Petition No 15 of 2015 as consolidated with Petition No 16 of 2015; [2016] eKLR; and he stands to suffer prejudice if not joined as an interested party; and
5.
Taking into accountthe motion dated October 9, 2023 by the respondent brought under article 163(4)(a) of the Constitution, sections 15, 15A, 15B of the Supreme Court Act, 2011 and rules 31, 32 & 33 of the Supreme Court Rules, 2020 seeking that Petition No E027 of 2023 be struck out for want of jurisdiction; and
6.
Consideringthe grounds in support of the application and the averments contained in the supporting affidavit sworn by Oscar Ogunde, Director, Symbion Kenya Ltd wherein he contends that; this court lacks jurisdiction to hear and determine the petition under article 163(4) (a) of the Constitution; the appellant has not sought certification from the Court of Appeal that the matter raises issues of general public importance and that in any event, the petition does not fall within the ambit of matters contemplated by article 163(4)(b) of the Constitution as was held by this court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party) SC Petition No 12 of 2016 [2019] eKLR (Nyutu Agrovet Ltd case); and that there is no provision for a further appeal from the Court of Appeal on an arbitration matter; and
7.
Also consideringthe respondent’s submissions dated October 9, 2023 and submissions in reply dated November 1, 2023 wherein it reiterates the contents in support of the application and submits that; this Court has in numerous decisions unequivocally set the principles governing the invocation of its jurisdiction under article 163(4)(a) of the Constitution; the initial test lies in determining the issues addressed at the High Court and whether the superior courts settled issues concerning interpretation and application of the Constitution; no issues of constitutional application or interpretation arose at the High Court and the Court of Appeal as the dispute was rooted on a contractual breach; this court in Geo Chem Middle East v Kenya Bureau of Standards SC Petition No 4 of 2019 [2020] eKLR (Geo Chem case) held that it lacks jurisdiction on arbitration appeals from the Court of Appeal; and
8.
Cognizantof the appellant’s motion dated October 12, 2023 brought under rule 31 of the Supreme Court Rules, 2020 seeking leave to exceed the limit of 15 pages for written submissions in support of the Petition of Appeal; and
9.
Notingthe grounds in support of the application and the averments contained in the supporting affidavits sworn by Salah El-Din Amin, Advocate, wherein he contends that; the petition arises from the consolidated judgment of the Court of Appeal in respect of 3 substantive and distinct civil appeals based on diverse provisions of the Arbitration Act, 1996 and Constitution as well as other laws of Kenya; separate submissions were filed by the parties in the 3 substantive appeals at the Court of Appeal; it is not seeking to file 15 pages per appeal but 27 pages for the consolidated appeal; no prejudice will be caused to the respondent if the application is allowed; and
10.
Uponreading the submissions of the appellant dated October 12, 2023 wherein it reiterates the contents of its supporting affidavits and submits further that; article 159(2)(d) of the Constitution and section 3 of the Supreme Court Act, 2011 grants the Court inherent powers to give directions necessary for the due administration of justice; the 15 page limit prescribed in Direction No 17(a)(i) of the Supreme Court (General) Practice Directions is a mere technicality which ought not, in appropriate circumstances, be given due regard if that would result in an injustice to any party; and
11.
Bearing inmindthe replying affidavit sworn on October 13, 2023 and October 25, 2023 by Zainab Jaffer, the Director of the appellant, in reply and opposition to the intended interested party’s application for joinder and the respondent’s application seeking to strike out the petition, wherein she contends that the intended interested party’s application is made in bad faith and motivated by mischief as he waived his right to appear and respond to the appellant’s application challenging his appointment at the High Court and also opted not to participate in any aspect of further proceedings at the High Court as well as the Court of Appeal; the application to strike out the appellant’s petition is frivolous, vexatious and an abuse of the process and ought to be struck out; the petitioner has raised issues of interpretation and application of the Constitution in all proceedings before the superior courts and all the matters of law raised by the respondent in its application are duly and comprehensively addressed in the appellant’s petition; the respondent has consistently sought to silence the appellant by erecting jurisdictional hurdles and procedural technicalities to avoid the determination of the substantive issues by courts; and
12.
Upon Furtherconsidering the appellant’s submissions in reply to the intended interested party and the respondent’s submissions in support of their motions wherein it reiterates the contents of its pleadings and submissions; and","Having considered the applications, responses, and submissions before us,
We now opine as follows:
i.
This court has previously settled the twin questions of whether both the Court of Appeal and the Supreme Court are vested with the jurisdiction to hear and determine appeals arising out of arbitration disputes. Particularly, in Geo Chem Middle East case (supra) we held that, in determining the above questions, the court has to first evaluate whether the contested issues in the petition were issues of constitutional controversy that had been substantively determined by the High Court and the Court of Appeal.
ii.
In applying the above finding to the present matter, we note that the appellant invoked the provisions of articles 50, 149, and 165 of the Constitution in its first application which sought to review the orders of Ochieng’ J. To contextualize matters, in his ruling, the learned judge declined the invitation by the appellant to remove the Arbitrator and annul the arbitration proceedings finding that the application had been made after the final award had been delivered and the Arbitrator could not be condemned unheard. Mwongo J in a decision delivered on 2nd May 2017- on review of Ochieng J’s orders - declined to interpret or apply any provisions of the Constitution and instead stated that reliance on articles 50, 149 and 165 aforesaid was untenable and that it was debatable whether,a decision of the court made under section 14 of the Arbitration Act could be reviewed, and whether section 3A of the Civil Procedure Act, as invoked by the appellant, was also applicable to proceedings under section 14. Therefore, the High Court specifically Mwongo J only tangentially touched on the constitutional issues raised but did not meaningfully interpret or apply the Constitution. In the original application before Ochieng J which triggered the one before Mwongo J, Ochieng J did not once refer to the Constitution in his ruling.
iii.
In disposing of the third and fourth applications, Tuiyott J (as he then was) delivered rulings on April 13, 2018 and December 7, 2018. In the said rulings, the learned judge found that the issues raised before him - on the alleged bias and partiality of the Arbitrator - ought to have been raised before Ochieng J and once they were not, then he was not minded to give them any consideration. He added that, in any event, the Arbitrator conducted the proceedings fairly and ought to be commended and not condemned. All these issues, which are the main subject of the appeal before us, did not involve the interpretation and application of the Constitution in the manner expected by article 163(4)(a) of the Constitution.
iv.
The record also shows that the Court of Appeal did not interrogate any issues involving the interpretation and application of the Constitution at all. In its judgment, the court delineated two issues for determination; whether failure by the appellant to seek leave to appeal rendered the appeal incompetent and whether the three appeals before it fell within the ambit of the exceptional circumstances contemplated by the Nyutu case (supra) in any appeal arising from an application to set aside an arbitral award under section 35 of the Arbitration Act. In disposing the above issues, the Court of Appeal held that the appellant never sought and obtained leave either from the High Court or the Court of Appeal before filing its appeal and therefore dismissed Civil Appeal No 159 of 2020. In doing so, it also observed that a decision not anchored on section 35 of the Arbitration Act is not appealable to the Court of Appeal thus dismissing Civil Appeal Nos 158 and 160 of 2020.
v.
Therefore, in line with the guiding principles set in Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & another SC Petition No 3 of 2012; [2012] eKLR the issues before the superior courts did not involve the interrogation of any constitutional question(s) that rose through the normal appellate mechanism to enable this court exercise its jurisdiction on the interpretation and application of the Constitution under article 163(4)(a) of the Constitution.
vi.
Furthermore, in Nyutu Agrovet Ltd case (supra) we stated as follows: “Reading each of the above provisions, alleged breaches of the Constitution cannot be properly introduced by way of an application to set aside an arbitral award. Breaches of the Constitution are properly governed by Articles 165(3) and 258 of the said Constitution and cannot by litigational ingenuity be introduced for adjudication by the High Court by way of invocation of section 35 of the Arbitration Act.”
vii.
In Synergy Industrial Credit Limited v Cape Holdings Limited SC Petition No 2 of 2017 [2019] eKLR (Synergy case) we also stated:
“
Generally, therefore, once parties agree to settle their disputes through arbitration, the arbitral tribunal should be the core determinant of their dispute. Once an award is issued, an aggrieved party can only approach the High Court for setting aside the award, only on the specified grounds. And hence, the purpose of Section 35 is to ensure that courts are able to correct specific errors of law, which if left alone would lead to a miscarriage of justice. Therefore, even in promoting the core tenet of arbitration which is a quicker and efficient way of settling commercial disputes, that should not be at the expense of real and substantive justice. In the interest of safeguarding the integrity of the administration of justice and particularly in the absence of an express bar we, like the House of Lords in Inco Europe Ltd & others (supra), hold that the Court of Appeal should have residual jurisdiction but only in exceptional and limited circumstances”.
viii.
The court, in addressing appeals arising from section 35 of the Arbitration Act, added as follows in the Synergy case (supra):
“
An arbitral award may be set aside by the High Court only if-
a.
the party making the application furnishes proof-
i.
that a party to the arbitration agreement was under some incapacity; or
ii.
the arbitration agreement is not valid under the law to which the parties have subjected it to or, failing any indication of that law, the laws of Kenya; or
iii.
the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
iv.
the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decision on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside; or
v.
the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless that agreement was in conflict with a provision of this Act from which the parties cannot derogate; or failing such agreement, was not in accordance with this Act; or
vi.
the making of the award was induced or affected by fraud, bribery, undue influence or corruption;
b.
the High Court finds that-
i.
the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
ii.
the award is in conflict with the public policy of Kenya.”
ix.
In view of the above holding and our findings in this ruling, it is our considered opinion that this court does not have jurisdiction under article 163(4)(a) of the Constitution to hear and determine the present appeal as the matters before the superior courts did not involve interpretation and application of the Constitution at all. The issues relating to the conduct of the Arbitrator and the arbitral proceedings which were at the core of the applications before the High Court cannot by any shade of imagination translate into issues requiring the interpretation of the Constitution. Furthermore, the appellant's case has not met the criteria set in the Synergy case (supra) to have enabled either the Court of Appeal or this court to have jurisdiction to entertain the same. As a consequence, Petition No E027 of 2023 is struck out for want of jurisdiction.
x.
Having struck out Petition No E027 of 2023 it follows that the applications seeking joinder of the intended interested party and leave to exceed the page limit of the appellant’s submissions are rendered otiose.
xi.
It is settled that costs follow the event, but the court may in appropriate cases exercise discretion and with good reason, decide otherwise as was held by this court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others, SC Petition No 4 of 2012; [2013] eKLR. The respondent being the successful party, is entitled to costs. The appellant shall therefore bear the costs incurred by the respondent. The intended interested party shall bear the costs of his application.
14.
Accordingly, we make the following orders:
a.
The notice of motion dated October 9, 2023 is hereby allowed.
b.
Petition No E027 of 2023 is hereby struck out.
c.
The notice of motion dated October 6, 2023 is hereby struck out.
d.
The notice of motion dated October 12, 2023 is hereby struck out.
e.
We hereby direct that the sum of Kshs 6000/- deposited as security for costs in the appeal herein be refunded to the appellant.
f.
The appellant shall bear the costs of the application dated October 9, 2023 and the same shall be paid to the respondent only. The intended interested party shall bear his costs.
15.
It is so ordered.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/111/eng@2023-12-21
Petition E010 of 2023,Khan v International Commercial Company (K) Ltd (Petition E010 & E009 of 2023 (Consolidated)) [2023] KESC 107 (KLR) (21 December 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",21 December 2023,2023.0,Nairobi,Civil,Khan v International Commercial Company (K) Ltd,[2023] KESC 107 (KLR),,"A. Introduction
1.
Before the court are two appeals by the appellant both dated March 31, 2023 and filed on April 3, 2023, pursuant to articles 163(4)(a), and 258(1) of the Constitution, sections 3(a)(e), 3A, 15(2) and 15A of the Supreme Court Act, 2011 and rule 38(1) (a) of the Supreme Court Rules, 2020. The appeals challenge the decisions of the Court of Appeal in Civil Appeals Nos 63 and 124 of 2018, both delivered on February 17, 2023 which dismissed the appellant’s appeals challenging the Employment and Labour Relations Court’s (ELRC) hearing directions issued on December 1, 2017 by Onyango J and February 14, 2018 by Makau J the appellate court reasoned that the learned Judges of the trial court had correctly exercised their discretion in issuing the impugned directions.
2.
By a consent dated May 17, 2023 and adopted on May 26, 2023, the two appeals were consolidated with Petition No E010 of 2023 designated as the lead file.
B. Background
i. Proceedings at the Employment and Labour Relations Court
3.
The appeal originates from an employment dispute. The appellant was employed by the respondent until the termination of his employment on May 2, 2012. Aggrieved, the appellant filed ELRC Case No 66 of 2013 where he inter alia alleged unfair constructive dismissal on grounds that he was required to manage a newly completed commercial development that had core construction defects, without any comparative salary increment. During the pendency of the suit, the parties filed several applications but of importance to this appeal are two applications highlighted below.
4.
The appellant’s first application sought the recusal of Mbaru J citing bias for inter alia permitting surprise oral evidence without a witness statement thus denying the appellant the right to further cross-examine the respondent’s witness after re-examination and also for denial of leave to amend his pleadings. Vide a Ruling delivered on January 24, 2014, Mbaru J dismissed the application for recusal and denied the appellant leave to amend his pleadings. Aggrieved, the appellant appealed against the ruling. The Court of Appeal allowed the amendment but made no orders as to the learned judge’s recusal. That appeal is not subject of the present proceedings.
5.
Upon resumption of hearing before the ELRC, the appellant wrote a complaint letter dated September 15, 2017 against Mbaru J, detailing his dissatisfaction with the manner in which the suit was handled. On September 29, 2017, the learned Judge recused herself to bolster the appellant’s confidence that justice would be dispensed impartially. The learned Judge also referred the matter back to the Principal judge of the ELRC for re-allocation to another trial Judge.
6.
Subsequently, the matter was listed for directions on December 1, 2017 before the Principal Judge, Onyango J, and after hearing the parties, she directed that; the matter be heard by court No 3; all the applications pending determination be consolidated and heard with the main claim; parties were precluded from filing any other applications pending the hearing of the substantive suit; and the matter was fixed for hearing on February 5, 2018. These directions of December 1, 2017 were to become the subject of appeal in Civil Appeal No 63 of 2018.
7.
Pursuant to the directions issued on December 1, 2017, the appellant filed a second application for stay pending appeal, and the same was listed for hearing before Radido J on January 18, 2018 wherein the judge directed that the file be placed before the principal judge for further directions. On January 22, 2018, parties appeared before Onyango J who declined to hear the application and noted that the matter had been scheduled for hearing on February 5, 2018 before court No 3. On the date fixed for the hearing, the matter was mentioned before the Deputy Registrar who fixed it for hearing on February 14, 2018.
8.
On February 14, 2018, the parties appeared before court No 3 presided over by Makau J and after hearing the parties’ contesting arguments on which of the pending applications was to be heard first, the learned Judge directed that; the court do focus on finalizing the substantive suit; the applications that challenged the competency of pleadings be heard on priority basis to pave way for the hearing of the part-heard suit; notices of motion dated June 6, 2017 seeking to strike out the defence and the one dated June 27, 2016 seeking to strike out the amended claim be heard on a priority basis; parties to file submissions; and the matter be mentioned for highlighting of submissions on March 20, 2018. These directions further aggrieved the appellant and are the root of Civil Appeal No 124 of 2018.","D. Analysis and Determination
29.
Having considered the respective parties’ pleadings and submissions in the appeal before us, we are of the considered view that the following issues emerge for determination:
i.
Whether the jurisdiction of this court has been properly invoked under article 163(4)(a) of the Constitution; and
ii.
If the answer to (i) is in the affirmative,
a.
whether the trial court properly exercised it discretion;
b.
whether the appellant’s fundamental rights had been infringed; and
c.
What reliefs are available to the appellant?
i. Whether the jurisdiction of this court has been properly invoked under article 163 (4) (a) of the Constitution
30.
The appellant invoked this court’s jurisdiction under article 163(4)(a) of the Constitution alleging that the directions, actions, or omissions of the learned judges of the ELRC took a constitutional trajectory involving interpretation and application of the Constitution, particularly the Bill of Rights and therefore he is properly before us. Moreover, that the Court of Appeal was called upon to pronounce itself on the breaches of the Constitution but it ignored the breaches occasioning gross miscarriage of justice.
31.
At the core of the respondent's response to the above contentions is that the appeal does not involve any issue of interpretation or application of the Constitution and as such the court does not have jurisdiction to entertain the same. Furthermore, that the appeal arose from interlocutory applications and the exercise of discretionary powers by the ELRC, and the superior courts did not therefore interpret or apply any constitutional provisions with finality.
32.
From the foregoing, this court is called upon to evaluate its jurisdictional standing to entertain this appeal, that is, whether the appeal raises questions of constitutional interpretation or application of the Constitution and whether the same has progressed through the appropriate appellate mechanisms so as to reach this court by way of an appeal as contemplated under article 163(4)(a) of the Constitution.
33.
This court has in many instances addressed the question of its jurisdiction under article 163(4)(a) of the Constitution. The court in that regard specifically laid down the guiding principles in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another SC Petition No 3 of 2012; [2012] eKLR, Peter Oduor Ngoge v Francis Ole Kaparo & 5 others SC Petition No 2 of 2012 [2012] eKLR and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 other SC Application No 5 of 2014 [2014] eKLR. The court was also categorical on this issue when it stated thus in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013; [2014] eKLR: “In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this court in handling this appeal, is whether
the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the superior courts and has progressed through the normal appellate mechanism so as to reach this court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution.”
34.
This position was furthermore reaffirmed by the court in Rutongot Farm Ltd v Kenya Forest Service & 3 others [2018] eKLR where we emphasized that;
“
“…in order to evaluate the jurisdictional standing, the test is whether the appeal raises a question of constitutional interpretation or application and whether such a constitutional issue has been canvassed in the superior courts leading to the present appeal. In order to establish that fact, the court needs to ask itself the following questions:
i.
What was the question in issue at the High Court and the Court of Appeal?
ii.
Did the superior Courts dispose of the matter after interpreting or applying the Constitution}}?
iii.
Does the instant appeal raise a question of constitutional interpretation or application, which was the subject of judicial determination at the High Court and the Court of Appeal?”
35.
In applying the above holdings to the present issue, we note that the first set of directions, subject of the appeal herein, were issued by Onyango J on December 1, 2017 where she directed as follows:
“
The matter will be heard by court 3; All the applications will be consolidated with the claim and heard together; parties will not be allowed to file further applications pending the hearing of the case; the case is fixed for hearing on February 5, 2018.”
36.
The second set of directions which are the subject of the appeal before us were given by Makau J as follows:
“
The court will focus on finalizing the suit i.e. the dispute between the employer and employee. I will fix the hearing date from the applications,which challenge the pleadings so that after the issue of the pleadings is settled, we can focus on the trial which is already part-heard. The notice of motion dated June 5, 2017 by the claimant seeking to strike out defence and the notice of motion dated June 27, 2017 seeking to strike out the amended claim will be heard on a priority basis. The submissions have been filed for the claimant’s motion. Respondent is given 14 days to file and serve the motion dated 27.6.2017 and thereafter to file submission and serve within 14 days after service. Mention for highlighting on March 20, 2018.”
37.
A plain reading of the above directions reveals that the directions emanated from interlocutory matters before the trial court. No substantive questions of interpretation and application of the Constitution therefore arose at the ELRC during the proceedings leading to the directions issued by the two learned judges. What was before the ELRC concerned normal court processes during the conduct of the matter which was aimed at aiding the disposal of the matter and not cogent issues of constitutional controversy.
38.
Similarly, the determination of the Court of Appeal in both appeals before it revolved around the single issue of the exercise of discretion by the learned judges of the ELRC. Even though the Court of Appeal tangentially touched on the issue of violation of the appellant’s fundamental rights, it found that there was no evidence to support the assertions and that was the end of that matter.
39.
In Ananias N Kiragu v Eric Mugambi & 2 others SC Civil Application No 10 of 2019; [2020] eKLR we stated thus:
“
8.
As a general rule, the Supreme Court does not entertain appeals on interlocutory decisions where the substantive matter is still pending before the superior courts save where the appeal is not only on a substantive determination by the Court of Appeal of a constitutional question but also on an issue that had been canvassed right through from the High Court to the Court of Appeal even though the substantive matter is still pending before the High Court…”
40.
This position was reiterated and reaffirmed by this court in Paul Mungai Kimani & 2 others v Kenya Airports Authority & 3 others SC Petition No 11 of 2019; [2021] eKLR where we observed:
“
(44)
We have severally held that this court has no jurisdiction to entertain appeals from interlocutory decisions save where the interlocutory decision in question is a substantive determination of a constitutional issue that has been canvassed through the superior courts below.”
41.
Having found that the trial court did not determine any constitutional issue in its directions issued on December 1, 2017 and February 14, 2018 and that the Court of Appeal only tangentially touched on the issue of the violation of the appellant’s rights, we are of the considered view that the same has not progressed though the appropriate appellate mechanisms to properly reach this Court under article 163(4)(a) of the Constitution. Moreover, bearing in mind that the appeal herein originated as a result of interlocutory directions or orders from the ELRC and that the substantive matter is still pending determination before the ELRC, we find that this court does not have jurisdiction to entertain it.
42.
Having concluded that this court lacks jurisdiction to adjudicate the appeal pursuant to article 163(4)(a) of the Constitution, it consequently follows that the court is unable to assess whether the trial court appropriately exercised its discretion and whether the rights of the appellant were violated.
43.
It is well established that costs follow the event but the court may in appropriate cases exercise discretion and order otherwise as was our holding in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others; SC Petition 4 of 2012; [2013] eKLR. The appellant, acting in person, impressed us with his clear submissions, misguided as they were for the reasons above, and he ought to have anticipated the consequences of his pursuit of a lost cause. Consequently, we shall exercise discretion and award costs to the respondent.
E. Orders
44.
Consequently, we issue orders as follows:
1.
Petition No E010 of 2023 dated March 31, 2023 is hereby dismissed.
2.
Petition No E009 of 2023 dated March 31, 2023 is hereby dismissed.
3.
Costs of the two appeals are hereby awarded to the respondent.
4.
We hereby direct that the sum of Kshs 6,000/- deposited as security for costs in each of the appeals herein be refunded to the appellant.
45.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/107/eng@2023-12-21
Application E018 of 2023,Wanga v Republic (Application E018 of 2023) [2023] KESC 108 (KLR) (Civ) (21 December 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, N Ndungu, W Ouko",21 December 2023,2023.0,Nairobi,Criminal,Wanga v Republic,[2023] KESC 108 (KLR),,"Upon perusing the notice of motion by the applicant dated July 4, 2023 and filed on July 5, 2023 pursuant to article 163(4)(a) of the Constitution, sections 15, 21 and 23 of the Supreme Court Act, 2011 and rules 15 and 36 of the Supreme Court Rules, 2020 seeking the following orders:
1.
That this application be heard by two or more judges as a preliminary procedure to determine extension of time in accordance with section 23(2A)(b) of the Supreme Court Act.
2.
That the honourable court exercises its powers under section 21 (1) of the Supreme Court Act, rule 15 (2) of the Supreme Court Rules, 2020 and articles 22 (1), 50 (2) (q) and 51 (2) of Constitution of Kenya to extend the time limit in rule 36 (1) for filing the notice of appeal that accompanies this application;
3.
That the honourable court admits further evidence to be submitted by the appellant as may be necessary for determining the appeal, in accordance with section 20 of the Supreme Court Act and article 50(2)(k) of the Constitution, and the Supporting Affidavit of Timothy Bryant filed herein; and
4.
Any such further or other orders as the appellant may request and this honourable court deem fit in all circumstances.
1.
Noting that on September 1, 2023, a consent order was adopted by this court on the following terms:
1.
That by consent dated August 17, 2023 and filed online on August 21, 2023, duly executed by the firm of Bryant’s Law LLP, counsel for the appellant; and Office of the Director of Public Prosecutions for the respondent, wherein they consent that the Supreme Court do extend time to the appellant to file [his appeal] within the next fourteen days (14 days) from the date thereof, the said consent is hereby adopted as an order of this Court.
2.
That the notice of motion dated July 4, 2023 be placed before the hon Chief Justice and President of the Supreme Court for empanelment of a bench to hear and determine prayer 3.
The applicant has since filed its appeal being SC Petition No E030 of 2023- Godrick Simiyu Wanga v Republic and therefore, the only outstanding issue from the prayers sought in the application is prayer 3 which seeks leave to adduce additional evidence; and
3.
Upon now perusing the grounds on the face of the application, supporting affidavit sworn on July 4, 2023 by Timothy Bryant, counsel for the applicant, and written submissions filed on July 5, 2023 wherein he submits that the intended appeal raises issues of general public importance anchored on violation of articles 29, 48 , 49 & 50 of the Constitution and in particular; the lower court’s failure to recall PW1 for cross-examination; the Court of Appeal’s failure to re-analyse the evidence; violation of the applicant’s right to cross examine the complainant and violation of the applicant’s right to counsel. Further, that the applicant wishes to call fresh evidence in the nature of affidavit evidence on the circumstance of the applicant’s arrest and first trial, empirical research on the right to fair trial and the adverse effects if such a right is violated; and
4.
Upon perusing the respondent’s submissions dated August 9, 2023 and filed on August 16, 2023 wherein it is submitted that the application for leave to appeal out of time is not the appropriate place to seek admission of fresh evidence. In opposing the grant of that prayer, the respondent also contends that the same does not meet the criteria set out in section 20 of the Supreme Court Act as well as rule 26 of the Supreme Court Rules. The respondent cites this court’s decision in Cyrus Shakhalanga Khwa Jirongo v Soy Developers Limited & 9 others [2011] eKLR in support of that contention where this court held that an applicant has to demonstrate inter alia that the fresh evidence could not have been obtained by him upon the exercise of due diligence; and","""Having considered the totality of the Application, and Submissions put forth, we opine as follows:
i.
Section 20 of the Supreme Court Act, 2011 as read with rule 26 of the Supreme Court Rules grant this court power to admit additional evidence in an appeal before it. Section 20 of the Act provides the issues the court should consider before doing so. They are whether the additional evidence-
a.
is directly relevant to the matter before court;
b.
is capable of influencing or impacting on the decision of the court;
c.
could not have been obtained with reasonable diligence for use at the trial;
d.
was not within the knowledge of the party seeking to adduce the additional evidence;
e.
removes any vagueness or doubt over the case;
f.
is credible and bears merit;
g.
would not make it difficult or impossible for the other party to respond effectively; and
h.
discloses a case of wilful deception to the court.
ii.
This court has also expressed in Mohamed Abdi Mahamad v Ahmed Abdullahi Mohamed & 3 others SC Petition Nos 7 & 8 of 2018; [2018] eKLR, Evans Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others SC Petition No 18 & 20 of 2014; [2014] eKLR, and more subtly in Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others SC Petition No 38 of 2019; [2020] eKLR that the exercise of this jurisdiction shall not be whimsical, and the court would not be in haste in granting the same.
6.
Applying the above principles to the present application particularly the need to exercise restraint in admitting fresh evidence, we note that in his application, the applicant was initially seeking leave to file his notice of appeal out of time which prayer was granted by consent. He subsequently filed his appeal and it is our finding that an application for additional evidence should be predicated upon a filed appeal and upon the applicant showing that the additional, new and fresh evidence could not have been obtained with reasonable diligence for use at the trial; was not within his knowledge; or could not have been produced at the time of the suit or petition. Where a prayer is made for admission of additional evidence together with the prayer for leave to file an appeal out of time and there being no appeal on record at the time of filing the application, the prayer is clearly premature. The reason for this is that the petition of appeal is the one that contains all the grounds of appeal, the facts and evidence in support thereof as well as the applicable law and without it, the court cannot properly determine the prayer for admission of additional evidence.
7.
Furthermore, the applicant has not set out the additional evidence he seeks to adduce. He has merely alluded to affidavit evidence on the circumstances of his arrest, empirical evidence on the right to a fair trial and the adverse effects of violation of that right. The court cannot determine the relevance or the credibility of the fresh evidence and whether the same fits the criteria set out in section 20 of the Supreme Court Act with such bare material placed before us by the applicant’s counsel. In the circumstance, the application for this and the reasons above, must fail.
8.
On costs, award of the same is discretionary and follows the principle set out by this court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. On this account, it is only prudent that we defer the issue of costs and abide await the outcome of the appeal.""",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/108/eng@2023-12-21
Petition 32 (E036) of 2022,"Fanikiwa Limited & 3 others v Sirikwa Squatters Group & 17 others (Petition 32 (E036), 35 (E038) & 36 (E039) of 2022 (Consolidated)) [2023] KESC 105 (KLR) (15 December 2023) (Judgment)",Judgement,Supreme Court of Kenya ,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",15 December 2023,2023.0,Nairobi,Civil,"Fanikiwa Limited
1st Appellant
Mary Jepkemboi Too and Sophie Jelimo Too (Suing as joint administrators ad litem of the Estate of Mark Kiptarbei Too)
2nd Appellant
Lonrho Agribusiness (EA) Limited
3rd Appellant
David Korir
4th Appellant
and
Sirikwa Squatters Group
1st Respondent
The Commissioner Of Lands
2nd Respondent
The Chief Registrar Of Titles
3rd Respondent
Director Of Land Adjudication And Settlement
4th Respondent
Director Of Survey
5th Respondent
District Land Officer, Uasin Gishu District
6th Respondent
Highland Surveyors
7th Respondent
Kennedy Kubasu
8th Respondent
Ahmed Ferej & 60 others
9th Respondent
Richard Kirui & 15 others
10th Respondent
Stanbic Limited
11th Respondent
Kenya Commercial Bank Limited
12th Respondent
Eco Bank Limited
13th Respondent
Milly Chebet
14th Respondent
National Bank Of Kenya Limited
15th Respondent
Kenya Women Micro-Finance Bank
16th Respondent
Commercial Bank of Africa
17th Respondent
Co-operative Bank of Kenya
18th Respondent",[2023] KESC 105 (KLR),,"A. Introduction
1.
Three appeals were filed before this court, that is, petition No 32 (E036) of 2022 by Fanikiwa Limited (Fanikiwa), petition No 35 (E038) of 2022, by Mary Jepkemboi Too & Sophie Jelimo Too (suing as joint administrators ad litem of the estate of Mark Kiptarbei Too) (administrators of the estate of Mark Too), and petition No 36 (E039) of 2022 by Lonrho Agribusiness (EA) Ltd & David Korir The appeals which are dated November 21, 2022, December 14, 2022 and December 23, 2022, respectively, are anchored on article 163(4)(a) of the Constitution. Subsequently, by a consent order dated January 31, 2023, the three appeals were consolidated with Petition No 32 (E036) of 2022 designated as the lead file.
2.
The consolidated appeal challenges the judgment of the Court of Appeal ((Kiage, M’Inoti & Mumbi Ngugi, JJA) in Civil Appeal No 45 of 2017 (consolidated with Civil Appeal No 44 & 68 of 2017) delivered on November 18, 2022. In a nutshell, the dispute that culminated in the consolidated appeal revolves around the ownership and/or entitlement to parcels which were registered as LR Nos 9606, 9607, 9608, 745, 742/2, 7739/7R, 12398, 10793 and 10794 in the former Uasin Gishu District (the suit parcels).
B. Background
i. Factual history
3.
The suit parcels were registered under the repealed Registration of Titles Ordinance (subsequently referred to as the repealed Registration of Titles Act (RTA). The grants/titles to the suit parcels were first issued in favour of Plateau Wattle Company Ltd between 1958 and 1962 as leaseholds for periods ranging from 946 to 951 years. However, before the expiry of the leaseholds, Plateau Wattle Company transferred the suit parcels on March 26, 1965 to East Africa Tanning Extract Company for a consideration of Kshs 6,583,925. It is instructive to note that the East Africa Tanning Extract Company changed its name multiple times. Eventually, in 2000 it became Lonrho Agribusiness (East Africa) Limited (Lonrho Agribusiness), the 3rd appellant. On November 2, 2000, Lonrho Agribusiness surrendered the titles to the suit parcels to the government. The purpose of the surrender is a matter contested between the parties and marks the genesis of the dispute before the court. Nonetheless, upon the surrender, the suit parcels were subsequently registered under the repealed Registered Land Act (RLA) and freeholds titles issued thereto in favour of Lonrho Agribusiness. Thereafter, the suit parcels were sub-divided into various units that were eventually transferred to third parties.","F. Orders
135.
Accordingly, and for the reasons afore-stated, we make the following orders:
i.
The consolidated appeal is hereby allowed;
ii.
The judgment and orders of the trial and appellate courts are hereby set aside in their entirety.
iii.
The 1st respondent herein, to wit, Sirikwa Squatters Group, its agents, members, servants, employees and/or representatives are hereby permanently restrained from entering, taking possession of and in any other manner interfering with Fanikiwa’s (the 1st appellant) quiet possession of the suit properties described as LR No Pioneer/ngeria Block 1 (EATEC) 7070, 7068, 3395, 5903, 2454, 476, 1860, 475, 5497, 5494, 5492, 5489, 5486, 1384, 1383, 5484, 474, 472, 5485, 5487, 5490, 5488, 5491, 5493, 1861, 5496, 1862, 5491, 473, 477, 471, 1353, 1375, 1374, 1379, 1378, 1380, 1381, 1382, 1852, 1386, 1385, 85, 5495 and 5902;
iv.
We declare that the finding by the superior courts below to the effect that the retired President’s approval of allocation of the suit parcels and the subsequent surrender of the titles was for purposes of settling Sirikwa’s members, violated and arbitrarily deprived the 3rd appellant herein, Lonrho Agribusiness, of its rights over and interests in the suit parcels as guaranteed under article 40 of the Constitution.
v.
All parties shall bear their own costs
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/105/eng@2023-12-15
Petition E017 of 2023,Adam v Jiir & 3 others (Petition E017 of 2023) [2023] KESC 101 (KLR) (8 December 2023) (Reasons),Reasons,Supreme Court of Kenya ,Supreme Court,"MK Koome, PM Mwilu, N Ndungu, I Lenaola, W Ouko",8 December 2023,2023.0,Nairobi,Civil,"Hassan Mohammed Adam
Appellant
and
Ahmed Abdullahi Jiir
1st Respondent
Ahmed Muhumed Abdi
2nd Respondent
The Independent Electoral and Boundaries Commission
3rd Respondent
County Returning Officer, Wajir County Mohamed Adan Ali
4th Respondent",[2023] KESC 101 (KLR),,"A. Introduction
1.
The Constitution of Kenya, 2010, underscores the sovereignty of the people. Thus, the people may exercise their sovereign power either directly or through their democratically elected representatives. Sovereign power is exercised through elected representatives and occurs through a general election, being the second Tuesday of August every fifth year. With the promulgation of the Constitution of Kenya, 2010, Kenya held its third general election on August 9, 2022. In the said election, the appellant and the 1st respondent were among the candidates for the Gubernatorial Elections in Wajir County. The 3rd respondent, through the 4th respondent, declared the 1st and 2nd respondents as governor and deputy governor of Wajir County, respectively, having garnered 35, 533 votes. The appellant came in second with 27, 224 votes. Just like in the first and second electoral cycle, the election of the Governor for Wajir County was challenged before the courts.
2.
Taking into account the importance of expeditious settlement of electoral disputes as prescribed under article 87(1) of the Constitution, the court heard this petition of appeal and rendered an ex tempore judgment on September 8, 2023 pursuant to rule 28(2) of the Supreme Court Rules 2020 by which the petition of appeal dated July 31, 2023 was struck out with costs to the respondents and the reasons thereby reserved; now rendered in this judgment of the court.
B. Litigation Background
Proceedings in the High Court
3.
The appellant, dissatisfied with the declaration of the August 9th, 2022 general election results, lodged High Court election Petition No E008 of 2022 against the 1st to 4th respondents. He alleged that the election was tainted by numerous illegalities and irregularities that contravened the Constitution, Elections Act, Election (General) Regulations and the principles laid down therein or any law relating to the conduct of elections including decisions of superior courts, leading to skewed results in favour of the 1st and 2nd respondents.
4.
He alleged intimidation and misinformation of voters; gross discrepancies in the statutory forms; improper counting, tallying and tabulation of results; failure to deploy KIEMS Kits; and inflation of vote numbers through the use of supervisor method of voter identification. He therefore sought an order for scrutiny and recount at various polling stations; that the results declared by the returning officer be set aside and fresh elections be conducted.
5.
The 1st and 2nd respondents, in their joint response, denied all the allegations made against them. In particular, they responded to the averment relating to the postponement of elections in Eldas constituency, clan dynamics, intimidation, misinformation, undue influence of voters, voter turnout and failure to deploy KIEMS kits.
6.
Likewise, the 3rd and 4th respondents jointly denied every allegation set out in the petition. They averred that the Wajir Gubernatorial election process was backed by an elaborate electoral management system in compliance with electoral laws, which system included several layers of safeguards to ensure an open, transparent, participatory and accountable process, to guarantee free and fair elections pursuant to article 81 as read with article 86 of the Constitution.
7.
Following the conclusion of oral witness testimonies, the court allowed the appellant’s application for scrutiny in part, limiting it to twelve (12) polling stations; that it be presided over by the Deputy Registrar of that court; and the resultant reports be filed and supplied to the parties who made submissions on the same.
8.
Upon hearing the parties’ arguments, the court identified three issues for determination:
(a)Whether illegalities and irregularities were committed in the Wajir Gubernatorial elections as alleged and if yes, what the effect was; (b) Whether the Wajir Gubernatorial elections were conducted substantially in accordance with the Constitution and election laws; and (c)What orders the court should issue. The first issue was further delineated into the following sub- issues: the supervisor mode of identification; failure to deploy KIEMS Kits; alterations in Forms 37A; rejected ballots; voter intimidation and mis- information; violence in some parts of Wajir East Constituency and disproportionately high turnout in Wajir West Constituency.
9.
In a Judgment delivered on March 3, 2023, the court (Dulu, J) dismissed the petition with costs, and upheld the election of the 1st and 2nd respondents as governor and deputy governor of Wajir County respectively. In respect of the first issue, the court held that: though the 3rd respondent failed to fill in Form 32A for supervisor validated voters there was no evidence of vote inflation or padding as a result of this failure; failure to deploy KIEMS Kit was not proved; the impugned alterations on Forms 37A are excusable to human error and the mere absence of countersigning did not affect the election results; the appellant did not call any evidence to demonstrate non – declaration of rejected ballots in Form 37C, in any event, rejected ballots are void and accord no advantage to any candidate; voter intimidation, misinformation and bribery spurred by the postponement of the Eldas election and clan dynamics was not proved; the complaint of violence in some parts of Wajir East Constituency did not interfere with distribution of election materials which were airlifted; and the allegation of disproportionately high turnout in Wajir West Constituency were unsubstantiated.
10.
As to whether the Wajir Gubernatorial elections were conducted substantially in accordance with the Constitution and election laws, the court held that though there was non-compliance with the legal provisions on filling Form 32A and there were counter signing alterations made on Form 37A, there was no evidence that voters in any polling station exceeded the number of registered voters. Furthermore, neither of the two irregularities appeared to confer an advantage or disadvantage on any of the candidates. Consequently, the court found that there was no non-compliance with the Constitution.","G. Final Orders
63.
Consequently, we issue the following Orders:
i.
The notice of motion dated August 15, 2023 and filed on even date be and is hereby allowed with costs to the 1st and 2nd respondents.
ii.
The petition of appeal dated July 31, 2023 and filed on even date is struck out with costs to the respondents.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/101/eng@2023-12-08
Petition E017 of 2023,Adam v Jiir & 3 others (Petition E017 of 2023) [2023] KESC 101 (KLR) (8 December 2023) (Reasons),Reasons,Supreme Court of Kenya ,Supreme Court,"MK Koome, PM Mwilu, N Ndungu, I Lenaola, W Ouko",8 December 2023,2023.0,Nairobi,Civil,"Hassan Mohammed Adam
Appellant
and
Ahmed Abdullahi Jiir
1st Respondent
Ahmed Muhumed Abdi
2nd Respondent
The Independent Electoral and Boundaries Commission
3rd Respondent
County Returning Officer, Wajir County Mohamed Adan Ali
4th Respondent",[2023] KESC 101 (KLR),,"A. Introduction
1.
The Constitution of Kenya, 2010, underscores the sovereignty of the people. Thus, the people may exercise their sovereign power either directly or through their democratically elected representatives. Sovereign power is exercised through elected representatives and occurs through a general election, being the second Tuesday of August every fifth year. With the promulgation of the Constitution of Kenya, 2010, Kenya held its third general election on August 9, 2022. In the said election, the appellant and the 1st respondent were among the candidates for the Gubernatorial Elections in Wajir County. The 3rd respondent, through the 4th respondent, declared the 1st and 2nd respondents as governor and deputy governor of Wajir County, respectively, having garnered 35, 533 votes. The appellant came in second with 27, 224 votes. Just like in the first and second electoral cycle, the election of the Governor for Wajir County was challenged before the courts.
2.
Taking into account the importance of expeditious settlement of electoral disputes as prescribed under article 87(1) of the Constitution, the court heard this petition of appeal and rendered an ex tempore judgment on September 8, 2023 pursuant to rule 28(2) of the Supreme Court Rules 2020 by which the petition of appeal dated July 31, 2023 was struck out with costs to the respondents and the reasons thereby reserved; now rendered in this judgment of the court.
B. Litigation Background
Proceedings in the High Court
3.
The appellant, dissatisfied with the declaration of the August 9th, 2022 general election results, lodged High Court election Petition No E008 of 2022 against the 1st to 4th respondents. He alleged that the election was tainted by numerous illegalities and irregularities that contravened the Constitution, Elections Act, Election (General) Regulations and the principles laid down therein or any law relating to the conduct of elections including decisions of superior courts, leading to skewed results in favour of the 1st and 2nd respondents.
4.
He alleged intimidation and misinformation of voters; gross discrepancies in the statutory forms; improper counting, tallying and tabulation of results; failure to deploy KIEMS Kits; and inflation of vote numbers through the use of supervisor method of voter identification. He therefore sought an order for scrutiny and recount at various polling stations; that the results declared by the returning officer be set aside and fresh elections be conducted.
5.
The 1st and 2nd respondents, in their joint response, denied all the allegations made against them. In particular, they responded to the averment relating to the postponement of elections in Eldas constituency, clan dynamics, intimidation, misinformation, undue influence of voters, voter turnout and failure to deploy KIEMS kits.
6.
Likewise, the 3rd and 4th respondents jointly denied every allegation set out in the petition. They averred that the Wajir Gubernatorial election process was backed by an elaborate electoral management system in compliance with electoral laws, which system included several layers of safeguards to ensure an open, transparent, participatory and accountable process, to guarantee free and fair elections pursuant to article 81 as read with article 86 of the Constitution.
7.
Following the conclusion of oral witness testimonies, the court allowed the appellant’s application for scrutiny in part, limiting it to twelve (12) polling stations; that it be presided over by the Deputy Registrar of that court; and the resultant reports be filed and supplied to the parties who made submissions on the same.
8.
Upon hearing the parties’ arguments, the court identified three issues for determination:
(a)Whether illegalities and irregularities were committed in the Wajir Gubernatorial elections as alleged and if yes, what the effect was; (b) Whether the Wajir Gubernatorial elections were conducted substantially in accordance with the Constitution and election laws; and (c)What orders the court should issue. The first issue was further delineated into the following sub- issues: the supervisor mode of identification; failure to deploy KIEMS Kits; alterations in Forms 37A; rejected ballots; voter intimidation and mis- information; violence in some parts of Wajir East Constituency and disproportionately high turnout in Wajir West Constituency.
9.
In a Judgment delivered on March 3, 2023, the court (Dulu, J) dismissed the petition with costs, and upheld the election of the 1st and 2nd respondents as governor and deputy governor of Wajir County respectively. In respect of the first issue, the court held that: though the 3rd respondent failed to fill in Form 32A for supervisor validated voters there was no evidence of vote inflation or padding as a result of this failure; failure to deploy KIEMS Kit was not proved; the impugned alterations on Forms 37A are excusable to human error and the mere absence of countersigning did not affect the election results; the appellant did not call any evidence to demonstrate non – declaration of rejected ballots in Form 37C, in any event, rejected ballots are void and accord no advantage to any candidate; voter intimidation, misinformation and bribery spurred by the postponement of the Eldas election and clan dynamics was not proved; the complaint of violence in some parts of Wajir East Constituency did not interfere with distribution of election materials which were airlifted; and the allegation of disproportionately high turnout in Wajir West Constituency were unsubstantiated.
10.
As to whether the Wajir Gubernatorial elections were conducted substantially in accordance with the Constitution and election laws, the court held that though there was non-compliance with the legal provisions on filling Form 32A and there were counter signing alterations made on Form 37A, there was no evidence that voters in any polling station exceeded the number of registered voters. Furthermore, neither of the two irregularities appeared to confer an advantage or disadvantage on any of the candidates. Consequently, the court found that there was no non-compliance with the Constitution.","G. Final Orders
63.
Consequently, we issue the following Orders:
i.
The notice of motion dated August 15, 2023 and filed on even date be and is hereby allowed with costs to the 1st and 2nd respondents.
ii.
The petition of appeal dated July 31, 2023 and filed on even date is struck out with costs to the respondents.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/101/eng@2023-12-08
Petition (Application) E011 of 2023,"Kenya Airports Authority v Otieno, Ragot & Company Advocates (Petition (Application) E011 of 2023) [2023] KESC 104 (KLR) (8 December 2023) (Ruling)",Ruling,Supreme Court of Kenya ,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu",8 December 2023,2023.0,Nairobi,Civil,"Kenya Airports Authority v Otieno, Ragot & Company Advocates",[2023] KESC 104 (KLR),,"Mandatory requirement of leave of the Supreme Court to file pleadings out of time
The Supreme Court disallowed an application to strike out submissions out of time on grounds that at the hearing, the applicant could well argue their appeal orally. The respondent could always be granted leave to file supplementary submissions in reply to the submissions by the appellant which were filed out of time all in the interest of justice and to an expeditious disposal of this litigation. The Supreme Court however underscored the importance of complying with court orders and seeking leave before filing pleadings out of time.
Reported by John Ribia
Civil Practice and Procedure – pleadings – submissions – timelines – submissions filed out of time without leave of the Supreme Court - whether the Supreme Court had the discretion to allow for late filing of submissions - whether the Supreme Court could grant an applicant the discretion to file pleadings out of time having not sought leave of the court to file the pleadings out of time and having not complied with the orders of the Registrar of the Court - Constitution of Kenya articles 50(1), 159, and 163(5); Supreme Court Act (cap 9B) section 3; 21; 21(2); Supreme Court Rules, 2020 (cap 9B Sub leg) rules 12(1), 31(6), and 65.
Brief facts
The respondent sought to strike out and expunge from the record the submissions, list and digest of authorities all dated and filed by the appellant on grounds that the documents were filed out of time, without leave of the Supreme Court, and in violation of the timelines issued by of the Deputy Registrar of the Supreme Court in the matter. 
Issues
Whether the Supreme Court had the discretion to allow for late filing of submissions.
Whether the Supreme Court could grant an applicant the discretion to file pleadings out of time having not sought leave of the court to file the pleadings out of time and having not complied with the orders of the Registrar of the Court. 
Held
Section 21 of the Supreme Court Act (the Act) granted the Supreme Court general powers to make any ancillary or interlocutory orders. Rule 65 of the Supreme Court Rules empowered the Supreme Court to issue such directions as could be appropriate where a provision of the Rules or Practice Directions was not complied with, having regard to the gravity of the non-compliance and the general circumstances of the case.
Article 159 of the Constitution set out the guiding principles of the exercise of judicial authority which included that justice shall not be delayed and shall be administered without undue regard to procedural technicalities.
Compliance with the Supreme Court’s orders and directions on filing and service of documents was imperative. Compliance went to the root of the rule of law as well as the dignity of the Supreme Court.
From the directions issued by the Hon. Deputy Registrar on August 7, 2023, the appellant ought to have filed and served its submissions on or before August 28, 2023. It was not until September 22, 2023, that the appellant filed its submissions online, and filed its hardcopies on September 25, 2023, thus delaying compliance with the court’s directions by over 25 days. As noted in rule 12(1) of the Supreme Court Rules, filing was deemed complete when the document was submitted both electronically and physically. The delay in compliance by the appellant was therefore prejudicial to the respondent who was deprived the opportunity to respond to the appellant’s submissions.
Whereas late filing of submissions was not incurable, and the Supreme Court had discretion to allow such late filing. The appellant had not moved the Supreme Court appropriately by way of an application for extension of time to file the said documents.
Section 21 of the Act and rule 65 of the Supreme Court’s Rules granted the Supreme Court general powers to make any ancillary or interlocutory orders and any such directions as may be appropriate. The bottom line in all cases was for parties to litigation to reasonably access justice.
Prejudice had been suffered by the respondent due to the applicant’s failure to timeously file its submissions. The respondent could be facilitated to mitigate such prejudice as may have been suffered.
At the hearing, the applicant could well argue their appeal orally. The respondent could always be granted leave to file supplementary submissions in reply to the submissions by the appellant which were filed out of time all in the interest of justice and to an expeditious disposal of this litigation.
Application disallowed.","We have considered the application, responses and submissions filed by the parties and now opine as follows:
i.
This court has in several of its decisions reiterated that compliance with its orders and directions on filing and service of documents is imperative. As we stated in the Okiya Omtatah case (supra) compliance with court orders goes to the root of the rule of law as well as the dignity of the court.
ii.
We note that from the directions issued by the Hon. Deputy Registrar on August 7, 2023 the appellant ought to have filed and served its submissions on or before August 28, 2023. It was not until September 22, 2023 that the appellant filed its submissions online, and filed its hardcopies on September 25, 2023 thus delaying to comply with the court’s directions by over 25 days. As noted in rule 12(1) of the Court’s Rules, filing is deemed complete when the document is submitted both electronically and physically.
iii.
The appellant having failed to comply with the court’s direction, the respondent proceeded to file its submissions online on September 22, 2023 aware of the impending mention to confirm compliance on September 25, 2023. The delay in compliance by the appellant was therefore prejudicial to the respondent who was deprived the opportunity to respond to the appellant’s submissions. Upon exhaustion of the timelines, the Hon. Deputy Registrar proceeded to certify the matter as ready for hearing.
iv.
Guided by this court’s decision in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others SC Petition No.5 of 2016 [2018] eKLR where we underscored the importance of complying with court orders and given directions, every party has an obligation to honour the court’s directions. Whereas late filing of submissions is not incurable, and this court has discretion to allow such late filing, the appellant has not moved the court appropriately by way of an application for extension of time to file the said documents, however, is that fatal?
v.
This court is granted general powers to make any ancillary or interlocutory orders by the provisions of section 21 of its Act. Similarly rule 65 of the Court’s Rules empowers the court to issue such directions as may be appropriate. The bottom line in all cases is for parties to litigation to reasonably access justice.
vi.
The consideration to bear in mind here is what prejudice has been suffered by the respondent due to the applicant’s failure to timeously file its submissions and whether the respondent can be facilitated to mitigate such prejudice as may have been suffered. Conversely, would the applicant be able to still argue their appeal without the submissions? The answer to both enquiries, we find, are in the affirmative. At the hearing, the applicant can well argue their appeal orally. The respondent can always be granted leave to file supplementary submissions in reply to the submissions by the appellant which were filed out of time all in the interest of justice and to an expeditious disposal of this litigation.
vii.
Consequently, and under powers granted by section 21 of the Supreme Court Act and rule 65 of the Court’s Rules, we order that the late filed submissions be admitted and deemed to have been filed within time. The respondent is hereby granted 14 days therefrom to draw, file and serve supplementary submissions.
viii.
On the issue of costs, this court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012 [2014] eKLR held that costs follow the event. On this account and in the circumstances, the appellant shall bear the costs of the respondents.
Orders
11.
Consequently, we make the following orders:
i.
The respondent’s notice of motion dated September 29, 2023 be and is hereby disallowed;
ii.
The appellant’s submissions, list and digest of authorities all dated September 22, 2023 and filed on September 25, 2023 be and are hereby admitted as part of the record;
iii.
The respondent be and is hereby granted fourteen (14) days from the date of this ruling to draw, file and serve supplementary submissions;
iv.
The appellant shall bear the costs of the application.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/104/eng@2023-12-08
Petition (Application) 16 of 2019,Non- Governmental Organizations Coordination Board v EG & 5 others (Petition (Application) 16 of 2019) [2023] KESC 102 (KLR) (Civ) (8 December 2023) (Ruling),Ruling,Supreme Court of Kenya ,Supreme Court,W Ouko,8 December 2023,2023.0,Nairobi,Civil,"Non- Governmental Organizations Coordination Board
Applicant
and
EG
1st Respondent
Attorney General
2nd Respondent
DK
3rd Respondent
AMI
4th Respondent
Kenya Christian Professionals Forum
5th Respondent
Katiba Institute
6th Respondent",[2023] KESC 102 (KLR),,"The application sought for among other orders; that the court set aside and/or review downwards the decision made by the Registrar of the court as related to item 1 on instructions taxed at Kshs 5,000,000. The applicant contended that; the Deputy Registrar delivered a decision taxing the 1st respondent’s bill of costs at Kshs 5,018,104 of which, Kshs 5,000,000 was awarded as instruction fees; and that by doing so, the Deputy Registrar erred in failing to give consideration to the fact that the bill of costs and decree were lodged and drawn contrary to rule 29 as well as paragraph 2(2) of the Third Schedule to the Supreme Court Rules, 2020 because the decree was neither drawn and certified following the applicable procedure nor was it lodged after making the order for costs. The applicant further submitted that it had never received any draft decree for approval or rejection from the 1st respondent.","Before considering the merits of the reference, there are two preliminary issues to be disposed of. The first one is whether the 1st respondent’s replying affidavit is competent. According to the applicant, the replying affidavit is fatally defective for the reason that it lacks in the jurat or attestation part, the place where the oath or affidavit was made or taken contrary to section 5 of the Oaths and Statutory Declarations Act.
9.
Alive to the fact that the power to strike out pleadings is a draconian measure that ought to be employed sparingly and only as a last resort and even then, only in the clearest of cases, as has been explained in a long line of previous decisions, including Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others, Civil Appeal (Application) No 228 of 2013; [2013] eKLR.
10.
It is noted that this objection has been raised by the applicant in its further affidavit and supplementary Submissions, without an opportunity to the 1st respondent to reply, and considering that under part v of the Supreme Court Rules, the court can only issue an order upon being appropriately moved, the applicant ought to have filed a formal application to strike out these pleadings as opposed to seeking to do so through submissions. For this reason, I decline to venture into the merit of whether the 1st respondent’s Replying Affidavit is properly on record.
11.
Secondly, there have been arguments by both parties as to the effect of a consent dated June 29, 2023. In that consent, it is purported that the applicant acknowledged its indebtedness to the 1st respondent and undertook to settle the taxed bill of costs together with the auctioneer’s charges. This court, in Geoffrey M Asanyo & 3 others v Attorney-General, SC Petition No 7 of 2019; [2020] eKLR held as follows regarding a consent:
“[40] Adoption of a consent by a court is a process, in the course of which a court discharges the duty of evaluating the clarity of the consent placed before it by parties and giving directions on the manner of adoption. This circumvents the risk of an unlawful order and validates the mode of adoption and compliance. Thus, a consent by parties becomes an order of the court only once it has been formally adopted by the court…”
12.
Noting that both the Executive Director of the applicant and counsel for the 1st respondent executed the consent dated June 29, 2023; that subsequently, the applicant’s counsel contested the manner in which it was entered insisting that the applicant’s Executive Director was coerced into signing it and that the applicant’s board did not sanction it. But of significance is the fact that the consent has not been formally adopted by the court as an order and therefore serves no useful purpose in these proceedings. It could not per se have settled the issue of costs between the parties.
13.
Evaluating the arguments in this reference, the first matter to consider is whether the bill of costs and decree were lodged and drawn contrary to rule 29 and paragraph 2(2) of the third schedule to the Supreme Court Rules 2020. The argument is that the 1st respondent failed to submit the decree to the applicant for approval or rejection as required by rule 29.
14.
Rule 29(4) provides as follows:
“
(4)
Any party may, within fourteen days from the date of judgment or ruling, prepare a draft order and submit for the approval of the other party who shall, within seven days of receiving the draft order-
a.
approve it, with or without any changes; or
b.
reject it.
5.
Where the parties approve the draft, it shall be submitted to the Registrar who shall if satisfied that it is properly drawn, certify the order accordingly.
6.
Where parties do not agree on the content of the order, any judge who sat at the hearing shall settle the terms of the order.” [my emphasis].
15.
Accordingly, the taxing officer in determining this question stated the following:
“
(7)
…… but having read rule 29(4), it is my view that the same is optional so that it will be erroneous to hold that the filing of a party and party bill of costs must be preceded by an approved decree or order. It is equally clear from the framing of rules 59, 60 and the third schedule to the Supreme Court Rules, 2020 that in the exercise of his/her discretion in assessment of costs, the Registrar is not required to first ensure compliance with rule 29 of the Supreme Court Rules 2020.
(8)
Lastly, I have read the submissions by the appellant on this aspect of the case and noted that it does not challenge the order for costs as contained in the Judgment of February 24, 2023.
The appellant’s contention on this issue falls on the wayside.”
16.
It is common factor that a draft decree was not submitted to the applicant for approval or rejection in terms of rule 29 aforesaid. What then is the effect of that failure? The applicant has prayed that for this omission, the court be pleased “to set aside and/or review downwards” the impugned decision as it relates to item 1 on instructions taxed at Kshs 5,000,000.
17.
It must be stressed that is not for nothing that rule 29(4) of the Supreme Court Rules, reproduced above, sets out in some detail the steps to be followed when a decree has been drawn: that the parties must themselves, first be satisfied that the decree reflects the decision; that the process of exchanging a draft decree may be initiated by either party; and that it is only when the parties fail to agree that the court steps in to settle the terms of a decree.
18.
But strictly speaking, a decree, being a formal expression of a court’s conclusive determination of the rights of the parties in a suit, is a product of a judgment and therefore belongs to the court. That is why it is of no consequence until it is duly sealed by the registrar, who, under section 10 of the Supreme Court Act is responsible for—
“
10(1) (d)…certifying that any order, direction or decision is an order, direction or decision of the court, or of the chief justice or other judge, as the case may be.”
19.
The main consideration in approving or rejecting a decree is that a decree must always mirror the judgment. In the instant case, the applicant does not claim that the decree is at variance with the judgment of the court, which in so far as costs are concerned merely stated that: “the 1st respondent shall have the costs”.
20.
While it must be emphasized that parties must strictly follow the steps enumerated in rule 29, in the circumstances of this case, it is my considered view that the setting aside of the execution process, as sought here is not the answer and will serve no purpose. The relief of setting “aside and/or review downwards” would have been efficacious only if it was demonstrated that the decree was at variance with the judgment.
21.
In the end, on this question, I come to the conclusion that, although the 1st respondent offended rule 29 of the Supreme Court Rules, that offence cannot attract the kind of sanction sought in this prayer.
22.
The gravamen of the applicant’s reference is the taxed award of Kshs 5,000,000 for instruction fees. This court recently in Outa v Odoyo & 3 others, SC Petition No 6 of 2014; [2023] KESC 75 (KLR) highlighted the following principles to be considered in an application for setting aside a certificate of taxation:
“
(11)
A certificate of taxation will be set aside, and a single Judge can only interfere with the taxing officer’s decision on taxation if;
a.
there is an error of principle committed by the taxing officer;
b.
the fee awarded is shown to be manifestly excessive or is so high as to confine access to the court to the wealthy;(and I may add, conversely, if the award is so manifestly deficient as to amount to an injustice to one party).
c.
the court is satisfied that the successful litigant is entitled to fair reimbursement for the costs he has incurred, (and I may add, the award must not be regarded as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected by the other party); and
d.
the award proposed is so far as practicable, consistent with previous awards in similar cases.
To these general principles, I may add that;
i.
There is no mathematical formula to be used by the taxing officer to arrive at a precise figure because each case must be considered and decided on its own peculiar circumstances,
ii.
Although the taxing officer exercises unfettered judicial discretion in matters of taxation that discretion must be exercised judicially, not whimsically,
iii.
The single Judge will normally not interfere with the decision of the taxing officer merely because the Judge believes he would have awarded a different figure had he been in the taxing officer’s shoes.”
23.
Bearing these principles in mind, I reiterate that the only point of contention is item No 1 which was on instruction fees. The 1st respondent had sought the item be taxed at kshs 20,000,000 while the applicant insisted that Kshs 1,500 was reasonable. Resolving this question, the taxing officer expressed himself as follows:
“
(16)
… I hold and find that this was an exceptional case where novel constitutional issues were raised. I am mindful in this case, counsel’s industry in the success of the case must be compensated reasonably. There is indeed evidence of extensive research as submitted by counsel for the 1st respondent. The nature of the case and its importance in the field of enforcement of human rights for the minority cannot be underestimated. The Kshs 1,500/= proposed by the appellant is so little that it cannot attract young lawyers to the legal profession.
(17)
I am now satisfied that after a consideration of the factors a taxing officer ought to bear in mind in awarding instruction fees, I hereby in the exercise of my discretion award Kshs 5,000,000 as instruction fees.”
24.
In arriving at the award, the taxing officer took into consideration, the novelty of the matter and its contribution to the growth of jurisprudence; the nature of the case and its importance in the field of enforcement of human rights for the minority involving the LGBTIQ community; and the industry of counsel through extensive research conducted while being cautious not to enrich the victor unjustly. He therefore found the amount of Kshs 20,000,000 proposed by the 1st respondent to be excessive and 1,500 grossly and manifestly deficient.
25.
In this court costs payable by a party can be awarded at three levels: assessed by the court itself when making its decision; or taxed by the registrar; or reached by consent of the parties. See rule 59 of the Supreme Court Rules, 2020. Where the registrar is called upon to tax a bill of costs rule 60 directs that such costs shall be taxed in line with the scale outlined in the third schedule to the Supreme Court Rules 2020.
26.
Specific to instructions, paragraph 9 of the third schedule makes 3 important provisions, that:
i.
Instruction fees “shall be such sum as the taxing officer shall consider reasonable but shall not be less than one thousand shillings”.
ii.
Secondly, the fees for instructions “shall be such sum as the taxing officer shall consider reasonable, having regard to the amount involved in the appeal, its nature, importance and difficulty, the interest of the parties”.
iii.
Finally, that sum allowed under the second consideration “shall include all works necessary and properly done in connection with the appeal and not otherwise chargeable, including attendances, correspondence, perusals, and consulting authorities”.
27.
Balancing all these factors the taxing officer proceeded, in exercise of his discretion, to reduce the 1st respondent’s proposed award of Kshs 20,000,000 to Kshs 5,000,000. I do not think the taxing officer can be said to have committed an error of principle or can it be said that the fee awarded is manifestly excessive as to warrant my interference? The function of a single judge seized of a reference is to review the taxing officer’s certificate of taxation to ascertain whether the taxing officer has, among other things, erred in principle. It is and cannot be in the nature of a new hearing.
28.
Unless the taxing officer improperly exercises his discretion or applies the wrong principles or the quantum awarded is obviously wrong, the single Judge ought not to interfere with the decision of the taxing officer on the mere question of quantum, or merely because the single judge would have awarded a different figure had he been the taxing officer.
29.
Rule 6 (2) of the rules of the court only permits any party aggrieved by a decision of the registrar to apply for a review to a single judge, whose decision is final. Because taxation is not a mathematical exercise but rather a discretionary process, the single Judge cannot purport to engage in such an exercise, which involves perusing the record in order to ascertain all work necessary and properly done in connection with the appeal, including attendances, correspondence, perusals, and consulting authorities.
30.
In the circumstances, I find that no material has been placed before me to interfere with the taxing officer’s discretion. The authorities cited by the applicant to persuade me that the award was excessive relate to election petitions whose timeline are only six months in the courts below, while parties and counsel in thisappeal have been in court for over ten years, traversing the entire superior courts. Perhaps it is this single factor that informed the court’s decision to award costs to the 1st respondent even when the two superior courts below did not make any orders as to costs. No doubt, the complexity and novelty of the case similarly informed the decision to constitute larger benches in the courts below (High Court, three judges and five in the Court of Appeal), while in this court there was a split decision, 3:2.
31.
Consequently, and for all the reasons explained, this reference fails and is dismissed with an order that each party shall bear their own costs.
32.
Accordingly, I order that:
i.
The reference dated September 28, 2023 be and is hereby dismissed; and
ii.
Parties shall bear their own costs as costs are awarded at the discretion of the court.
It is so ordered.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/102/eng@2023-12-08
Civil Application E032 of 2023,Oyatsi v Nzoia Sugar Company Limited (Civil Application E032 of 2023) [2023] KESC 103 (KLR) (8 December 2023) (Ruling),Ruling,Supreme Court of Kenya ,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",8 December 2023,2023.0,Nairobi,Civil,"Francis Oyatsi
Applicant
and
Nzoia Sugar Company Limited
Respondent",[2023] KESC 103 (KLR),,"Brief facts
The applicant filed two applications; the first one sought enlargement of time to file an appeal and stay of execution of the Court of Appeal judgment dated April 22, 2021while the second one sought leave of the court to amend the notice of motion dated August 29, 2023. The respondent had appealed against the decision of the trial court at the Court of Appeal which reversed the trial court’s judgment vide its judgment dated March 8, 2019 (the date and mode of delivery of the Court of Appeal judgment was the main contention in both applications). The respondent thereafter made an application for settling terms of the decree. The same was determined by a one-judge bench of the Court of Appeal on April 22, 2021.
The applicant sought leave to amend the notice of motion on the grounds that the amendment sought to add the final decision of the Court of Appeal dated March 8, 2019 as part of the prayer seeking enlargement of time to file an appeal. Initially, the applicant had sought enlargement of time to appeal against the consequential orders of April 22, 2021 only. The applicant contended that there was discovery of new and important facts disclosed by the respondent’s replying affidavit served upon him on September 25, 2023 and that he had realized, for the first time, that the Court of Appeal’s judgement was delivered on March 8, 2019, without prior notice to him, reasons which were entirely different from the reasons preferred in his application dated August 29, 2023.
The applicant sought to be granted extension or enlargement of time to file and serve notice of appeal and or appeal against the order of the Court of Appeal dated the April 22, 2021and that if leave was granted the court grants a stay of execution of the order pending hearing and determination of the intended appeal. The applicant urged that he did not agree with the validity of the judgment and he filed an application seeking orders that the Court of Appeal recalls, cancels the judgment and hear the appeal afresh. The applicant claimed that the Court of Appeal had not given directions as to the hearing of that application and he therefore he filed the instant application.","Consequently, we make the following orders:
a.
The notice of motion dated August 29, 2023 and filed on September 1, 2023 is hereby dismissed.
b.
The notice of motion dated October 2, 2023 and filed on October 5, 2023 is hereby dismissed.
c.
Costs of the both applications are awarded to the respondent.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/103/eng@2023-12-08
Application E039 of 2023,Sundowner Lodge Limited v Kenya Tourist Development Corporation (Application E039 of 2023) [2023] KESC 100 (KLR) (8 December 2023) (Ruling),Ruling,Supreme Court of Kenya ,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",8 December 2023,2023.0,Nairobi,Civil,"Sundowner Lodge Limited
Applicant
and
Kenya Tourist Development Corporation
Respondent",[2023] KESC 100 (KLR),,"""Brief facts
The applicant filed the instant application seeking review of the Court of Appeal decision declining to certify the intended appeal as being one involving matters of general public importance. The applicant’s claim at the trial court was premised on breach of the lending contract to which the applicant filed a suit and sought general and special damages, interests and costs. The trial court awarded the applicant Kshs 153,000 as special damages and Kshs 30,000,000 as general damages. On appeal, the Court of Appeal set aside the award of Kshs 30,000,000 as general damages. 
The applicant contended that a review of the Court of Appeal’s decision was merited as the intended appeal to the Supreme Court raised questions of general public importance that transcended beyond the parties; as a result of the Court of Appeal’s misinterpretation of its prior decisions, its decision in the matter had a likelihood of causing confusion in the legal practice and among the lower courts regarding the recoverability of general damages for breach of contract.""","Having therefore considered the application, response, submissions and issues proposed to be certified as involving general public importance, we now opine as follows:
(i)
The issues proposed to be certified as involving general public importance revolve primarily around the availability of general damages as a remedy for breach of contract in Kenya and the extent of such remedy, if at all. Specifically, the applicant seeks a final pronouncement from this court on this issue on account of conflicting decisions by the Court of Appeal on that subject.
(ii)
Examining the judgments of the superior courts submitted by the applicant, it is manifest that the High Court appreciated the general rule that general damages are not normally awarded in breach of contract cases save for exceptional circumstances upon which it proceeded to award general damages to the respondent. Likewise, on appeal, the Court of Appeal acknowledged the general rule and was not persuaded that the authorities cited by the trial court supported the proposition that in cases of breach of contract there exists a large and wide – open discretion to a court to award any amount of damages, in addition to the quantified damages. In the premise, the Court of Appeal, in differing with the basis upon which the High Court had awarded general damages did not negate but rather affirmed the general rule.
(iii)
Further, vide the ruling dated September 22, 2023 in Civil Application No Sup 19 of 2018, the Court of Appeal, affirmed that there is no ambiguity in the legal practice since the appellate court did not misinterpret its previous decisions that general damages are not awardable for breach of contract except in exceptional circumstances, which have to be justified. It therefore follows that this issue is well settled and the issue of contradictory previous decisions does not arise.
(iv)
To our minds the applicant seeks another opportunity to have a third bite at the cherry by seeking to revisit factual findings and conclusions already resolved by the superior courts below. Determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal to the Supreme Court.
(v)
In the end, we have no difficulty in recognising that the Court of Appeal correctly interrogated the proposed issues as against the threshold set out in Hermanus Phillipus Steyn case in arriving at its decision that they did not warrant a certification as involving general public importance. We therefore, decline to vacate its finding.
(vi)
As for costs, it is only prudent that costs follow the event.
10.
Consequently, for the reasons aforesaid, we make the following orders:
(i)
The originating motion dated and filed on October 4, 2023 be and is hereby dismissed; and
(ii)
The costs of this application be borne by the applicant.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/100/eng@2023-12-08
Application E026 of 2023,Everton Coal Enterprises Limited v Karanja & 5 others (Application E026 of 2023) [2023] KESC 98 (KLR) (10 November 2023) (Ruling),Ruling,Supreme Court of Kenya ,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",10 November 2023,2023.0,Nairobi,Civil,"Everton Coal Enterprises Limited
Applicant
and
Rose Wakanyi Karanja
1st Respondent
Grace Wangari Karanja
2nd Respondent
Kenneth Ndichu Karanja
3rd Respondent
William Muigai Karanja
4th Respondent
Geoffrey Chege Kirundi
5th Respondent
Lucy Wamaitha Chege
6th Respondent",[2023] KESC 98 (KLR),,"Brief facts
The applicant sought for several orders from the Supreme Court relating to a judgment by the Court of Appeal at Nairobi in Civil Appeal No 172 of 2010. The applicant requested the Supreme Court to extend time and grant leave to file a Notice of Appeal against the Court of Appeal's 2016 judgment; to review the Court of Appeal's refusal to grant certification in 2023, certify the intended appeal as a matter of general public importance, grant leave to appeal against the 2016 Court of Appeal judgment, and determine the costs of the application in the intended appeal.
The initial dispute involved a property transaction and breach of sale agreement concerning LR No 10090/23. The parties involved were the 1st to 4th respondents and the 5th and 6th respondents (an advocate and his wife). The advocate, representing a vendor in a prior legal case, was alleged to have entered into a sale agreement for the same property. A sale agreement was made between the deceased vendor (represented posthumously by the 1st to 4th respondents) and the 5th and 6th respondents. Legal disputes followed, leading to various court cases and appeals.
The Court of Appeal revoked the transfer of the property to the 5th and 6th respondents, citing legal irregularities including conflict with the Advocates Act and issues surrounding the Land Control Board consent. The applicant was not initially a party to the proceedings but was joined as an interested party after the Court of Appeal judgment, seeking to challenge the adverse order affecting its title to the property.","Having considered the application, affidavits, and rival arguments by both parties, we now opine as follows:
21.
Cognizant of the fact that, although the applicant was not a party to the suit before both the High Court and the appeal in the Court of Appeal, it was joined as an interested party post-judgment stage. The main question that follows is whether the applicant is competent to approach this court in the manner that it has done. Or framed differently, whether the court has jurisdiction to entertain an application for review brought by a party who did not participate in the proceedings that culminated in the impugned judgment of the Court of Appeal.
22.
Acknowledging that jurisdiction is everything and that without it, a court has no power to take one more step; and that a court’s jurisdiction flows from either the Constitution or legislation or both. See Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others, SC Application No 2 of 2011: [2012] eKLR. It follows that we must, in limine, be satisfied that the applicant has properly invoked the jurisdiction of this court. In respect of this application, the court is guided by article 163(5) of the Constitution, section 15B of the Supreme Court Act, rule 33 of the Supreme Court Rules, 2020 and past decisions of the court on the subject. Specifically, where the Court of Appeal certifies or declines to certify a matter as one of general public importance, rule 33 aforesaid grants an aggrieved party the right to apply to this court for review. Such application must be made within fourteen days.
23.
Further, by rule 33(5) an “application for certification shall only be limited to the parties in the original cause”, which this court in Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR, interpreted to mean that;
“…any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties before the court.…Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the court will always remain the issues as presented by the principal parties, or as framed by the court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues or introduce new issues for determination by the court”.
24.
Guided by the following passage in our decision in Law Society of Kenya v Communications Authority of Kenya, SC Petition No 8 of 2020; [2023] eKLR, where we underscored the significance of a party having locus standi in a matter:
“
Therefore, flowing from the constitutional provisions on the jurisdiction of this court, the definition of ‘a person’ seeking to file an appeal only extends to a party who is aggrieved by a decision issued against him by the Court of Appeal and wishes to prefer an appeal to the Supreme Court.
The definition does not open the door for any passer-by who is disgruntled with a decision delivered by the appellate court to approach this court. This also extends to matters relating to public interest. Furthermore, there is difficulty in granting relief at the appellate stage to a party who did not litigate those issues before the superior courts. A person in this context should therefore be a party with locus standi in the matter.” [our emphasis].
25.
Strictly speaking, though joined, the applicant was not a party to “the proceedings” in the Court of Appeal having been joined post-judgment, yet a joinder contemplates a situation where proceedings are still pending before the court and in terms of rule 5(d)(ii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) which is in pari materia with order 1 rule 10(2) of the Civil Procedure Rules, a party will only be added to on-going proceedings in order to enable the court adjudicate fully upon and settle all the questions involved in the particular proceedings before it.
26.
Noting that the original dispute between the 1st to 4th respondents and the 5th and 6th respondents having been settled in a judgment rendered on July 29, 2016, there were no proceedings to which the applicant could properly join four years later on June 5, 2020, when the ruling by the first bench of the Court of Appeal was rendered. This question has been settled in a long thread of past decisions. For example, in JMK v MWM & another [2015] eKLR, the court stressed that;
“
…an application for joinder of parties can be filed only in pending proceedings; that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings, either before, or during the trial; and that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable”.
See also the Court of Appeal judgment in Kenya Airport Authority v Mitu- Bell Welfare Society & 2 others [2016] eKLR on the finality of a judgment as a decision of a court resolving all the contested issues and settling the rights and liabilities of the parties before it and our decision in University of Eldoret & another v Hosea Sitienei & 3 others, SC Application No 8 of 2020; [2020] eKLR emphasizing the finality of the litigation process. Similarly, this Court haspronounced itself in the case of Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others, [2014] eKLR, relying on Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR on the place of an interested party in any proceedings.
27.
Convinced that the issues the applicant wishes to raise before the Supreme Court were not those determined by the courts below, where the sole issue was always whether the 5th and 6th respondents legally acquired title to the suit property. Whether or not the applicant was an innocent purchaser for value, was never pleaded, canvassed or determined. Indeed, from the record, the issue was raised, according to the Court of Appeal, from the bar, without any evidence in support. At that point, the court had no opportunity or material from which to determine the question. Issues like the proprietary rights of women were never the subject of determination before both superior courts below.
28.
We restate, on the authority of Hermanus Phillips Steyn v Giovanni Gnecchi-Ruscone (supra) that the applicant has not satisfied the court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case and has a significant bearing on the public interest. All we see, like the appellate court did see, is a spirited attempt by the 5th and 6th respondents through the applicant to have a second bite at the cherry. The grounds listed for consideration in the intended appeal, are those that would have only aggrieved the parties before the Court of Appeal. We also reiterate as we did in University of Eldoret & another v Hosea Sitienei & 3 others (supra) that a party must only elect one avenue; either to seek a review or lodge an appeal, they cannot seek both as this defeats the essence of the finality of litigation.
29.
Consequently, and for the reasons given, we find that the applicant lacks the locus standi and is not competent to seek certification before this court. As a corollary, this court lacks the jurisdiction to determine this application for certification.
30.
Accordingly, we make the following orders:
i.
The originating motion dated July 21, 2023 and filed on August 4, 2023 is hereby dismissed.
ii.
The decision of the Court of Appeal delivered on July 7, 2023 denying leave to appeal to this court is hereby affirmed.
iii.
The costs of this application shall be borne by the applicant.
It is so ordered.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/98/eng@2023-11-10
Application E035 of 2023,Maina v Macharia & 5 others (Application E035 of 2023) [2023] KESC 97 (KLR) (10 November 2023) (Ruling),Ruling,Supreme Court of Kenya ,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, I Lenaola, W Ouko",10 November 2023,2023.0,Nairobi,Civil,"Amos Mwago Maina
Applicant
and
Peter Waihenya Macharia
1st Respondent
Stanley Kyalo Muli
2nd Respondent
Samuel Nduhiu Macharia
3rd Respondent
Independent Electoral And Boundaries Commission
4th Respondent
Milliam W Gachihi, the Constituency Returning Officer, Starehe
5th Respondent
Albert Gogo, the County Returning Officer, Nairobi City
6th Respondent",[2023] KESC 97 (KLR),,"Brief facts
The application sought for orders that the notice of appeal lodged by the 1st, 2nd and 3rd respondents at the Court of Appeal regarding Court of Appeal at Nairobi Election Petition Appeals Nos E006, E005 and E009 of 2023 be deemed to have been withdrawn and that the 1st, 2nd and 3rd respondents be ordered to pay the costs relating to the notice of appeal and the costs of the application. The applicant contended that; his election as the Member of the National Assembly Starehe Constituency was challenged by the 1st, 2nd and 3rd respondents in the High Court and was dismissed thus leading to the 1st, 2nd and 3rd respondents filing election petition appeals at the Court of Appeal. The Court of Appeal dismissed the appeal following which the 1st, 2nd and 3rd respondents lodged a notice of appeal on August 8, 2023 but had not yet filed their petition and record of appeal before the instant court. 
The applicant submitted that the 1st, 2nd and 3rd respondents had failed to comply with rule 38 of the Supreme Court Rules, 2020 by not instituting their appeal within 30 days of the date of filing the notice of appeal where the appeal was as of right, which lapsed on September 7, 2023. The applicant further submitted that he was unaware of any application filed by the 1st, 2nd and 3rd respondents for certification of the intended appeal as a matter of general public importance and thus prayed that it would be in the interest of justice that the notice of appeal be formally deemed as withdrawn and he be awarded costs. ","Having therefore considered the application, responses thereto and submissions before us, We now opine as follows:
i.
Rule 38 of the Supreme Court Rules 2020 stipulates that an appeal to this court shall be filed within 30 days of the date of filing the notice of appeal, where the appeal is as of right; or 30 days after the grant of certification, where such certification is required. As we enunciated in Arvind Shah & 7 others vs Mombasa Bricks & Tiles Ltd & 5 others; SC Application No.3 (E008) of 2022, rule 36(4) makes it optional to file a notice of appeal either before or after certification in a matter of general public importance.
ii.
In the application before us, the 1st, 2nd and 3rd respondents indicate their intention to invoke this court’s jurisdiction under article 163 (4) (b) of the Constitution. This involves certifying their intended appeal as a matter of general public importance. Though they submit that they filed their notice of appeal before obtaining certification rendering the application premature, the 1st, 2nd and 3rd respondents have not provided any evidence to support their assertion considering that the said assertion is vehemently opposed on grounds that the application for certification is non-existent.
iii.
Rule 46 of the Supreme Court Rules provides:
“
(1)
Where a party has lodged a notice of appeal, but fails to institute the appeal within the prescribed time, the notice of Appeal shall be deemed to have been withdrawn, and the court may on its own motion, or on application by any party, make such orders as may be necessary.
(2)
The party in default shall be liable to pay the costs arising, to any person upon whom the notice of appeal was served.”
We are satisfied that the 1st, 2nd and 3rd respondents have defaulted in filing their appeal within the prescribed timeline after filing their notice of appeal. The 1st, 2nd, and 3rd respondents have also not provided any justification for the continued existence of the notice of appeal on this court’s record beyond the period permitted by rules 36 and 38 of the Supreme Court Rules.
iv.
At any rate, as we enunciated in Kabuito Contractors Ltd v the Attorney General; SC Civil Application No E025 of 2023, if the 1st, 2nd and 3rd respondents pursue their application for certification before the Court of Appeal and succeed, they have sufficient time to move this court under the relevant rule.
v.
On the issue of costs, bearing in mind that costs follow the event as enunciated in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR and rule 46 (2) that the party in default in instituting the appeal shall be liable to pay the costs arising; we see no reason to deny the respondents costs as prayed.
8.
Consequently, and for the reasons aforesaid, we make the following orders:
i.
The notice of motion dated September 19, 2023 and filed on 21st September, 2023 be and is hereby allowed.
ii.
The notice of appeal dated August 8, 2023 lodged by the 1st, 2nd and 3rd respondents in the first instance at the Court of Appeal even date regarding Court of Appeal at Nairobi Election Petition Appeals Nos E006, E005 and E009 of 2023 be and is hereby deemed to have been withdrawn.
iii.
The 1st, 2nd and 3rd respondents shall bear the costs hereof.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/97/eng@2023-11-10
Application E030 of 2023,"Nairobi Bottlers Limited v Ndung’u & another (Application E030, E034 & E038 of 2023 (Consolidated)) [2023] KESC 96 (KLR) (10 November 2023) (Ruling)",Ruling,Supreme Court of Kenya ,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola",10 November 2023,2023.0,Nairobi,Civil,"Nairobi Bottlers Limited
Applicant
and
Mark Ndumia Ndung’u
1st Respondent
Coca Cola Central, East & West Africa Ltd
2nd Respondent",[2023] KESC 96 (KLR),,"Brief facts
The appeal was filed out of time on grounds that the certified copies of the trial court’s judgment and proceedings were availed to the petitioner after the time for filing had lapsed. The appellant filed the appeal along with an application for extension of time for filing the appeal out of caution in the event that the court found that an appeal was actually filed out of time. Opposed to the appeal, the 1st respondent filed an application to have the appeal struck out for having been filed out of time without leave.","Accordingly, and for the reasons afore-stated, we make the following orders:
i.
The applicant’s notice of motion dated August 16, 2023 and filed on August 21, 2023 is hereby dismissed.
ii.
The applicant’s notice of motion dated September 29, 2023 and filed on October 2, 2023 is hereby dismissed.
iii.
The 1st respondent’s notice of motion dated September 18, 2023 and filed on September 19, 2023 is hereby allowed.
iv.
The applicant’s appeal, SC Petition No E024 of 2023 dated August 16, 2023 and filed on August 21, 2023 is hereby struck out.
v.
The 1st respondent shall have costs of the three motions and the appeal.
It is so ordered",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/96/eng@2023-11-10
Petition (Application) E018 of 2023,Republic v Mwangi; Equality Now & another (Intended Interested Party); Initiative for Strategic Litigation (ISLA) & 3 others (Intended Amicus Curiae) (Petition (Application) E018 of 2023) [2023] KESC 99 (KLR) (Civ) (10 November 2023) (Ruling),Ruling,Supreme Court of Kenya ,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola",10 November 2023,2023.0,Nairobi,Civil,"Republic
Petitioner
and
Joshua Gichuki Mwangi
Respondent
and
Equality Now & Center For Rights Education And Awareness (CREAW)
Intended Interested Party
Nathan Khaemba Makokha & Hesbon Onyango
Intended Interested Party
and
Initiative For Strategic Litigation (ISLA)
Intended Amicus Curiae
Kenya Legal And Ethical Issues Network On Hiv & Aids (KELIN)
Intended Amicus Curiae
Federation Of Women Lawyers Kenya (FIDA)
Intended Amicus Curiae
Women's Link Worldwide (WLW)
Intended Amicus Curiae",[2023] KESC 99 (KLR),,"Brief facts
The respondent, Joshua Gichuki Mwangi, was convicted of defilement under the Sexual Offences Act, 2006. Several parties applied to join the Supreme Court proceedings: two sets of interested parties sought to challenge or defend the constitutionality of mandatory minimum sentences, while a group of NGOs applied as amici curiae to offer comparative legal perspectives and advocate for victims’ rights. The applications were grounded in public interest and constitutional interpretation concerning sentencing, mitigation, and victims’ protection.","Having considered the applications, responses, and submissions before us,
We now opineas follows:
i.
Rule 24 of the Supreme Court Rules, 2020 provides that:
“
(1)
A person may, within seven days of filing a response in any proceedings, apply for leave to be joined as an interested party.
2.
An application under sub-rule (1) shall include—
a.
a description of the interested party;
b.
a depiction of such prejudice as the interested party would suffer if the intervention was denied; and
c.
the grounds or submissions to be advanced by the interested party, their relevance to the proceedings, and their departures from the standpoint of the parties.”
ii.
This Court has on numerous occasions pronounced itself on the criteria for admission as an interested party. Specifically, the Court laid guiding principles for admission of an interested party in Mumo Matemo case. These principles were reiterated and reaffirmed in Muruatetu case as follows:
“
(37)
From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party:
One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:
i.
The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
ii.
The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
iii.
Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.”
v.
It is common ground that the origin of the dispute before this Court can be traced to criminal proceedings where the respondent was charged with the offence of defilement and was subsequently tried, convicted, and sentenced in accordance with the Sexual Offences Act, 2006. Criminal proceedings have a direct impact on an individual’s fundamental rights and freedoms as enshrined in the the Constitution. Therefore, the Court must exercise caution in permitting the involvement of third parties, including interested parties and amici curiae, as their participation may lead to the proliferation of the issues brought for determination by such an individual.
vi.
In the above context, and turning to the 1st joint intended interested parties’ case, they seek to generally address the Court on the utility of minimum mandatory sentences on victims of sexual violence, and the gravity, extent, and impact of such sentences. Having carefully considered their Submissions, it is our view that the 1st joint intended interested parties raise issues of public interest generally and have not shown any personal stake in the matter, nor the prejudice they stand to personally suffer in case of non-joinder. Furthermore, the issues they seek to submit on have largely been addressed by the petitioner in this matter and there is no value in them repeating the same issues in different words. We, therefore, find that the 1st joint intended interested parties have not met the conditions for admission as interested parties.
vii.
Likewise, the 2nd joint intended interested parties have not shown any personal stake in this specific matter nor the prejudice they will suffer if not joined as interested parties. While they may be in the same position as the respondent, having been convicted of sexual offences, there is nothing they will add to the petition which the respondent cannot. Furthermore, Hesbon Onyango Nyamweya having successfully challenged the minimum mandatory nature of the sentences prescribed in the Sexual Offences Act at the High Court in Machakos, in Maingi & 5 others v Director of Public Prosecutions & another (supra) he is at liberty to pursue the same separately, if at all it has been appealed against. Consequently, we find that the 2nd joint intended interested parties have not met the conditions for joinder in the manner they seek.
viii.
We now turn to the application for admission as amici curiae by the joint intended amici curiae. In this context, the instructive provision is rule 19 of the Supreme Court Rules, 2020 which provides as follows:
“
19.
(1)
The court may on its own motion, or at the request of any party, permit a person with particular expertise to appear in any matter as a friend of the court.
Participation of friends of the court.
2.
The court shall before admitting a person as a friend of the court, consider:
a.
proven expertise of the person;
(b)
independence and impartiality of the person; or
(c)
the public interest.”
iX.
This Court has also set the guiding principles applicable in determining an application for joinder as amicus curiae in the Mumo Matemu case where it stated as follows:
“
An amicus brief should be limited to legal arguments. The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tends to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay. The Court may, therefore, and on a case-by-case basis, reject amicus briefs that do not comply with this principle.
An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.”
X.
Having considered the proposed amici brief, we note that the joint intended amici curiae intend to address the Court on points of law that no party in the proceedings has addressed including the State’s obligation under article 21 (1) of the Constitution and comparative lessons on the application of mandatory minimum sentences from other jurisdictions. In the circumstances, we are inclined to allow the application for admission of the joint intended amici curiae. However, their participation shall be limited to the filing of an amici brief only which they have already done and which the court will consider in determining the appeal.
Xi.
While it is settled that costs follow the event, we are alive to the fact that the issues raised by the parties in the instant matter constitute public interest issues. In these circumstances, we find that each party do bear their own costs.
14.
Accordingly, we make the following Orders:
a.
The Notice of Motion dated August 21, 2023 is hereby dismissed.
b.
The Notice of Motion dated August 24, 2023 is hereby dismissed.
c.
The Notice of Motion dated August 23, 2023 is hereby allowed and the participation of the amici shall be limited to the court’s consideration of the amici brief already on record.
d.
Each party shall bear their costs.
15.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/99/eng@2023-11-10
Petition (Application) 19 (E027) of 2021,Senate & 3 others v Speaker of the National Assembly & 10 others (Petition (Application) 19 (E027) of 2021) [2023] KESC 95 (KLR) (10 November 2023) (Ruling),Ruling,Supreme Court of Kenya ,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",10 November 2023,2023.0,Nairobi,Civil,"The Senate
1st Appellant
The Speaker of Senate
2nd Appellant
Senate Majority Leader
3rd Appellant
Senate Minority Leader
4th Appellant
and
The Speaker of the National Assembly
1st Respondent
The National Assembly
2nd Respondent
The Council of County Governors
3rd Respondent
The Attorney General
4th Respondent
Institute for Social Accountability
5th Respondent
Kenya Medical Supplies Authority
6th Respondent
Mission for Essential Drugs and Supplies
7th Respondent
Katiba Institute
8th Respondent
Pharmaceutical Society of Kenya
9th Respondent
Elias Murundu
10th Respondent
The Commission on Revenue Allocation",[2023] KESC 95 (KLR) ,,"Brief facts
On July 11, 2023, when the matter was mentioned before the full court, parties indicated that they were engaged in out of court negotiations with the aim of settling the dispute. Consequently, the court issued directions which were subsequently amended on July 18, 2023, granting the parties up to September 11, 2023 to complete the ongoing negotiations. On September 7, 2023, a few days before the lapse of the period granted to the parties to try and reach a settlement, the Attorney General (4th respondent) filed the instant application for orders for the court to enlarge and extend time for parties to conclude the ongoing out of court discussions aimed at recording a consent on the appeal and the cross-appeal by at least 120 days.","Taking into account the 1st to 4th appellants’ grounds of opposition to the application and submissions filed on their behalf dated October 2, 2023 to the effect that; the application is bad in law and an abuse of the court process; the applicant has not attached any evidence to the application to demonstrate that the negotiations are ongoing; that the application is an afterthought aimed at frustrating the appellants in their attempt to pursue justice; and finally that the application is an attempt to delay hearing and determination of the matter; and having considered the application, affidavits and rival arguments by the parties, we now opine as follows:
10.
Aware that this matter was certified as ready for hearing, but for the efforts of the parties to attempt an out of court settlement; that on July 11, 2023 at the request of the parties, it was taken out to give them a chance towards this end and to record a consent on or before September 11, 2023. However, four days before the lapse of the period granted, the applicant has instituted the instant application praying that time for lodging a consent compromising the appeal be enlarged.
11.
Whereas this court by the provisions of rule 15(5) of the Supreme Court Rules, 2020, has jurisdiction to extend the time limited by either the Rules or by a decision of the court and guided by the principles well enunciated in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Application No 16 of 2014; [2014] eKLR; and
12.
Taking into account that this motion was filed on September 7, 2023, before the lapse of the date set by our amended directions issued on July 18, 2023, we are persuaded that there has not been any undue delay in filing the instant application as it was filed four days prior to the deadline of September 11, 2023.
13.
Whereas the appellants have opposed this application for the reason that the applicant has not provided proof of any ongoing negotiations, we recall and it is apparent on the face of the record that when the appeal was mentioned before the full court on July 11, 2023, the appellants through their counsel Mr Okongo Omogeni, SC appearing together with Mr Letangule, Ms Thanji and Ms. Nduta, confirmed that indeed a technical team comprising representatives from both Houses were engaged in negotiations.
14.
Satisfied ourselves on the strength of the correspondence from the Office of the Prime Cabinet Secretary and several letters exchanged between the Offices of the Clerks of both Houses and the Office of the Prime Cabinet Secretary, resolutions from the various meetings and a  of the draft Houses of Parliament (Bicameral Relations) Bill, 2023 by the National Assembly, all which are annexed to the applicant’s Affidavit in support of the application; that consultative meetings involving the leadership and technical teams from both Houses have been ongoing with the aim of developing proposals on the processing of Bills. Further, the 1st and 2nd respondents have in their replying affidavit detailed the series of events that have occurred since February 2023 to date, all in an effort to settle the dispute pending before the court. Then, finally, there was the August/September break for both Houses. Consequently, we find and come to the conclusion that the reasons for the delay of settling the matter out of court have been sufficiently explained and are plausible.
15.
Evidently, there are efforts by the parties towards reaching a settlement in this dispute and seeing the significant progress so far made as deposed in the Affidavit evidence of Shadrack J. Mose and Samuel Njoroge, in terms of the two Bills, with one having passed through the first reading. And in addition, we continue to be guided in steering this dispute towards a possible settlement by the provisions of section 29C (1) of the Supreme Court Act that provides that;
“In the conduct of proceedings, the court shall promote and encourage alternative dispute resolution mechanisms, in accordance with article 159 (2) (c) of the Constitution.”
16.
Further, in line with the court’s decision in Council of Governors v Attorney General & 7 others, Reference 2 of 2017; [2019] eKLR we reiterate the statement in the following passage:
“
(64)
We reiterate that article 159(2)(c) is an important pillar of the Constitution. It is trite law that the Constitution is a living document in which life should constantly be breathed into. The provisions of the Constitution are not mute but should be nourished and sustained by our courts among other entities. Consequently, the need to encourage ADR in dispute resolution cannot be gainsaid. This burden rests on all persons and government entities by virtue of article 2(1) of the Constitution which provides that the Constitution binds all.
…
(67)
Secondly, co-operation among various state functionaries is key. Article 189 of the Constitution provides for cooperation between the two levels of governments: national and county governments. That in case of a dispute between the two levels of government, every effort to settle the dispute under the national law should be pursued. Hence this court would not allow such a requirement of the Constitution to be abdicated.” [our emphasis]
17.
Guided accordingly by the foregoing, we find that the applicant has satisfied the strictures under rule 15(2) together with the principles under Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (supra) to warrant the granting of leave to extend time within which to conclude the negotiations.
18.
Consequently, we are minded to grant the parties a final opportunity of 120 days from the date of this ruling considering the averment by the 1st and 2nd respondents that Parliament will again be proceeding on recess during part of this period.
19.
On costs, the award of the same is discretionary and follows the principle set out by this court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. In exercise of our discretion, we defer the costs of this application which shall abide the outcome of the negotiations.
20.
Accordingly, we make the following orders:
i
The applicant’s notice of motion dated September 7, 2023 be and is hereby allowed to the extent that parties are granted, from the date of this ruling, a final one hundred and twenty(120) days extension to complete out of court negotiations and record a consent to compromise this appeal.
ii.
In the event that parties reach a settlement they shall file the written terms of the settlement before this court on or before the expiration of the one hundred and twenty (120) days aforesaid.
iii.
In any case the appeal shall be mentioned before the hon Deputy Registrar on March 15, 2024 to confirm the status.
iv.
Should the parties fail to reach a settlement, the matter shall be set down for hearing on a priority basis.
v.
Costs of this application shall abide the outcome of negotiations.
It is so ordered.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/95/eng@2023-11-10
Application E017 of 2023,Dari Limited & 5 others v East African Development Bank (Application E017 of 2023) [2023] KESC 93 (KLR) (7 November 2023) (Ruling),Ruling,Supreme Court of Kenya ,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",7 November 2023,2023.0,Nairobi,Civil,"Dari Limited
1st Applicant
Raphael Tuju
2nd Applicant
Mano Tuju
3rd Applicant
Alma Tuju
4th Applicant
Yma Tuju
5th Applicant
SAM Company
6th Applicant
and
East African Development Bank
Responden",[2023] KESC 93 (KLR),,"Brief facts
On October 6, 2023 the Supreme Court (the court) dismissed the applicants’ application for conservatory orders on the grounds that: although the applicants had satisfied the arguability test, they had failed to demonstrate that the appeal would be rendered nugatory if the conservatory orders were denied. They also failed to satisfy the public interest threshold. Aggrieved by parts of that ruling, the applicants filed the instant application for review.","Guided by the provisions of section 21A of the Supreme Court Act as well as rule 28(5) of the Supreme Court Rules, 2020, together with the principles enunciated in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others (supra), we restate this court’s power to review its own decisions as follows. As a general rule, the Supreme Court cannot sit on appeal over its own decisions, or to review its decisions, save to correct obvious errors apparent on the face of the decision. However, in the exercise of its inherent powers, the court may review its decision(s) “in exceptional circumstances, so as to meet the ends of justice” in the following instances where:
“
(i)
the judgment, ruling, or order, is obtained, by fraud or deceit;
ii.
the judgment, ruling, or order, is a nullity, such as, when the court itself was not competent;
iii.
the court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
iv.
the judgment or ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.”
7.
Applying these conditions to this application, we find that the applicants have failed to demonstrate that the ruling of this court of October 6, 2023 was obtained by fraud, deceit, misrepresentation of facts or in what way it is a nullity. What the applicants have tried to do is to introduce new evidence, which was not before the court during the application for conservatory orders, in the quest to persuade this court to change its mind and rule in their favour.
8.
Consequently, we have no hesitation in declaring that, as framed, the application falls short of the exceptional circumstances, and we decline the invitation to exercise the court’s limited discretion to review the ruling. The aim of this application is to avail the applicant a second bite at the cherry. For these reasons, the application lacks substance and is disallowed.
9.
On costs, the award of the same is discretionary and follows the principle set out by this court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. In exercise of our discretion, the applicants shall bear the costs of this application.
10.
Accordingly, we make the following orders:
i.
The notice of motion dated October 12, 2023 and filed on October 13, 2023 is hereby dismissed.
ii.
The costs of this application shall be borne by the applicants.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/93/eng@2023-11-07
Petition E012 of 2023,Dari Limited & 5 others v East African Development Bank (Petition E012 of 2023) [2023] KESC 94 (KLR) (7 November 2023) (Ruling),Ruling,Supreme Court of Kenya ,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko",7 November 2023,2023.0,Nairobi,Civil,"Dari Limited
1st Applicant
Raphael Tuju
2nd Applicant
Mano Tuju
3rd Applicant
Alma Tuju
4th Applicant
Yma Tuju
5th Applicant
S.A.M Company Limited
6th Applicant
and
East African Development Bank
Respondent",[2023] KESC 94 (KLR) ,,"Brief facts
The application sought for among other orders; the striking out of the respondent’s replying affidavit sworn by Justa Kiragu and dated May 12, 2023; in the alternative, the court to grant leave to the petitioner to adduce additional evidence in terms of the affidavits of the 2nd applicant, Edward Okundi and Amos Aketch dated October 26, 2023 (the affidavits); in further alternative, the court to grant the petitioners the opportunity to file a rejoinder to the respondent’s response. The 2nd applicant contended that in response to the petition of appeal filed therein, the respondent filed a replying affidavit sworn by Justa Kiragu on May 12, 2023 which did not respond to the petition of appeal but instead, relying on the documents in the record of appeal proceeded to give a slanted narrative of the history of the engagements between the parties. 
In the alternative, if the court was not minded to strike out the response, then to affirm the constitutional right to fair hearing, leave should be granted to the petitioners to adduce additional evidence, in terms of the affidavits. It was further argued that it was prejudicial to the petitioners to proceed to the hearing of the petition of appeal without the additional evidence contained in the affidavits. ","Having therefore considered the application, supporting affidavit, affidavit in rejoinder and submissions before us by the petitioners on one hand and the replying affidavit on behalf of the respondent on the other hand, We now opine as follows:
i.
By the ruling made on October 6, 2023, we struck out the supplementary affidavits by the petitioners for want of procedure. We observed that the applicants did not invoke rule 26 in seeking to adduce additional evidence despite acknowledging that the supplementary affidavits sought to rebut averments made by the respondent. It is apparent that in filing the present application, the petitioners seek to re-introduce the contents of the said affidavits that were otherwise struck out. This in our view is akin to ingeniously seeking to discreetly review our ruling. The parties appear to be rehashing their arguments made in the application leading to the above ruling.
ii.
The main prayer before the court is for the striking out of the replying affidavit sworn by Justa Kiragu on May 12, 2023. In the alternative, the petitioners have sought leave to adduce additional evidence by way of Affidavits by Raphael Tuju, Edward Okundi and Amos Oketch with the affidavits to be deemed as filed and part of the record in the petition of appeal. In the further alternative, the petitioners pray for an opportunity to file a rejoinder.
iii.
Rule 42 of the Supreme Court Rules provides for response to petition of appeal in the following manner:
“42. (1) Unless otherwise directed by the court, a respondent shall file grounds of objection, an affidavit, or both, within fourteen days of service of the petition.”
The tenor of the above provision is that the respondent was at liberty to choose whether to file grounds of objection and/or affidavit. In this instance, the respondent opted to file the affidavit sworn by Justina Kiragu. This rule does not specify the form or content of the said response to petition. The petitioners having filed their petition and record of appeal, it is not upon the them to dictate the manner in which a respondent should file its response. The petitioners are at liberty to attack the contents of the response during the hearing of the petition, within the petition itself and not through an application such as the one before us. As such we find the prayer to strike out the replying affidavit to be premature and unmerited.
iv.
As we noted in the ruling of October 6, 2023, the applicants hinge their appeal on the question of recognition and enforcement of foreign judgments in Kenya in relation to articles 50 and 25 of the Constitution. Having declined to strike out the Replying Affidavit, does the alternative prayer for additional evidence avail? The petitioners submit that our order for striking out their affidavits was to enable them comply with the process. The petitioners have, however, sought the introduction of additional evidence as an alternative prayer.
v.
Taking the application in its context, the petitioners have not explained or justified their failure to adhere to the provisions of rule 26 of the Supreme Court at the first instance. Their attempt to seek leave to adduce additional evidence reeks of a belated afterthought with the objective of filling up gaps in its case. It is apparent that our ruling triggered the reaction by the petitioners. We therefore do not find merit in this prayer. With this finding, we do not find it necessary to interrogate the nature and threshold of the evidence sought to be adduced as clearly, the applicants are litigating/pleading in instalments. In the same vein, the prayer to deem the affidavits sworn by the 2nd petitioner, Edward Okundi and Amos Oketch as duly filed is rendered superfluous.
vi.
On the further alternative prayer for opportunity to file a rejoinder to the respondent’s response, rule 42(2) mandates the petitioner to file and serve a rejoinder within seven days of being served with the response. We understand that the honourable Deputy Registrar issued directions on the filing of rejoinder which directions the petitioners did not heed. The petitioners have neither sought to extend time within which to file the rejoinder nor explained the reasons for non- compliance. We are not persuaded that the supplementary affidavits struck out in our ruling of October 6, 2023 were intended to be the rejoinder. Those affidavits were filed specifically in response to the replying affidavit in respect of the application for conservatory orders and to strike out supplementary affidavits. At no point was the court dealing with the substantive petition. This points to the inexorable conclusion that the prayer to file a rejoinder is disallowed.
vii.
It is prudent that the matter proceeds to hearing during which the parties shall advance their respective cases for determination by the court.
viii.
On costs, it is a settled principle that they follow the event. However, since the substantive dispute is still pending, it is only proper that the costs abide the outcome of the appeal.
37.
Consequently, and for the reasons aforesaid we make the following orders:
i.
The notice of motion application dated October 26, 2023 and filed on October 27, 2023 be and is hereby dismissed.
ii.
Costs of the application shall abide the outcome of the appeal.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/94/eng@2023-11-07
Petition (Application) E015 of 2023,County Assembly of Migori v Aluochier & 2 others (Petition (Application) E015 of 2023) [2023] KESC 92 (KLR) (Civ) (27 October 2023) (Ruling),Ruling,Supreme Court of Kenya ,Supreme Court,"MK Koome, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",27 October 2023,2023.0,Nairobi,Civil,"County Assembly of Migori
Applicant
and
Isaac Aluoch Polo Aluochier
1st Respondent
Vincencia Awino Kionge
2nd Respondent
Charles Owino Likowa
3rd Respondent",[2023] KESC 92 (KLR),,,"Taking into account the pleadings and submissions of the parties, we now opineas follows:
i.
We must first settle the issue raised by the 2nd Respondent that the appeal before us is premature and ought to be struck out and without even going into the merits of the application before us.
ii.
In that context, we note that the judgment by the Court of Appeal sought to be appealed against is brief and was delivered on May 26, 2023, with no reasons, pursuant to Rule 34(6) of the Court of Appeal Rules, 2022. The Court’s direction on that day was that the reasons for the judgment would be delivered on September 22, 2023. We are not aware whether the reasons were delivered on that day but it matters not because there is no reasoned judgment before us.
iii.
In Jimi Richard Wanjigi v Wafula Chebukati & 2 others, SC Application No 6 of 2022 and Oscar Oluoch Ouma Abote v Loice Akoth Kawaka & 4 others; SC Petition No 16 of 2022, we specifically held that there can be no basis upon which a petition of appeal can be jurisprudentially determined in the absence of reasons for an impugned judgment. This in effect, renders any hearing of the Applicant’s petition of appeal before this Court, untenable, in the absence of the reasons for the Court of Appeal judgment. The reason for this finding is obvious-we cannot determine whether we have jurisdiction to determine the petition of appeal without having sight of a wholesome judgment from the Court of Appeal. Jurisdiction, it has been said often, is everything and without an appellant laying a firm basis for it, no court can be properly moved.
iv.
In the same limb, the 1st Respondent’s cross appeal, also similarly grounded on the reasons in the Court of Appeal judgment, lacks any legs to stand on and must meet the same fate as the petition of appeal. It would be a waste of precious judicial time and resources to consider whether it is properly onrecord or not.
v.
In effect, having found that the petition of appeal is not properly before us, we are unable to consider the application nor can we grant or deny the orders sought therein.
vi.
On costs, although they ordinarily follow the event, no party has succeeded in any manner and so each shall bear its costs of the proceedings before us.
9.
Consequently, and for reasons aforesaid, we make the following Orders:
Orders:
i.
The Notice of Motion dated and filed on August 3, 2023 is struck out;
ii.
The Petition of Appeal dated June 12, 2023 as well as the Cross Appeal dated June 27, 2023 as filed by the 1st Respondent are hereby struck out.
iii.
Each party shall bear their costs of the proceedings before us.
10.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/92/eng@2023-10-27
Petition (Application) 12 (E014) of 2022,Barclays Bank of Kenya Limited (Now Absa Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayer’s Office); Kenya Bankers Association & another (Interested Parties) (Petition (Application) 12 (E014) of 2022) [2023] KESC 91 (KLR) (6 October 2023) (Ruling),Ruling,Supreme Court of Kenya ,Supreme Court,"PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko",6 October 2023,2023.0,Nairobi,Civil,"Barclays Bank Of Kenya Limited (Now Absa Kenya PLC)
Petitioner
and
Commissioner Of Domestic Taxes (Large Taxpayer’s Office)
Respondent
and
Kenya Bankers Association
Interested Party
Mastercard Asia Pacific (PTE) Limited
Interested Party",[2023] KESC 91 (KLR),,"Brief facts
The applicant (an interested party in the suit) sought leave to adduce additional evidence in support of the applicant’s replying affidavit. The applicant contended that the applicant was joined at the final stage of appeal (before the Supreme Court) and therefore had no opportunity to produce evidence before the superior courts below. The applicant further contended that the evidence in question was credible, authentic, was directly relevant to the issues presented for determination, and would have a significant impact on the final verdict of the Supreme Court.
The respondent opposed the application on grounds that the applicant was not a primary party to the suit and as such could neither frame new issues nor adduce additional evidence. The respondent claimed that the applicant had also failed to meet the principles set under case law to adduce additional evidence. ","We now opine as follows: -
i.
The applicant is duty bound to satisfy all the elements under the provisions of section 20 of the Supreme Court Act, 2011; rule 26 of the Supreme Court Rules, 2020; and the principles set out in the Mohamed Abdi Mahamud case (supra);
ii.
This court in the said decision emphasized that even with the application of the set principles, the court will only allow additional evidence on a case-by-case basis and even then, sparingly and with abundant caution;
iii.
It is evident that the additional evidence sought to be introduced is either part of the record before this court or in the public domain both locally and internationally; and
iv.
Had the applicant’s advocates on record exercised due diligence and taken time to peruse the court’s record, they would have spared this court’s judicial time as well as their client’s and other parties’ time and resources.
12.
Applying these principles to the application, we arrive at the inevitable conclusion that none of the conditions for the grant of leave to adduce additional evidence have been satisfied. Similarly, for reasons aforesaid, we find the instant application frivolous and an abuse of court process.
13.
Consequently, we make the following orders:
i.
The motion dated July 6, 2023 and filed on July 10, 2023, is hereby dismissed;
ii.
The costs of this application shall be borne by the applicant.
It is so ordered.",,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/91/eng@2023-10-06
Petition (Application) E012 of 2023,Dari Limited & 5 others v East African Development Bank (Petition (Application) E012 of 2023 & Application E017 of 2023 (Consolidated)) [2023] KESC 90 (KLR) (6 October 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",6 October 2023,2023.0,Nairobi,Civil,Dari Limited & 5 others v East African Development Bank,[2023] KESC 90 (KLR)               ,,"Brief facts
The Supreme Court in the instant ruling was determining over three applications. The applicants filed the first application in which they sought conservatory orders staying the execution of a judgment of the Court Appeal which condemned the applicant to pay USD 15,162,320.95 to the respondent for default in repayment of a loan arising from a facility agreement. 
The other two applications were by the respondent which sought to strike out the applicant’s supplementary affidavits. The distinguishable difference between the two applications was that one application sought to strike out the affidavits on grounds that they presented privileged documents which had been improperly and/or unlawfully obtained. The second application contended that the documents presented in the affidavits did not form part of the record of the High Court and Court of Appeal and as such ought not to be considered and or interrogated for purposes of determination of the petition as they did not form part of the record before the Supreme Court.
Issues
Whether the enforcement of a foreign judgment was a matter of public interest warranting an appeal to the Supreme Court.
Whether a dispute arising out of a facility agreement between a bank and its client was a matter of public interest warranting an appeal to the Supreme Court.
Whether the Supreme Court would strike out supplementary affidavits which effectively introduced additional and fresh evidence without following the prescribed legal procedure.
Held
Empowered by rule 40(3) of the Supreme Court Rules, the Supreme Court could, on application of any party, direct certain documents to be excluded from the record, and an application for such exclusion could be made orally. The annexures adduced by the applicants in the supplementary affidavit were not produced in the superior courts below. 
It was a party’s duty to satisfy all the elements under the provisions of section 20 of the Supreme Court Act that guided the court in admitting additional evidence. Under rule 26, a party that sought to adduce additional evidence should make a formal application to the court. The supplementary affidavits sought to rebut averments made by the respondent. However, that did not extend to allowing the applicants to introduce additional evidence through the backdoor. Proper procedures as prescribed by the law must be followed. The applicants failed to do so. The supplementary affidavits were therefore struck out.
Under section 21 (2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules, the Supreme Court had inherent power to make any ancillary or interlocutory orders that it deemed fit to make as it may be necessary for the ends of justice or prevent abuse of the process of the court. To consider whether to entertain the interlocutory relief sought, an applicant must demonstrate that the appeal was arguable and not frivolous; that if stay was not granted the appeal will be rendered nugatory; and that it was in the public interest that the order of stay was granted.
The proceedings pending before the High Court did not directly arise in the instant appeal. The impugned judgment by the Court of Appeal made no reference to the instant proceedings. The stay over these proceedings emanated from the Court of Appeal ruling in Civil Appeal No 202 of 2020 consolidated with Nos 203, 204, 205 & 206 of 2020 that was necessitated by the ruling of the High Court that declined to extend the stay orders that had been issued by the Court of Appeal. The applicants had not adduced any evidence of the existence of any appeal on these issues before the Court of Appeal. With the judgment having been made by the Court of Appeal on the main issue on recognition and enforcement of the foreign judgment, the pending proceedings before the High Court were beyond the Supreme Court’s remit.
Questions on the arguability of an appeal did not call for the interrogation of the merits of the appeal and the court, at the preliminary stage, must not make any definitive findings of either fact or law. An arguable appeal was not one which necessarily must succeed but one which ought to be argued fully before the court. The applicants hinged their appeal on the question of recognition and enforcement of foreign judgments in Kenya that violated article 50 as read with article 25 of the Constitution. That was an issue that had arisen through the superior courts below as the applicants pursued their quest to set aside the adoption of a foreign judgment as a judgment of the High Court of Kenya. The applicants had an arguable appeal, the merit of which could only be interrogated at the hearing.
In determining whether the subject matter to be stayed was reversible, a court had to balance the interest of the applicant vis-à-vis that of the respondent who was seeking to enjoy the fruits of its judgment. The balance of probability favoured the respondent. Though the respondent held securities being charges over the suit properties which were located in a suburb area in Nairobi in their favour; as well as the security of Kshs. 50,000,000/- deposited in the joint names of the parties’ advocates in an interest earning account; the amount owed to the respondent was colossal with a decretal sum of USD 15,162,320.95 that continued accruing interest. The appeal before the court was founded on the enforcement and recognition of a foreign judgment as against the Supreme Court’s judgment in Ingang’a & 6 others v James Finlay (Kenya) Limited (Petition 7 (E009) of 2021) [2023] KESC 22 (KLR) (31 March 2023) (Judgment)
The money decree issued was a result of the findings on the primary dispute. The enforceability and validity of the facility agreement dated April 10, 2015 as between the different parties was a distinct issue whose determination accrued from a different cause of action. The parties were, in any event, engaged before the High Court.
The respondent remained a reputable international bank that should have no difficulty compensating the applicants if the applicants succeeded in their claim. The applicants’ apprehension as to the diplomatic immunity afforded to the respondent did not suffice. The applicants had not demonstrated the extent to which, if at all, the alleged immunity accrued and applied to the instant case. The court could not be called upon to make a determination on immunity or otherwise of the respondent, as the issue was not on appeal before the Supreme Court, having not been subject of judicial determination in the superior courts below.
The dispute between the parties arose out of the facility agreement entered into by the parties on April 10, 2015 and the terms thereunder. They were at best private interests that were at stake that did not have a bearing on public interest as the settings were specific to the parties in the dispute. Enforcement of a foreign judgment was not in and of itself an affirmation of public interest until it was interrogated further as could be applicable on a case to case basis. Prima facie, the applicants’ dispute was a matter of “private international law” or “conflict of laws”.
It was premature for the Supreme Court to wade into the merits of the international law aspect of the dispute as to satisfy the public interest threshold to warrant our intervention. That position extended to the applicability of article 50 of the Constitution on the right to fair hearing in view of the purely private and/or commercial engagement between the parties. The applicants had not demonstrated that they could surmount the public interest criteria for exercise of our discretion in their favour.","In relation to the proceedings pending before the High Court, we note that they do not directly arise in the appeal before us. The impugned judgment by the Court of Appeal makes no reference to these proceedings. Having interrogated the record, it is evident that the stay over these proceedings emanated from the Court of Appeal ruling in Civil Appeal No 202 of 2020 consolidated with Nos 203, 204, 205 & 206 of 2020 that was necessitated by the ruling of Kasango J in HCCC E469 of 2019 on July 8, 2020 that declined to extend that stay orders that had been issued by the Court of Appeal in Civil Appeal No 49 of 2020. The applicants have not adduced any evidence of the existence of any appeal on these issues before the Court of Appeal. With the judgment having been made by the Court of Appeal on the main issue on recognition and enforcement of the foreign judgment, these pending proceedings before the High Court are beyond our remit.
30.
In saying so, we align ourselves to our findings in the Kenya Plantation & Agricultural Workers’ Union v Kenya Export Floriculture, Horticulture And Allied Workers’ Union (Kefhau); represented by its Promoters; David Benedict Omulama & 9 others SC Pet No 4 of 2018; [2019] eKLR where we held as follows:
“
(23)
That the court has had the advantage of assessing the facts and legal arguments placed and advanced before it by the parties since the alleged causes are live before it. Accordingly, that court should ideally be afforded the first opportunity to express an opinion as to whether the causes filed and being filed before it raise similar questions as to the ones being raised before the Supreme Court. Should the applicants be dissatisfied with the decision of that Court, they shall be free to appeal that decision before the Court of Appeal and subsequently to this court through the normal appellate mechanism. To allow the applicant disregard the courts below and come directly to this court in search of stay orders, would amount to an abuse of the process of court. This was the reasoning of this court in the case of Sum Model Industries Ltd v Industrial & Commercial Development Corporation, SC Application No 1 of 2011; [2011] eKLR.”
It is our finding that since, the proceedings the applicants seek to be stayed are not in the purview of this court, it would only be right to afford the trial court the opportunity to render its decisions and if necessary, the dissatisfied party to follow the appellate hierarchy. This leaves us with the sole prayer for conservatory orders staying the judgment of the Court of Appeal.
31.
On whether an appeal is arguable, we pronounced ourselves in Tanad Transporters Limited & 2 others v Laiser Communications Limited & 2 others, SC Petition No 7 (E009) of 2022 and George Boniface Mbugua v Mohammed Jawayd Iqbal (Personal representative of the Estate of the late Ghulam Rasool Jammohamed) SC Miscellaneous Application No 7 (E011) of 2021 [2021] eKLR that this question does not call for the interrogation of the merits of the appeal and the court, at this stage, must not make any definitive findings of either fact or law. An arguable appeal is not one which necessarily must succeed but one which ought to be argued fully before the court. The applicants hinge their appeal on the question of recognition and enforcement of foreign judgments in Kenya that violate article 50 as read with article 25 of the Constitution. This is an issue that has transcended through the superior courts below as the applicants pursued their quest to set aside the adoption of a foreign judgment as a judgment of the High Court of Kenya. It is our view that this sufficiently demonstrates that the applicants have an arguable appeal, the merit of which can only be interrogated at the hearing.
32.
On the nugatory aspect, the concern is whether what ought to be stayed is allowed to happen is reversible, or not. To establish this, a court has to balance the interest of the applicant vis a vis that of the respondent who is seeking to enjoy the fruits of its judgment. (See Tanad Transporters Limited Case (supra)). The applicants assert that there is imminent danger of eviction from LR No 1055/165 and LR No 11320/3 which the respondent currently holds as securities. That in the event their appeal succeeds, the respondent’s immunity may prevent the applicants from recovering their monies. Conversely, the respondent contends that the amount in question which is owed to them is considerably substantial, and in any case, the applicants can be compensated by way of damages.
33.
Matching the competing arguments under the circumstances, the balance of probability favours the respondent. We say so because, though the respondent currently holds securities being charges over LR No 1055/165 and LR No 11320/3 which are located in a suburb area in Nairobi in their favour; as well as the security of Kshs. 50,000,000/- deposited in the joint names of the parties’ advocates in an interest earning account; the amount owed to the respondent is colossal with a decretal sum of USD 15,162,320.95 that continues accruing interest. The appeal before us is founded on the enforcement and recognition of a foreign judgment as against our judgment in Elly Okong’o Ing’ang’a case. The money decree issued is a result of the findings on the primary dispute as already stated. The enforceability and validity of the Facility Agreement dated April 10, 2015 as between the different parties is, in our view, a distinct issue whose determination accrues from a different course of action. The parties are, in any event, still engaged before the High Court including in High Court Insolvency Cases E001, E002, E003, and E004 of 2020, as consolidated with E469 of 2019.
34.
We are satisfied that the respondent remains a reputable international bank that should have no difficulty compensating the applicants if the applicants succeeded in their claim. The applicants’ apprehension as to the diplomatic immunity afforded to the respondent does not suffice. This is because the applicants have not demonstrated the extent to which, if at all, the alleged immunity accrues and applies to the present situation. Moreover, we cannot at this stage be called upon to make a determination on immunity or otherwise of the respondent, as the issue is not on appeal before this court, having not been subject of judicial determination in the superior courts below.
35.
Lastly, on the public interest element, we note that although the intended appeal is on the recognition of the foreign judgment, the arguments raised by the applicant with respect to the present application revolve around their grievances with the enforcement of the resultant money decree. Our perusal of the record reveals that the dispute between the parties arose out of the Facility Agreement entered into by the parties on April 10, 2015 and the terms thereunder. These are at best private interests that are at stake that do not have a bearing on public interest as the settings are specific to the parties in this dispute. In our view, enforcement of a foreign judgment is not in and of itself an affirmation of public interest until it is interrogated further as may be applicable on a case to case basis. We think that, prima facie, the applicants’ dispute is a matter of “private international law” or “conflict of laws” as known in other jurisdictions.
36.
It is premature for the court to wade into the merits of the international law aspect of the dispute as to satisfy the public interest threshold to warrant our intervention. This position extends to the applicability of article 50 of the Constitution on the right to fair hearing in view of the purely private and/or commercial engagement between the parties. It is our inescapable conclusion that the applicants have not demonstrated to our satisfaction that they can surmount the public interest criteria for exercise of our discretion in their favour.
37.
",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/90/eng@2023-10-06
Petition 17 (E021) of 2022,Janmohamed S.C (Suing as the Executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi) & another v Lagat & 4 others (Petition 17 (E021) & 24 (E027) of 2022 (Consolidated)) [2023] KESC 85 (KLR) (Civ) (6 October 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",6 October 2023,2023.0,Nairobi,Civil,Janmohamed S.C,[2023] KESC 85 (KLR)               ,,"Brief facts
The 2nd respondent filed an application contending that the appeal raised no issues of constitutional interpretation. The applicant sought for the application to be struck out and for the firms that filed the petition to be sanctioned for filing frivolous and vexatious petitions. 
Issues
Whether the Supreme Court could determine on an application contesting its jurisdiction where it had already ruled that it had jurisdiction in a previous ruling. 
Held
In a ruling dated October 28, 2022, the Supreme Court had previously ruled that it had the jurisdiction to entertain the instant matter. The issue of jurisdiction was conclusively determined in the ruling. All other issues raised by the applicant were misguided and did not require the Supreme Court’s attention. The instant application was frivolous, vexatious, and an abuse of the process of court. 
Application dismissed.","Upon considering the motion by the 2nd respondent dated June 14, 2023, and lodged on June 15, 2023, pursuant to article 163(4)(a) of the Constitution, sections 12, 15, 21(2) of the Supreme Court Act, No 7 of 2011 and rules 3(4) and (5), 31(6), 40(1) of the Supreme Court Rules 2020, seeking orders, to;
""Stay the determination of the application dated January 13, 2023 for leave to adduce additional evidence; strike out Petition No 17 (E021) of 2022 (as consolidated with Petition No 24 (E027) of 2022); alternatively, in relation to Petition No 17 (E021) of 2022, expunge grounds of appeal pleaded at paragraph 22 (a) to (g) of the petition, with the exception of paragraph 22(d), paragraphs 23 to 59, 71 to 75 setting skeletal arguments in support of the appeal, and paragraphs 76(a),(b),(c),(e) and (f) with the exception of (d) delimitating issues for determination by the Court; sanction and punish the firms of Kinoti Kibe & Company Advocates and Kemboy Law Advocates for filing a frivolous and vexatious petition outside the purview of article 163(4)(a) of the Constitution; and any further orders the court deems fit to grant; and
2.
Upon examining the grounds on the face of the application, supporting affidavit sworn by Mr David K Chelugui on June 14, 2023, and the applicant’s written submissions dated June 14, 2023, wherein it is argued that; the appeal raises no issues of constitutional interpretation or application; of the five issues delimitated by the appellate court for determination, the only constitutional issue is on retrospective application of the Constitution, which was only addressed from a theoretical perspective and did not constitute the ratio decidendi of the impugned judgment; the 1st appellant’s arguments at paragraphs 22(a) to (g) and 27 of Petition No 17 (E021) of 2022 are a unilateral construct of constitutional provisions and not questions addressed or determined by the Court of Appeal; and the issue of retroactive application of the Constitution has not transmuted through the hierarchy of courts, but was raised for the first time before the Court of Appeal; and
3.
Further, noting the 1st appellant’s replying affidavit sworn by Zehrabanu Janmohamed SC on June 29, 2023 and submissions dated June 30, 2023 in opposition, on grounds inter alia that; the applicant’s prayer seeking stay of the determination of the application dated January 13, 2023 has been overtaken by events in view of the ruling delivered on June 16, 2023; that the court’s jurisdiction to entertain the appeal was settled in the affirmative in the ruling of this court delivered on October 28, 2022; and the applicant’s advocate on record, Mr Ahmednasir Abdullahi SC has made unfounded and disparaging remarks against this court, the Deputy Registrar, the disputing parties, and advocates en masse, once again evincing conduct deprecated and admonished by this court in the case of Republic v Ahmad Abolfathi Mohammed & another KESC Petition No 39 of 2018 [2019] eKLR; and
4.
Upon considering the 2nd appellant’s replying affidavit sworn by Jaswant Singh Rai on July 27, 2023 and submissions of even date, to the effect that; the consolidated appeal involves the interpretation and application of the Constitution, thus falls squarely within the ambit of article 163(4)(a) of the Constitution; the proceedings at both the Eldoret Environment and Land Court in Petition No 9 of 2014 and the Court of Appeal in Kisumu Civil Appeal No 159 of 2019 as consolidated with Kisumu Civil Appeal No 254 of 2019, involves interpretation of articles 24, 40 and 259(1) of the Constitution, particularly, the application of the Limitation of Actions Act to the enforcement of fundamental rights and freedoms protected under the bill of rights; and, the question of retrospective application of the Constitution was raised before the trial court in the replying affidavit of Philip Vargese dated November 25, 2014, and ground 4 of the grounds of opposition dated November 25, 2022 but no determination was made; and
5.
Upon noting the applicant’s rejoinder to the 1st appellant’s submissions dated July 18, 2023, and response to the 2nd appellant’s submissions dated August 3, 2023, wherein the applicant faults the 1st appellant’s counsel for making unwarranted remarks against its advocate on record; reiterates that article 24 of the Constitution was not cited, interpreted or applied in the determinative portion of the Court of Appeal’s judgment; and that the Court of Appeal did not interpret or apply article 40 of the Constitution, but only adhered to precedent set by the Supreme Court in the cases of Kiluwa Limited & another v Business Liaison Company Limited & 3 others (Petition 14 of 2017) [2021] KESC 37 (KLR) (6 August 2021) (Judgment); and Samuel Kamau Macharia v Kenya Commercial Bank SC Application No 2 of 2011 [2012]eKLR; and
6.
Noting this court’s ruling dated October 28, 2022, on the question of its jurisdiction to determine this appeal, wherein we pronounced ourselves thus:
“[14] …. It is evident that the appeal raises issues involving the interpretation or application of the Constitution, therefore, in keeping with this court’s decision in Lawrence Nduttu, we find that we have the jurisdiction to entertain the appeal and application before us.”
7.
We now determine as follows:
""Having carefully considered the application, responses thereto, and rival submissions by the parties, and guided by this court’s ruling dated October 28, 2022, in this same appeal; we find that the issue as to whether the court has jurisdiction under article 163(4)(a) was conclusively determined in the ruling aforesaid. All other issues raised by the applicant are in the circumstances completely misguided and do not require our attention at all. Consequently, and without saying more, we deem the application before us frivolous, vexatious, and an abuse of the process of court. '",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/85/eng@2023-10-06
Civil Application E025 of 2023,Kabuito Contractors Ltd v Attorney General (Civil Application E025 of 2023) [2023] KESC 89 (KLR) (Civ) (6 October 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",6 October 2023,2023.0,Nairobi,Civil,Kabuito Contractors Ltd v Attorney General,[2023] KESC 89 (KLR)               ,,"Brief facts
The application sought the review and setting aside of the order of May 26, 2023 by a single judge of the court (the judge) marking the notice of appeal dated March 8, 2023 from the decision of the Court of Appeal in Civil Appeal No. 638 of 2019, Attorney General v Kabuito Contractors Ltd as withdrawn. The applicant contended that on March 10, 2023, it filed a notice of appeal before the instant court evincing his intention to appeal against the decision of the Court of Appeal. The applicant further contended that the matters in dispute were of general public importance. 
The applicant stated that it filed an application for certification dated March 31, 2023 at the Court of Appeal and that by May 22, 2023 the Court of Appeal had not issued directions on the application for certification. The applicant further averred that on May 26, 2023, the court (the judge) issued an order deeming the notice of appeal filed before the court withdrawn for failure to file an appeal within the period stipulated by the Supreme Court Rules. 
Issues
What were the guiding principles for review of a decision of the Supreme Court made in exercise of discretion?","Upon reading the notice of motion by the applicant dated June 23, 2023 and filed on July 24, 2023, brought pursuant to articles 50 and 163(4)(b) of the Constitution, sections 3A, 15B and 21A of the Supreme Court Act, rules 33 and 36 of the Supreme Court Rules 2020 seeking orders that;
'
This honourable court be pleased to review and set aside its Order of May 26, 2023 by the Honourable Justice Lenaola marking the notice of appeal dated March 8, 2023 from the decision of the Court of Appeal in Civil Appeal No 638 of 2019, Attorney General v Kabuito Contractors Ltd as withdrawn; and'
2.
Upon considering the grounds in support of the application and the averments contained in the supporting affidavit sworn by Kithinji Marete on June 23, 2023 wherein he contends that; on March 10, 2023, the applicant filed a notice of appeal before this court evincing his intention to appeal against the decision of the Court of Appeal in Civil Appeal No 638 of 2019, Attorney General v Kabuito Contractors Ltd delivered on March 3, 2023 overturning the judgment in HCCC No 284 of 2008 issued in favour of the applicant; the matters in dispute being of general public importance, the applicant filed an application for certification dated March 31, 2023 at the Court of Appeal; by May 22, 2023 the Court of Appeal had not issued directions on the application for certification; on May 26, 2023, this court (Lenaola, SCJ) issued an order deeming the notice of appeal filed before the court withdrawn for failure to file an appeal within the period stipulated by the court’s Rules; and that no appeal can be filed until the same is certified as a matter of general public importance; and
3.
Upon considering the applicant's submissions dated June 23, 2023 and filed on June 24, 2023 in which the applicant submits that; the court has discretion under sections 3A and 21A of the Supreme Court Act to review any of its decisions in instances where the court considers it meritorious, exceptional and in the public interest; the application is meritorious because the order subject of the application was grounded on failure to institute its appeal within the prescribed time; the notice of appeal deemed withdrawn by the court was proper pursuant to rule 36 of the Supreme Court Rules, 2022 and that rule 36(4) provides that it is not mandatory to obtain certification at the Court of Appeal before filing the notice of appeal; rule 38(1)(b) of the Supreme Court Rules provides that an appeal to this court where certification is required ought to be filed within 30 days of the grant of certification; by the time of grant of the order of May 26, 2023, the applicant was yet to receive any directions from the Court of Appeal on its application for certification; in issuing the order, the Judge was not aware of the foregoing proceedings and proceeded in the mistaken belief that it was the applicant’s mistake in not lodging an appeal within the prescribed period; the applicant is keen on pursuing the appeal as evidenced by the filing of the notice of appeal as was held by this court in Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others (Petition 18 (E020) of 2022) [2023] KESC 28 (KLR) (21 April 2023)(Ruling);
'should the order of the judge not be reviewed and set aside, the applicant will suffer grave injustice as it shall be deprived of the right to fair hearing as provided under article 50 of the Constitution; and'
4.
Upon considering the replying affidavit sworn on behalf of the respondent on August 4, 2023 by Emmanuel Kiarie, Principal State Counsel in the office of the respondent and filed on August 7, 2023 where it opposes the application on the grounds that; the applicant has failed to establish any new and important matters of evidence which were not within its knowledge after the exercise of due diligence or that such matters or evidence could not be produced by it at the time when the order of May 26, 2023 was issued by Justice Lenaola; it was not necessary to obtain certification before lodging the notice of appeal on matters of general public importance and the application lacks merit and should be dismissed. The deponent also downplays the matters which the applicant will ultimately seek certification on before this court for lack of lacunae in the law of contract and failure to specify the articles of the Constitution for which the matters alluded to will assume a constitutional trajectory.
5.
Having therefore considered the application, response, and submissions before us, we now opine as follows:
i.
Section 23(C) of the Supreme Court Act confers upon the court the jurisdiction to review the decision of a single Judge by five or more judges, upon application by a party aggrieved by the decision of a single judge.
ii.
This court set the guiding principles for review of a decision of the court made in exercise of discretion in Parliamentary Service Commission v Martin Nyaga Wambora & others SC Application No 8 of 2017; [2018] eKLR where it, inter alia, stated that;
(31)
…
vi.
The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise [of] discretion and:
a.
as a result a wrong decision was arrived at; or
b.
it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.'
iii.
In the instant application, the applicant contended that the order of May 26, 2023 deeming the notice of appeal as withdrawn was made by the single judge, unaware of the pending certification application at the Court of Appeal. Rules 36(1) and (4) of the Supreme Court Rules 2020 provide that:
(1)
A person who intends to make an appeal to the court shall file a notice of appeal within fourteen days from the date of judgment or ruling which is the subject of appeal…
(4)
In lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.' (Emphasis ours).
iv.
On the other hand, rule 38(1) of the Supreme Court Rules provides for the timelines for filing an appeal in the following manner:
(1)
An appeal to the court shall be filed within—
a.
thirty days of the date of filing the notice of appeal, where the appeal is as of right; or
b.
thirty days after the grant of certification, where such certification is required.'
v.
The court has discretion under rule 46(1) of the Supreme Court Rules, 2020 on its own motion, or on application by any party, to make such orders as may be necessary in instances where a party lodges a notice of appeal but fails to institute the appeal within the prescribed time.
vi.
Taking the above into consideration, has the applicant satisfactorily demonstrated that the Judge misdirected himself in the exercise of the powers conferred under rule 46(1) and as a result arrived at a wrong decision? Or is it manifest from the decision that the judge was wrong and as a result, there has been an apparent injustice? The answers to the above questions are in the negative. We note that although the applicant has attached a notice of appeal and an application for certification at the Court of Appeal, there is no evidence that the notice, though filed, was lodged before the Registrar of the Court of Appeal or that the application for certification filed at the Court of Appeal was eventually lodged.
vii.
Furthermore, the applicant made no attempt to justify the continued existence of the notice of appeal on the court’s record for a period outside that permitted by rules 36 and 38 of the Supreme Court Rules. The belated explanation by the applicant does not suffice at this late stage. In any event, if the application before the Court of Appeal succeeds -if it exists at all- the applicant will have sufficient time to move this court under the relevant rule. And if it does not succeed, the procedure for review of that decision is available to the applicant.
viii.
Having stated as above, we concur with the decision made by the Honourable Justice I Lenaola on May 26, 2023 deeming the notice of appeal withdrawn. Consequently, the applicant’s application dated June 23, 2023 must be dismissed.
ix.
The notice of appeal having been deemed as withdrawn, we see no reason to award costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/89/eng@2023-10-06
Application E023 of 2023,Kiarie v Dyer & Blair Investment Bank Limited & another (Application E023 of 2023) [2023] KESC 87 (KLR) (6 October 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",6 October 2023,2023.0,Nairobi,Civil,Kiarie v Dyer & Blair Investment Bank Limited & another,[2023] KESC 87 (KLR)               ,,"Brief facts
The appellant had filed an application for review of the ruling of the Court of Appeal that denied the applicant certification to file an appeal before the Supreme Court. At the High Court the matter revolved a question on the interest payable form a transaction between the applicant and an investment adviser and stockbroker. The Court of Appeal agreed with the High Court that the 1st respondent failed to invest the funds in question in treasury bonds as agreed between the parties; however, the Court of Appeal differed in the award for damages. Aggrieved, the applicant sought to appeal at the Supreme Court.
The Court of Appeal denied its application for certification on grounds that the issues raised by the applicant did not transcend the applicant’s personal interests; and that they were by their very nature, ordinary issues that did not rise beyond the business relationship between the applicant and 1st respondent. The applicant filed the instant application seeking to review the decision of the Court of Appeal. 
Issues
What conditions did an appellant that sought certification before the Court of Appeal need to satisfy to warrant an appeal to the Supreme Court?
Held
An intending appellant that sought grant of certification before the Court of Appeal must demonstrate the following to warrant certification:
that the issue to be canvassed transcended the circumstances of the particular case and had a significant bearing on public interest;
that the appeal raised a substantial point of law the determination of which would have a significant bearing on public interest;
that the question for determination had risen through the judicial hierarchy and had been the subject of judicial determination; and
that there had been uncertainty in the law which required resolution.
The mere apprehension of a miscarriage of justice and determinations of fact in contests between parties were not, by themselves, a basis for granting certification to appeal to the Supreme Court.
None of the matters sought to be raised in the intended appeal transcended the interests of the parties herein. The determination of any or all of those issues would not affect any other group of persons or the public in general. The grounds entailed determinations of facts by construing the terms and conditions of a contract between the applicant and the 1st respondent.
Application dismissed, decision of the Court of Appeal affirmed.
","Upon reading the originating motion application by the applicant dated June 21, 2023 and filed on June 26, 2023 pursuant to article 163(4)(b) of the Constitution, section 16 of the Supreme Court Act 2011 and rule 33(3) of the Supreme Court Rules 2020 for orders that:
i.
The decision of the Court of Appeal dated 9th June in Civil Application No Sup 7 of 2017 be reviewed.
ii.
The decision of the Court of Appeal dated 9th June in Civil Application No Sup 7 of 2017 be set aside and substituted with an order allowing the applicant’s notice of motion dated September 7, 2017 filed at the Court of Appeal.
iii.
An order do issue certifying the applicant’s intended appeal of the decision of the Court of Appeal dated July 28, 2017 in Civil Appeal No 78 of 2016 consolidated with Civil Appeal No 62 of 2016 as a matter of general public importance.
iv.
Leave to appeal the decision of the Court of Appeal dated July 28, 2017 in Civil Appeal No 78 of 2016 consolidated with Civil Appeal No 62 of 2016 be granted.
v.
Costs of the application be provided for; and
2.
Upon perusing the grounds on the face of the application, the supporting affidavit of John Kungu Kiarie, the applicant, and the submissions filed on his behalf on June 26, 2023, wherein he raises the following seven issues that he considers to involve matters of general public importance:
a.
Whether interest on treasury bonds in the year 2003 was 10% and whether this issue was pleaded, or evidence led to prove it. If not, whether this was a travesty of justice by the Court of Appeal.
b.
Whether the Court of Appeal has the power to introduce its own evidence in a case or use evidence neither pleaded, adduced or determined by the High Court thereby considering extraneous matters.
c.
Whether the applicant was entitled to only one year interest of 10% of the investment of Kshs 91,500,000/-.
d.
Whether there was privity of contract between the applicant and the 2nd respondent.
e.
Whether the interests on the awarded damages ought to attract interest from the date of the High Court judgment.
f.
Whether a successful party should be denied costs without justification and whether this goes against well-established principles.
g.
Whether the Court of Appeal decision violated the applicant’s rights under articles 50(1), 48, 25 and 10 of the Constitution; and
3.
Bearing in mind the facts giving rise to the dispute between the parties and noting that the 1st respondent and the applicant had a long-standing relationship. The former was the latter’s investment adviser and stockbroker from time to time. Of significance to this application was a transaction in 2003 wherein the applicant availed to the 1st respondent Kshs 100 million to invest on the applicant’s behalf. The funds became the subject of investigations by the Central Bank’s Anti- Banking Fraud Unit. The investigations culminated in the applicant being charged with several counts of obtaining money by false pretence; and
4.
Considering that in response to these events, the applicant’s accounts with the 2nd respondent were frozen, which gave further rise to this dispute, because after these issues were resolved and the applicant acquitted, it turned out that the freezing was unwarranted. The question before the two courts below turned on what reliefs the applicant was entitled to from the 1st respondent. Later, the 1st respondent released to the applicant the principal amount of Kshs 67,500,000 and interest of Kshs 2,296,559.75. The applicant was shocked and wondered how such a colossal amount (the principal sum) which had been held by the 1st respondent for a period of over 4 years could earn such low interest, bearing in mind that during the pendency of the criminal trial, the applicant successfully applied for the release of Kshs 24,000,000; and
5.
Acknowledging that the applicant, for his part, demanded Kshs 465,500,000 as loss of income and interest of 16% per annum to be calculated on a daily basis until payment in full; and
6.
Noting that the Court of Appeal agreed with the High Court that the 1st respondent failed to invest the funds in question in treasury bonds as agreed between the parties. The Court of Appeal, however disagreed with the High Court and set aside the award of damages and the interest applied thereon by the High Court which had implied that the contract to invest funds had been renewed for the duration of four years. According to the Court of Appeal, there was no basis for the four-year period. Instead, it held the view that an award of damages equivalent to the returns the respondent would have earned from the investment in treasury bonds for a period of one year 'within the terms of the investment contract' would suffice; that the applicant was therefore only entitled to damages for one year and an interest rate of 10% on the principal amount. The appellate court also found that there was no privity of contract between the 2nd respondent and the applicant and proceeded to set aside the liability entered by the High Court against the 2nd respondent; and
7.
Taking into account the applicant’s submissions challenging those conclusions, particularly the part of the judgment awarding interest of 10% based on the treasury bonds rates for the year 2003 when there was no evidence from either party of this fact; that in so holding the appellate court ignored the fact that the amount for investment was a whooping Kshs 91.5 million held by the 1st respondent for a whole four-year period; and that the determination by the appellate court amounted to a travesty of justice; and
8.
Further, considering the argument that by condemning the applicant to bear his own costs both in the High Court and Court of Appeal without giving a reason for overburdening him with costs, the appellate court violated the applicant’s constitutional right under articles 50(1), 48, 10 and 25; and that all the aforementioned questions meet the test of general public importance as set out in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, SC Application No 4 of 2012; [2013] eKLR as being questions bearing on the proper conduct of the administration of justice; and
9.
Upon considering the 1st respondent’s replying affidavit sworn on July 7, 2023 by Jimnah Mbaru, the Director of the 1st respondent and its submissions dated July 10, 2023 wherein the 1st respondent opposes the application for reasons that: the application does not raise any points of law that have a bearing on general public interest that deserve consideration by the Supreme Court; that the issues to be canvassed in the intended appeal are private, contractual and only affect the rights of parties to this particular dispute; that on the face of the application, the first ground concerns the percentage of interest which the applicant contends the Court of Appeal got wrong, and for which the proper course would be to go back to that court with application for review; that the issue of the duration of the contract, whether one year or four years is one of fact and concerns interpretation of a written contract between the parties which, in terms of this court’s declaration in Hermanus (supra) cannot be a basis for granting certification; that similarly the question of award of costs and interest does not warrant certification as the legal principles on award of interests and costs are well settled; and finally, that based on the foregoing, the application cannot be said to raise novel constitutional issues regarding violation of articles 50(1), 48, 10 and 25 when such issues were not pleaded, canvassed or determined in both superior courts below and therefore cannot be made a ground for argument before this court; and
10.
Noting that the Court of Appeal in the first instance dismissed the application for certification for the reasons that the issues raised by the applicant do not transcend the applicant’s personal interests; and that they are by their very nature, ordinary issues that do not rise beyond the business relationship between the applicant and 1st respondent. Moreover, no novel issues of law or uncertainty in the law exists to warrant the Supreme Court pronouncement. In totality, the court held that there would be no jurisprudential value in the Supreme Court engaging in the determination of issues raised in this application outside its jurisdiction; and
Having considered the application, affidavits, and rival arguments by both parties, we now opine as follows:
11.
Bearing in mind the well-settled principles for the grant of certification enunciated in a long line of our decisions, starting with the now famous case of Hermanus (supra), cited by both sides and the Court of Appeal in its ruling giving rise to the present application; that an intending appellant must demonstrate the following to warrant certification: that the issue to be canvassed transcends the circumstances of the particular case and has a significant bearing on public interest; that the appeal raises a substantial point of law the determination of which will have a significant bearing on public interest; that the question for determination has risen through the judicial hierarchy and has been the subject of judicial determination; and that there has been uncertainty in the law which requires resolution. Moreover, it was underscored in Hermanus (supra) that the mere apprehension of a miscarriage of justice and determinations of fact in contests between parties are not, by themselves, a basis for granting certification to appeal to the Supreme Court.
12.
Having examined the judgments of both the High Court and the Court of Appeal, we note that the applicant’s grievance flows from a business relationship with the 1st respondent, signified by a written agreement. Specifically, the applicant wishes to challenge the quantum of damages assessed and the 10% interest applied thereon by the Court of Appeal on the basis of one year instead of four years. The applicant is also dissatisfied with the exoneration by the Court of Appeal of the 2nd respondent from liability on account of lack of privity of contract; and finally, that in error the Court of Appeal condemned the applicant to bear his own costs both in the High Court and Court of Appeal without giving reasons.
13.
Upon our own independent assessment of these grounds, we find that they all relate to private matters based purely and dependent solely on the construction of the terms of a written contract between the applicant and 1st respondent. None of the matters sought to be raised in the intended appeal transcends the interests of the parties herein. The determination of any or all of these issues will not affect any other group of persons or the public in general. In addition, these grounds entail determinations of facts by construing the terms and conditions of a contract between the applicant and the 1st respondent.
14.
In view of the many decisions of this court on the proper invocation of its jurisdiction in terms of article 163(4)(b) of the Constitution, we reiterate and remind parties and counsel that before taking out an originating motion for certification or review, the foregoing principles must be satisfied in terms of this court’s pronouncement in the following decisions; Lawrence Nduttu & 6000 others v Kenya Breweries Ltd and Another SC Petition No 3 of 2012;[2012] eKLR , Hermanus (supra), Malcolm Bell v Daniel Toroitich Arap Moi & another SC Application No 1 of 2013; [2013] eKLR and Town Council of Awendo v Nelson Oduor Onyango & 13 others SC Misc Application No 49 of 2014; [2015] eKLR, among many others.
15.
Consequently, and for the reasons given, we find no merit in the motion and see no justification in disagreeing with the conclusion reached by the Court of Appeal, that the application has not passed the threshold for the grant of leave to appeal to this court pursuant to article 163(4)(b) of the Constitution.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/87/eng@2023-10-06
Civil Application E019 of 2023,Mbugua & another (Suing as the Administrators of the Estate of Joseph Kiarie Mbugua & another) v Timber Manufacturers & Dealers Limited (Civil Application E019 of 2023) [2023] KESC 86 (KLR) (6 October 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",6 October 2023,2023.0,Nairobi,Civil,Mbugua & another,[2023] KESC 86 (KLR)               ,,"Brief facts
The applicants were aggrieved by the Court of Appeal’s decision in Nairobi Civil Appeal No. 21 of 2015 as consolidated with Nairobi Civil Appeal No. 180 of 2015. They filed two notices of appeal for each of the consolidated matters before the Supreme Court pending the determination of their application to certify the appeal as one of general importance. They argued that the two court orders issued by a single judge of the Supreme Court that marked the aforementioned notices of appeal as withdrawn was an apparent error on the face of the record, since time for filing their intended appeal before the Supreme Court had not started running as their certification application was still pending.
Issues
Whether it was mandatory for appellants before the Supreme Court to obtain certification of a matter as one of general importance before filing a notice of appeal. 
Whether in an application for review of the Supreme Court’s decision, one could apply for correction of an error on the face of the record.
What were the circumstances under which the Supreme Court could review its own decision?",".
Upon perusing the notice of motion by the applicants dated June 8, 2023, and filed on July 6, 2023, pursuant to article 159 of the Constitution of Kenya, 2010; sections 3 and 21(4) of the Supreme Court Act, 2011; rule 28(5) of the Supreme Court Rules, 2020 and all other enabling provisions of the law seeking orders:
1.
That this honourable court be pleased to review, vary and/or set aside the court orders issued by Hon Lenaola, SCJ on May 26, 2023 marking the 2 notices of appeal dated October 7, 2019 and filed on October 11, 2019 in respect of the intended appeals from Nairobi Court of Appeal Civil Appeal No. 21 of 2015 as consolidated with Nairobi Court of Appeal Civil Appeal No. 180 of 2015, as withdrawn on account of failure to institute the appeal within the prescribed time.
2.
That this honourable court be pleased to make any further orders as it deems fit in the circumstances to meet the ends of justice.
2.
Upon perusing the grounds on the face of the application and the supporting affidavit sworn on June 8, 2023, by Lawrence M Mbabu wherein the applicants contend that aggrieved by the Court of Appeal’s decision in Nairobi Civil Appeal No 21 of 2015 as consolidated with Nairobi Civil Appeal No 180 of 2015 delivered on September 27, 2019, the applicants filed two Notices of Appeal for each of the consolidated matters, both dated October 7, 2019 and filed on October 11, 2019, before this court pending the determination of their certification application before the Court of Appeal in Nairobi Court of Appeal Civil Application Sup 13 of 2020. Therefore, they argue that the two court orders issued by Hon Justice Lenaola, SCJ on May 26, 2023, marking the aforementioned Notices of Appeal as withdrawn is an apparent error on the face of the record, since time for filing their intended appeal before this court has not started running as their certification application is still pending; and
3.
Upon considering the applicants’ submissions dated June 8, 2023, and filed on July 6, 2023, the applicants submit that: the import of section 21(4) of the Supreme Court Act, 2011 as explained in this court’s decision in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others SC Petition No 6 of 2014; [2017] eKLR assert that the error committed by the Honourable Judge falls within the purview of the exceptional circumstance alluded to under rule 28(5) of the Supreme Court Rules, for the reasons that the honourable judge was under the mistaken belief that the appeal was as of right or had already been granted certification and as a result, the applicants had failed to file their requisite appeal within 30 days of filing the Notices of Appeal or grant of certification under rule 38(1)(a) or (b) of the Supreme Court Rules, 2020 respectively; accordingly, failure to set aside the court orders issued on May 26, 2023 due to the error committed will occasion the applicants great injustice; and
4.
Cognizant that vide a consent signed by the parties’ advocates dated August 29, 2023, the respondent herein is not opposed to the application; and
5.
Taking into account provisions of section 21 of the Supreme Court Act, rule 28(5) of the Supreme Court Rules, 2020 as well as this court’s decision in Fredrick Otieno Outa case, we have considered the totality of the application and now opine as follows:
i.
Rule 36(1) of the Supreme Court Rules 2020 provides that “a person who intends to appeal to the court shall file a notice of appeal within fourteen (14) days from the date of judgment or ruling which is the subject of appeal.” However, rule 36(4) states that “in lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.” We have previously emphasized in Arvind Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others; SC Application No 3 (E008) of 2022 that rule 36(4) makes it optional to file a notice of appeal either before or after certification in a matter of general public importance.
ii.
Turning to the instant matter, the applicants, aggrieved by the decision of the appellate court in Nairobi Civil Appeal No 21 of 2015 as consolidated with Nairobi Civil Appeal No 180 of 2015 delivered on September 27, 2019, filed two notices of appeal before this court on October 11, 2019, within the 14-day timeframe. According to rule 38(1) of the Supreme Court Rules, an appeal should be filed within thirty days of the date of filing the notice of appeal, where the appeal is as of right; or thirty days after the grant of certification, where such certification is required. It is manifest that no appeal was filed within 30 days of filing of the notice of appeal or any indication that the applicants had filed an application for certification of matters as involving general public importance or that such an application was pending before the Court of Appeal, or at all.
iii.
On that account, is there an apparent error on the face of the record in the issuance of the court orders on May 26, 2023 by the honorable judge? Hardly. There is nothing on record to show that, at the time the orders were issued on May 26, 2023, almost four years after the notices of appeal were filed, there was a pending application for certification before the Court of Appeal. Rule 46(1) of the Supreme Court Rules empowers the court, on its own motion or on application by any party, to make such orders as may be necessary in instances where a party lodges a notice of appeal but fails to institute the appeal within the prescribed time.
iv.
In invoking section 21(4) of the Supreme Court Act and rule 28(5) of the Supreme Court Rules the applicants seek to move the court to exercise two distinct jurisdictional powers: correcting an oversight or clerical error, and review its own decision. In the Fredrick Otieno Outa case we accentuated our position as follows:
“[85] This section as quoted, embodies what is ordinarily referred to as the “Slip Rule”. By its nature, the Slip Rule permits acourt of law to correct errors that are apparent on the face of the judgment, ruling, or order of the court. Such errors must be so obvious that their correction cannot generate any controversy, regarding the Judgment or decision of the court. By the same token, such errors must be of such nature that their correction would not change the substance of the Judgment or alter the clear intention of thecourt. In other words, the Slip Rule does not confer upon acourt, any jurisdiction or powers to sit on appeal over its own Judgment, or, to extensively review such Judgment as to substantially alter it ”
Correction of an apparent error on the face of the record, which is unavailable to the applicants, is distinct from a review.
v.
On the review relief as set out in the application before us, the principles in Fredrick Otieno Outa case now buttressed in section 21A of the Supreme Court Act highlight the exceptional circumstances in which this court may review its own decision as:
a.
Whether the judgment, ruling or order was obtained through fraud, deceit or misrepresentation of facts;
b.
Where the judgment, ruling or order is a nullity by virtue of being made by a court which was not competent;
c.
Where the court was misled into giving a judgment or order under the belief that the parties have consented; or
d.
Where the judgment, ruling or order was rendered on the basis of repealed law, or as a result of a deliberate concealment of a statutory provision.
vi.
From the foregoing, the applicants have not delineated under which of the mentioned circumstances they seek to review the orders of the court issued by a single judge. At any rate, this is a different jurisdiction from that granted under section 23 (2C) of the Supreme Court Act, which provides that:
“
A party aggrieved by the decision of a single judge or two judges may apply for review of the decision by five or more judges of the Court.”
vii.
In the end, we decline to exercise discretion in favour of the applicants as prayed. At all times, the applicants remain at liberty to approach the court under the relevant rule, if at all a determination is made on their alleged application for certification. On costs, award of the same is discretionary and follows the event as enunciated in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR. This application having been uncontested, no costs have been sought.
6.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/86/eng@2023-10-06
Application E022 of 2023,Mwambeja Ranching Company Limited & another v Kenya National Capital Corporation (Application E022 of 2023) [2023] KESC 88 (KLR) (Civ) (6 October 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",6 October 2023,2023.0,Nairobi,Civil,Mwambeja Ranching Company Limited & another v Kenya National Capital Corporation,[2023] KESC 88 (KLR)               ,,"Brief facts
The application sought the review of the ruling of the Court of Appeal denying certification of the intended appeal as one involving matters of general public importance and leave to amend the notice of appeal. The applicants urged that the intended appeal raised the following questions of general public importance; conflicting case law from the Court of Appeal as to whether the in duplum principle applied retrospectively; applicability of section 4(4) and 19 of the Limitation of Actions Act prescribing a 6-year limitation period on interest on a guaranteed debt or a consent amounting to a preliminary decree; whether a guarantor assumed primary liability for the entire debt contrary to the fixed sum expressed in the contract; whether it was a clog and fetter on the equity of redemption for a chargee to charge unconscionable interest; whether a chargee was a constructive trustee of surplus monies following sale of charged property; what interest, between court rates, the bank’s fixed deposit rates or commercial rates should be applied to surplus monies held in trust by a chargor who refused to account for and refund the excess. 
Issues
What were the requirements for a matter to be certified as being of general public importance? 
Whether opting for the review of a Court of Appeal decision amounted to forfeiting the right of appeal over the decision.","Upon perusing the applicants’ motion dated June 20, 2023 and filed on June 23, 2023, pursuant to article 163(4)(b) and (5) of the Constitution, sections 3A, 21, 15 and 15B of the Supreme Court Act, 2011 and rule 33(2) and (3) of the Supreme Court Rules, 2020 seeking: review of the ruling of the Court of Appeal (Omondi, Laibuta, Mumbi Ngugi, Mativo & Odunga, JJA) dated June 9, 2023 denying certification of the intended appeal as one involving matters of general public importance; certification of the intended appeal (against the judgment of the Court of Appeal (Koome (as she then was), Warsame & Kiage, JJA) delivered on August 6, 2019 in Civil Appeal No 30 of 2018, Mwambeja Ranching Company Limited v Kenya National Capital Corporation; and leave to amend the notice of appeal dated August 8, 2019, to replace Kenya National Capital Corporation with Project Advisory Services; and
2.
Upon considering the applicants’ grounds on the face of the application and affidavits in support both sworn by Harry Horn (Junior) and Allen Waiyaki Gichuhi, SC on June 20, 2023, wherein it is urged that the intended appeal raises the following questions of general public importance, reproduced thus: conflicting case law from the Court of Appeal as to whether the in duplum principle applies retrospectively; applicability of section 4(4) and 19 of the Limitation of Actions Act prescribing a 6-year limitation period on interest on a guaranteed debt or a consent amounting to a preliminary decree; whether a guarantor assumes primary liability for the entire debt contrary to the fixed sum expressed in the contract; whether it is a clog and fetter on the equity of redemption for a chargee to charge unconscionable interest; whether a chargee is a constructive trustee of surplus monies following sale of charged property; what interest, between court rates, the bank’s fixed deposit rates or commercial rates should be applied to surplus monies held in trust by a chargor who refuses to account for and refund the excess?; and
3.
Further considering the applicants’ submissions dated July 10, 2023 and filed on July 17, 2023, restating the grounds set out above and in addition, urging that the appellate court in its judgment dated August 6, 2019 misapplied the law, in holding that the cause of action relating to continuing securities never lapses. Moreover, that the court created confusion by finding that a guarantor’s liability is limited to a fixed sum, but refused to apply the aspect of time barred interest or the in duplum rule to ascertain the lawful debt due; Furthermore, that the case raises matters of general public importance requiring certainty of law. In support, the applicants cite the case of Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone SC Application No 4 of 2012; [2013] eKLR, to urge that the questions raised permeate the banking industry, affect a considerable number of persons, continually engage the workings of judicial organs and have a significant bearing on public interest. As pertains the prayer for leave to amend the notice of appeal, it is urged that this court has inherent jurisdiction to allow amendment of the notice of appeal dated August 8, 2019, as it shall not cause prejudice to the respondent; and
4.
Uponnoting the respondent’s grounds of opposition, submissions and list of authorities, all dated July 27, 2023 and filed on even date wherein it is urged that the applicant have not established any basis for review under article 163(5) of the Constitution; that they are agitating narrow private interests relating to their adjudged contractual liability to the respondent, hence conclusions drawn by the superior courts below on matters of fact and interpretation of contractual documents, do not have any bearing on the public interest. To this end, the respondent cites this court’s ruling in National Bank of Kenya Limited v Basil Criticos SC Application No 14 (E023) of 2022; [2023] eKLR. Additionally, it is urged that the in duplum principle under section 44A of the Banking Act has clear provisions as to its application, raising no novelty requiring this Court’s determination; and that the applicants have not anchored the prayer on amendment of the notice of appeal on any enabling provisions of law; and
5.
Noting that before the Court of Appeal, the applicants filed a composite application seeking leave to amend the notice of appeal; review of the Judgment of the Court of Appeal (Koome, Warsame & Kiage, JJA), delivered on August 6, 2019; and certification of its intended appeal in the alternative, in effect pursuing the appellate court’s jurisdiction of appeal and review simultaneously. Further noting that the Court of Appeal declined the prayer for review as grievances raised by the applicant were principally grounds of appeal, the consideration of which would amount to sitting on appeal over its own decision. Similarly, the Court of Appeal found that the certification application failed to meet the principles settled in Malcolm Bell v Hon Daniel Toroitich arap Moi & another SC Application No 1 of 2013; [2013] eKLR. Furthermore, the appellate court stated that it was functus officio as jurisdiction to grant leave to amend a notice of appeal regularly filed against the decision of the court lay with the Supreme Court;
6.
Cognisant of the fact that this court has already established the basis upon which an intended appeal may be certified as one involving a matter of general public importance in Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone (supra); to the effect that;
'
…for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest…'
7.
We now opine as follows: -
i.
The motion lacks merit as the applicant has not satisfactorily highlighted any issues, the determination of which, would transcend the circumstances of the matter at hand so as to justify a review of the Court of Appeal’s ruling denying certification. Neither has the applicant raised any substantial question of law, the determination of which, would have a significant bearing on the public interest;
ii.
In any event, the applicant opted for review of the Court of Appeal’s judgment, in effect forfeiting his right of appeal at that instance;
iii.
Flowing from the above, this court therefore, has no jurisdiction to review certification of an intended appeal, where no right of appeal lies in the first instance;
iv.
Having found as above, the applicants’ prayer to amend the notice of appeal dated August 8, 2019 is moot.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/88/eng@2023-10-06
Petition (Application) E009 of 2023,Khan v International Commercial Company (K) Ltd (Petition (Application) E009 & E010 of 2023 (Consolidated)) [2023] KESC 84 (KLR) (3 October 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"SC Wanjala,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",3 October 2023,2023.0,Nairobi,Civil,Khan v International Commercial Company,[2023] KESC 84 (KLR)               ,,"Brief facts
The instant matter was mentioned on September 22, 2023 before the Deputy Registrar of the Supreme Court for compliance and was subsequently set down for hearing on October 5, 2023, for determination of all the questions raised in the appeal. One week before the hearing, the applicant sought orders setting aside the decisions by the Court of Appeal in Civil Appeals No. 63 and 124 of 2018, as well as the directions issued by the Employment and Labour Relations Court on December 1, 2017. 
Issues
Under what circumstances would the Supreme Court issue an order staying proceedings?
Whether the Supreme Court could issue an order staying proceedings where the substance of the appeal was before the court for determination. ","Upon perusing the notice of motion dated June 29, 2023 and filed on July 3, 2023 by Abdi Ahmed Abdi, the 1st respondent/applicant under the provisions of articles 50(1), 159 and 163(7) of the Constitution, sections 3, 21 and 21A of the Supreme Court Act and rule 28(5) of the Supreme Court Rules seeking Orders;
1.
That this honourable court be pleased to review, vary and set aside the judgment and order of this court delivered on June 16, 2023;
2.
That this court be pleased to dismiss with costs the Petition dated December 16, 2020 and filed on December 21, 2020;
3.
In the alternative, a declaration does issue that;
a.
Abdisamit location is in Dertu Division in Daadab Constituency within Garissa County.
b.
Auliya Sub-location is in Dertu Location in Dertu Division in Daadab Constituency in Garissa County.
c.
Laago Sub-location is in Alango Arba Location in Dertu Division/Ward in Daadab Constituency in Garissa County.
4.
The costs of this application and interest thereon be provided for.
5.
Any other and further relief that this honourable court may deem fit and just to grant in the circumstances of this case; and
2.
Upon also considering the grounds in support of the application for review and the grounds in the supporting affidavit by the applicant sworn on June 29, 2023 as well as the applicant’s written submissions dated and filed on July 3, 2023 wherein the applicant claims that the judgment rendered on June 16, 2023 was made based on misrepresentation of the geographical location of the impugned location and sublocations; that there exist meritorious, exceptional and public interest circumstances that warrant this court to review its determination of June 16, 2023; and that in the absence of an express order of this Court as to the exact location of the impugned location and sub-locations, confusion lingers amongst the residents of Daadab Constituency and Balambala Constituency; that this court has jurisdiction to review its judgment; and that the applicant has met the requirements set out under section 21A of the Supreme Court Act as well as rule 28(5) of the Supreme Court Rules; and
3.
Further considering the appellant’s grounds of opposition dated July 27, 2023 opposing the application on the grounds that it is an attempt by the applicant to relitigate the appeal; that the application does not meet the standard for review of judgment; that the application is an abuse of the court process; and that the applicant is seeking to introduce grounds and prayers that were never the subject of litigation before the superior courts, hence not a ground for review before this court; and
4.
Also noting the appellant’s written submissions dated July 10, 2023 and filed on July 11, 2023 wherein the appellant denies that the judgment was obtained through misrepresentation of facts; that the applicant is seeking an opportunity to relitigate or reopen the matter; that the applicant is asking this court to issue new prayers despite his appeal having been concluded; and that this court lacks original jurisdiction to handle this application as it is functus officio, having rendered its judgment; and
5.
Further considering the 5th respondents’ grounds of opposition and written submissions dated July 11, 2023 and filed on July 14, 2023 where the application is opposed on grounds that the application has failed to meet the threshold set out in Section 21A of the Supreme Court Act and rule 28(5) of the Supreme Court Rules; that the application is vexatious as it seeks to re-litigate issues after a judgment has been rendered; that the mere dissatisfaction of a party with the court’s judgment is not a ground to invoke this court’s power to review its judgment; that this court is functus officio; that the application is akin to a second appeal and the court lacks jurisdiction to entertain it while relying on this court’s decision in Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others; SC Petition No 6 of 2014;[2017] eKLR ; and
6.
Noting the written submissions by the 6th respondent dated August 4, 2023 and filed on August 8, 2023, supporting the application by submitting that first, this court has jurisdiction to review this application under rule 28(5) of this court’s rules and the finding by this Court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate & 4 others [2013] eKLR and Fredrick Otieno Outa v Jared Odoyo Okello & 3 others that set out the guiding principles to be considered by the Supreme Court while determining review of its decisions; that the applicant has demonstrated exceptional circumstances that warrant review as a matter of public interest and sufficient grounds laid out warranting such review; and
7.
Also noting the grounds of opposition and the written submissions by the 8th respondent opposing the application on grounds that the application falls short of the threshold set out in Fredrick Otieno Outa -v- Jared Odoyo Okello & 3 others; that the application fails to show how the Supreme Court made a glaring omission, patent mistake or grave error; that the application violates the principle that litigation must come to an end and; that the application is an attempt to appeal the matter.
We Now Opine as follows:
i.
This Court set out its power to review its own decision in the Fredrick Otieno Outa decision where we held that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor review its own decisions, other than in the manner contemplated by section 21(4) of the Supreme Court Act. We however did set out that in exercise of its inherent powers, the court, may upon application by a party or on its own motion, review, any of its Judgments, rulings, or orders, in exceptional circumstances, so as to meet the ends of justice. such exceptional circumstances in which the court can vary any of its judgments, rulings, or orders are limited to instances where:
i.
The judgment, ruling, or order, is obtained, by fraud or deceit;
ii.
The judgment, ruling, or order, is a nullity, such as, when the court itself was not competent;
iii.
The court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
iv.
The judgment or ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.
ii.
Having considered the notice of motion, its grounds in support, and the applicant’s submissions, we fail to see how the conditions set out in Fredrick Otieno Outa decision have judgment delivered on June 16, 2023 that he seeks to have impugned meets the exceptional circumstances reiterated above. Ground 3 of the motion speaks for itself-a whole new cause of action has been introduced at this late hour. Review can never issue in such circumstances. No other ground reproduced above also meets the Outa threshold.
iii.
Instead, the applicant has disguised his application as a review one but it is in fact an appeal, seeking to restate and re-argue the appeal and reopen matters already determined with finality, while asking the court to grant orders to that effect. The court in Fredrick Otieno Outa specifically warned on this when it held:
'
We have unambiguously held, that an application for review, is not meant to afford the losing party, an opportunity to re-litigate or re-open a matter merely because such party is unhappy with the outcome.'
iv.
It is therefore disconcerting that the applicant is asking this court to relitigate issues already determined with finality and issue declarations to that effect. It needs restating that this court lacks jurisdiction to entertain a second appeal over its own judgment. As we did state in Fredrick Otieno Outa, once the court has determined an appeal from the Court of Appeal, it becomes functus officio, and such a judgment stands until it is departed from in a future case or reviewed with the exceptional circumstances outlined earlier. Consequently, we find that this application lacks merit as no such grounds for review have been established and is therefore for dismissal.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/84/eng@2023-10-03
Application E014 of 2023,Amollo v Wilson (Application E014 of 2023) [2023] KESC 77 (KLR) (Civ) (22 September 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",22 September 2023,2023.0,Nairobi,Civil,Amollo v Wilson,[2023] KESC 77 (KLR)               ,,"Brief facts
The applicant received an adverse judgment at the Environment and Land Court and sought to get a stay of the decision at the Court of Appeal. A single judge bench of the Court of Appeal, dismissed his application for stay. Further aggrieved the applicant approached the Supreme Court with an application that sought leave to appeal the decision of the Court of Appeal. The applicant sought leave in two respects. The first leave was towards the appeal to the Supreme Court and the second leave was towards the appeal to the Court of Appeal. The latter leave was sought alongside stay of execution of the decision of the Environment and Land Court.
Issues
Whether the Supreme Court had the jurisdiction to determine an application for certification for leave to appeal to the Supreme Court where it had not been lodged and determined by the Court of Appeal.
Whether the Civil Procedure Act and its rules were applicable to the Supreme Court.","Upon perusing the notice of motion application dated March 30, 2023 and filed on May 16, 2023 pursuant to section 3A of the Civil Procedure Act, sections 15, 16, 17, 20 of the Supreme Court Act, articles 28, 40, 48, 50(1) and 159(1)(d) of the Constitution, in which the applicant seeks leave to file an appeal against the ruling of Murgor, JA dismissing her application for extension of time to lodge an appeal to the Court of Appeal, and stay of execution of the judgment of the Environment and Land Court; and
2.
Upon perusing the grounds on the face of the application and the affidavit in support thereof sworn by Dola Indidis, Advocate, on March 30, 2023 in which the applicant contends that: it is in the interest of justice that leave be granted to allow the applicant to appeal; the appeal has high chances of success; and that the application has been brought without inordinate delay; and
3.
Upon further perusing the applicant’s submissions dated March 30, 2023 and filed on May 16, 2023 wherein the applicant contends that: her vital witness was prevented from testifying in ELC Case No 667 of 2013 on July 21, 2021; Hon. Justice B.M. Eboso took the file with him to his new station in Thika and delivered the judgment while an application to appeal against the ruling dated July 21, 2021 that closed her case was still pending; the delay to file the appeal was inadvertent and was cured by the certificate of delay; the applicant is the registered owner of the suit property since 1/11/1987 and relies on it for rental income; the application ought to be allowed for the case to be heard wholesomely including the vital evidence locked out; she was denied justice on technicalities; the respondent did not oppose the impugned appeal to the Court of Appeal; and that granting the prayers sought will not prejudice the respondent; and
4.
Considering the respondent’s grounds of opposition dated August 9, 2023 filed in response to the application and his submissions dated August 15, 2023 where he contends that: the jurisdiction of the Supreme Court has not been properly invoked to warrant hearing of this appeal or application under article 163(4) of the Constitution; the application lacks foundation and is irregularly filed as the appellant has neither filed a notice of appeal as required by law nor sought extension of time to file the appeal out of time; and that the applicant is guilty of laches and is underserving of the discretion of the court; and
5.
Further considering the respondent’s submissions where he relies on this court’s decision in Wanjigi v Chebukati & 2 others SC Petition 19 (E022) of 2022 [2023] eKLR where the court stated that its appellate jurisdiction is set out in article 163(4), and under article 163(4)(a) of the Constitution, only issues involving interpretation or application of the Constitution may be considered by the court and that mere allegation by a party that a question of constitutional interpretation or application was involved, does not automatically bring the appeal within the ambit of article 163(4)(a) of the Constitution; and
6.
Upon further perusing the applicant’s submissions dated August 19, 2023 as a rejoinder to the respondent’s grounds of opposition, where she contends that the objection is an issue of procedural technicality which falls within the ambit of article 159(1)(d) of the Constitution; the court ought not to be tied by procedural technicalities; the authority relied on by the applicant is not relevant to the instant application; and the respondent’s averments are false, as it filed its notice of appeal dated March 30, 2023; and
7.
Bearing In Mind this court’s jurisdiction under article 163(4)(a) and
(b)
of the Constitution, as read with section 15, 15A and 15B of the Supreme Court Act, to hear appeals from the Court of Appeal on matters relating to the interpretation and application of the Constitution and those involving matters of general public importance upon certification;
8.
We Have considered the application, affidavit, grounds of opposition, and submissions filed and now opine as follows:
i.
From our understanding of the application, the applicant’s grievance is against the decision of a single Judge of the Court of Appeal (Murgor JA) wherein she declined to grant leave to the applicant to file the Notice of Appeal out of time and stay of execution, arising out of the judgment of the Environment and Land Court. We note that the applicant did not resort to rule 57(1)(b) of the Court of Appeal Rules 2022 by filing a reference to the full bench of the Court of Appeal to vary, discharge or reverse the said decision of the single Judge of the Court of Appeal. Thus, the applicant’s prayer for leave to appeal against this dismissal, does not at the first instance, fall for our determination.
ii.
The applicant has invoked the provisions of section 3A of the Civil Procedure Act, which provisions we held in Daniel Kimani Njihia v Francis Mwangi Kimani & another [2015] eKLR and County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, to be inapplicable when moving this court. The Supreme Court is only moved under the Constitution, the Supreme Court Act, and the Supreme Court Rules 2020.
iii.
The appellate jurisdiction of this Court to hear appeals from the Court of Appeal is exercised pursuant to article 163(4)(a) or (b) of the Constitution as read together with Sections 15, 15A and 15B of the Supreme Court Act. These provisions grant this court jurisdiction to hear appeals from the Court of Appeal on matters relating to the interpretation and application of the Constitution and those involving matters certified as involving general public importance.
iv.
The application does not indicate which appellate jurisdiction of the court it seeks to invoke. A perusal of the orders sought by the applicant suggests that the applicant seeks leave in two respects. The first leave is towards the appeal to the Supreme Court and the second leave is towards the appeal to the Court of Appeal. The latter leave is sought alongside stay of execution of the decision of the Environment and Land Court. To the extent that the applicant seeks leave under section 15B(2) of the Supreme Court Act, a certification for leave to appeal to the Supreme Court on a matter involving general public importance shall only be made first at the Court of Appeal, and a party dissatisfied with the Court of Appeal decision may apply to this Court for review. See Sum Model Industries Ltd v Industrial and Commercial Development Corporation, Civil Application No 1 of 2011; [2011] eKLR. The application has not distilled and framed any specific questions that transcend the parties as to be certified as involving general public importance as set out in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, Sup Ct Appl No 4 of 2012 [2013] eKLR. The applicant does not proffer any explanation or reasons for failure to adhere to this prerequisite step. We therefore see no reason to excuse this omission to enable us consider the prayer for leave.
v.
We note that the applicant is yet to file the substantive appeal as she only alluded to a draft Memorandum of Appeal as annexed to the affidavit in support of the application. The Supreme Court Act, and the Supreme Court Rules provide for the institution of an appeal to this court, including the form of the petition of appeal.
vi.
Pursuant to rule 36 of the Supreme Court Rules, a person intending to make an appeal to this court, shall file a notice of appeal within fourteen days from the date of judgment or ruling, and file it in the first instance with the Registrar of the court from which the appeal originates and upon filing, transmit a  of the notice to the Supreme Court registry. The notice of appeal annexed to the application, though indicated to have been filed on March 30, 2023 has not been signed and sealed by the Registrar of the Court of Appeal. There is no evidence of transmission of the same to the Supreme Court. That being said, the failure to file or transmit a notice of appeal is not mandatory in relation to an appeal on a matter of general public importance, and can as well be filed upon grant of certification. However, as already stated above, it is not indicated which of the court’s jurisdiction herein invoked.
For the reasons set out above, the jurisdiction of this court has not been properly invoked. As for costs, we see no reason to award costs to either party.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/77/eng@2023-09-22
Petition (Application) E013 of 2023,Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees & 3 others; Everest Limited & another (Interested Parties) (Petition (Application) E013 of 2023) [2023] KESC 76 (KLR) (22 September 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",22 September 2023,2023.0,Nairobi,Civil,Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees & 3 others; Everest Limited & another,[2023] KESC 76 (KLR)               ,,"Brief facts
The 1st respondent filed an application that sought to strike out the notice of appeal filed by the appellants on grounds that it was not served to the respondents within the 7-day period required under rule 37 of the Supreme Court Rules. The 1st respondent also sought to get the record of appeal struck out for being incomplete, in that it did not contain the record of appeal that was filed in the first appeal (Court of Appeal). 
The appellant opposed the application on grounds that  it was in the interest of justice that the Supreme Court exercised its discretion to admit the notice of appeal, petition, and the record of appeal, since no probable prejudice would be occasioned to the respondents; that the inadvertent omission of the supplementary record was not deliberate; and that the grounds of appeal before the Supreme Court were not dependent upon the omitted record since they did not center on a factual dispute but rather on the interpretation.
Issues
Whether a notice of appeal to the Supreme Court that was served on the respondents beyond the requisite seven-day timeline was defective.
Whether a record of appeal to the Supreme Court that did not contain a supplementary record that was filed in the first appeal before the Court of Appeal was incompetent.","Upon perusing the notice of motion dated June 23, 2023 and filed on even date by the 1st respondent, pursuant to section 3A, 21(1) and (2) of the Supreme Court Act but erroneously expressed as rules 31(6), (37(1), 40(1)(d), 65(1) and (2) of the Court of Appeal Rules instead of the Supreme Court Rules, seeking the striking out the notice of appeal dated March 23, 2023 and the Record of Appeal dated April 28, 2023; and
2.
Upon perusing the supporting affidavit sworn on 21st June 2023 by Richard Gitahi, the trust Secretary of the Safaricom Staff Pension Scheme Registered Trustees, the 1st respondent in support of the motion and a further affidavit sworn by Bernard Nderitu on July 25, 2023; and
3.
Upon considering the written submissions by the 1st respondent filed on June 23, 2023, wherein they argue the notice of appeal was not served upon them contrary to the mandatory requirement of rule 37(1) of the Supreme Court Rules; that this Court, in determining this application may be guided by the principles set out in Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others, SC PT (Application) No 38 of 2018; (2019) eKLR; Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others , SC Application No 7 of 2014; (2014) eKLR and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others, CA No (Application) 228 of 2013; (2013) eKLR, where this court and the Court of Appeal emphasized it is a jurisdictional prerequisite to file and serve the notice of appeal; that the record of appeal is incomplete in contravention of rule 40(1)(d) and (4) of the Supreme Court Rules since it does not include the supplementary record of appeal dated November 19, 2019 which was part of the record in the Court of Appeal, and the appellant has failed to apply for leave for their inclusion out of time; and that this omission is not only deliberate but also meant to deny the court the opportunity to have all the necessary relevant documents for a just and informed decision; and
4.
Noting that the appellant in its replying affidavit sworn by Otieno John Kenneth Rajwayi, their Planning Manager on July 10, 2023 and the written submissions of even date are opposed to the application on grounds that the underlying dispute herein was presented by the 1st respondent as a public interest litigation which fact was noted in the judgment of the trial court; that in compliance with rule 36(1) of the Supreme Court Rules, they filed a notice of appeal on March 30, 2023 but the Registrar of the Court of Appeal only endorsed his signature on the filed notice on April 27, 2023; that only then did the appellant transmit the endorsed notice of appeal together with the petition and record of appeal to this court on April 28, 2023 and thereafter service of the notice of appeal, petition of appeal and record of appeal was effected on May 4, 2023;
5.
Further, the appellant has pleaded that in the interest of justice, this court exercises its discretion to admit the notice of appeal, petition, and the record of appeal, since no probable prejudice will be occasioned to the respondents; that the inadvertent omission of the supplementary record of appeal in CA No 185 of 2017 was not deliberate; and that the truth of the matter is that the two grounds of appeal before this court are not dependent upon the omitted record since they do not centre on a factual dispute but rather on the interpretation.
6.
Upon considering the appellant’s reliance on the holding of this court in Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others (supra), and his argument that where no prejudice has been occasioned, the court ought to excuse noncompliance with a procedural rule; that equally, as this court held in following the holding of this court in Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others (supra), failure to include the supplementary record of appeal from the Court of Appeal as part of the record does not automatically render the appeal fatal; and
7.
Noting that the 2nd to 4th respondents as well as the 1st and 2nd interested parties did not file any pleadings with respect to this application;
We now therefore opine as follows:
8.
Uponexamining rule 36 of the Supreme Court Rules 2020, upon which this application rests, and which demands that;
“
(1)
A person who intends to make an appeal to the court shall file a notice of appeal within fourteen days from the date of judgment or ruling which is the subject of appeal.
2.
The notice of appeal shall be— (a) …………
(b)
filed at the first instance with the Registrar of the court, or with the tribunal from which an appeal originates.
2.
Upon filing of the notice of appeal, the petitioner shall transmit a  of the notice to the Registrar”. (Our emphasis).
The registrar in the highlighted section above is according to Rule 2, the Registrar of the Supreme Court; and
9.
Upon examination of rule 37(1) which provides that;
“
A petitioner shall, within seven days of lodging a notice of appeal, serve transmitted copies of the notice upon all persons directly affected by the appeal”. (Our emphasis).
It is the copies of the notice that the petitioner is required to transmit to the registrar of this court that are to be served upon all persons directly affected by the appeal; and
10.
Restating the principles enunciated by this court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Application No 16 of 2014; (2014) eKLR and University of Eldoret & another v Hosea Sitienei & 3 other, SC Application No 8 of 2020; (2020) eKLR, both of which underscored the vital nature of a notice of appeal as a jurisdictional pre-requisite whose filing signifies the intention to appeal; and further state that where the law provides for the time within which something ought to be done and that time lapses, one needs to first seek an extension of time before one can proceed to do that which the law requires; and
11.
Upon applying these strictures to the rival submissions in this application, we note that the notice of appeal dated March 23, 2023 was filed on the e-filing portal of the Court of Appeal on March 30, 2023and on April 28, 2023in this court and service of the same was effected on May 4, 2023, exactly thirty-five days from filing before the Court of Appeal; and
12.
Interms of rule 37, the appellant was required, within seven days of lodging a notice of appeal, to serve transmitted copies of the notice upon the respondents with or without the endorsement from the Registrar of the Court of Appeal as is the practice before this court; and
13.
Emphasising this court’s consistent pronouncement that rules of the court must be observed and the prescribed time limits are requirements to be met, we find that the appellant having failed to serve the notice within seven days as prescribed by the Rules missed a very crucial preliminary step in instituting the appeal. Rules of procedure must be applied and followed at all times by the parties, counsel, and even the courts to ensure there is fairness of proceedings and to afford parties the equality of arms. Because the object of judicial proceedings is to arrive at the truth by using the best available procedure and process, the infringement of the rules may have serious consequences; and
14.
Upon further examining rule 40 which stipulates what the contents of a record of appeal from the Court of Appeal must include, one of which is “relevant pleadings required to determine the appeal”; and looking at the nine documents which were introduced in the Court of Appeal by a supplementary record of appeal, there cannot be any doubt that they were presented before that court because the appellant believed they were important for the just determination of the first appeal. That being the case, by necessary implication, they would equally be relevant for the determination of this appeal; and
15.
Noting that the nine documents contained in the supplementary record are minutes, sketches, drawings, approvals, affidavits, and other pleadings from the Environment and Land Court, we find that the same ought to have been included in the record before this court; and ultimately the inevitable conclusion we must draw is that the notice of appeal dated March 23, 2023 is defective for failing to comply with rule 37(1) of the Supreme Court Rules; and further that the record of appeal lodged in this court is incomplete.
16.
Bearing in mind our finding above that there is no subsisting appeal having found the notice of appeal defective, we make the following orders:
i.
The notice of motion dated June 21, 2023 and filed on even date is hereby allowed.
ii.
Consequently, the notice of appeal dated March 23, 2023and the record of appeal dated April 28, 2023 are hereby struck out.
iii.
The 1st respondent shall have costs of this application noting that the other respondents did not file any pleadings in respect of the application.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/76/eng@2023-09-22
Application E028 of 2023,Garama v Karisa & 3 others (Application E028 of 2023) [2023] KESC 83 (KLR) (22 September 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",22 September 2023,2023.0,Nairobi,Election ,Garama v Karisa & 3 others,[2023] KESC 83 (KLR)               ,,"Brief facts
The application sought the stay of execution against the judgment and decree of the Court of Appeal delivered on the July 28, 2023 pending the final determination of the appeal and issuance of conservatory orders restraining the 1st respondent from certifying the position of the Member of National Assembly for Magarini Constituency as vacant, pending the hearing and determination of the appeal. The applicant contended that the Court of Appeal in dismissing his appeal and the 2nd and 3rd respondents’ cross appeal misinterpreted the provisions of articles 81 and 86 of the Constitution of Kenya, 2010 (the Constitution) by imposing on the 2nd respondent, the Independent Electoral and Boundaries Commission (IEBC) the burden of compliance which was not contemplated by articles 81 and 86.
The applicant further argued that the impugned decision was defective for affirming the nullification of the applicant’s victory despite finding that the irregularities were mostly minor and did not affect the outcome of the results. The applicant also urged that the judgment of the Court of Appeal created a vacancy, consequently the Speaker of the National Assembly was required to gazette the vacancy within 21 days of the decision to pave way for fresh elections, and in the event that fresh elections proceeded, there was a likelihood that the outcome of the appeal and the outcome of the fresh elections would be at variance, hence rendering the appeal an exercise in futility. The applicant further argued that should the court fail to grant stay and the IEBC proceed to trigger a by-election, the same would occasion the use of scarce public resources whose use would ultimately be in vain.
Issues
What were the requirements to be met before the Supreme Court could grant an order for stay of execution? 
",".
Upon perusing the notice of motion by the applicant dated August 1, 2023 and filed on August 8, 2023 pursuant to article 163(4)(a) of the Constitution and rule 31 and 32 of the Supreme Court Rules, 2020 seeking the following orders:
1.
Spent
2.
Spent.
3.
This court be pleased to issue a stay of execution against the judgment and decree delivered on the July 28, 2023 pending the final determination of the appeal.
4.
This court be pleased to issue conservatory orders restraining the 1st respondent from certifying the position of the Member of National Assembly for Magarini Constituency as vacant, pending the hearing and determination of the appeal.
5.
This court be pleased to issue conservatory orders restraining the 1st respondent from announcing or conducting the elections for Member of National Assembly in Magarini Constituency pending the hearing and determination of the appeal.
6.
Costs of this application be in the cause.
2.
Upon perusing the grounds on the face of the application, supporting affidavit sworn on August 1, 2023 by Hon Harrison Garama Kombe and written submissions dated August 1, 2023 and filed on August 8, 2023 wherein the applicant contends that on July 28, 2023, the Court of Appeal sitting in Mombasa delivered its judgment in Election Appeal No E001 of 2023 dismissing both the appeal lodged by the applicant and the cross appeal lodged by the 2nd and 3rd respondents; dissatisfied with the impugned judgment, the applicant has immediately preferred an appeal to this court and seeks stay of execution of the impugned judgment pending determination of his appeal; that the applicant’s appeal has been lodged in compliance with the court’s jurisdictional mandate under article 163 (4)(a) of the Constitution and as enunciated in the cases of Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another SC Pet No 3 of 2012 (2012) e KLR and Evans Kidero & 4 others v Ferdinand Waititu & 4 others; SC Petition 18 & 20 of 2014 [2014] e KLR as it seeks to challenge the superior court’s interpretation of the general principles of the electoral system under article 81(e) of the Constitution and the 2nd respondent’s obligation during voting under article 86 of the Constitution; that the main issue for determination by the two superior courts was centred around whether the election for the Member of National Assembly for Magarini Constituency was conducted in accordance with the principles set out in articles 81 and 86 of the Constitution. On whether the appeal is arguable and not frivolous, the applicant contends that the Court of Appeal misinterpreted the provisions of articles 81 and 86 of the Constitution by; imposing on the 2nd respondent the burden of compliance which is not contemplated by articles 81 and 86 of the Constitution since the court required that there be absolutely no errors, substantive or administrative, in order for an election to be said to have complied with article 81 of the Constitution by elevating explained human errors to the pinnacle of opaqueness and non- transparency that warrant the voiding of elections; by introducing a standard and burden of proof unknown in law when it held that the explained irregularities did not affect the results yet a holistic analysis at those irregularities would lead to only one conclusion, that it was a shambolic process; by finding that the explained errors in eight (8) polling stations warranted the nullification of elections in the entire 191 polling stations majority of which were not affected by the explained human errors and/or irregularities; and.
3.
Upon considering the applicant’s further argument that the impugned decision is defective; for affirming the nullification of the applicant’s victory despite finding that the irregularities were mostly minor and did not affect the outcome of the results and in doing so, abandoned the two part test established by section 83 of the Elections Act pursuant to articles 81 and 86 of the Constitution; for making findings that were factually inconsistent with the testimony and evidence placed before the High Court; and, the decision seeks to unjustifiably sanction the punishment of candidates who contest an election for any human errors made by the 2nd respondent ,which errors had no impact on the outcome of the election. Further, on whether the appeal would be rendered nugatory without the grant of stay, the applicant urges that the 2nd respondent is obliged by law to soon declare the impugned position as vacant, pursuant to section 16 of the Elections Act; the judgment of the superior court created a vacancy, consequently the Speaker of the National Assembly is required to gazette the vacancy within 21 days of the decision being July 28, 2023 to pave way for fresh elections, and in the event that fresh elections proceed, there is a likelihood that the outcome of the appeal and the outcome of the fresh elections will be at variance, hence rendering the appeal an exercise in futility and a waste of judicial resources.
4.
Finally, on whether it is in the public interest to grant the order of stay, the applicant contends that, should the court fail to grant stay and the 2nd respondent proceeds to trigger a by-election, the same will occasion the use of scarce public resources whose use will ultimately have been in vain. The applicant cites the decisions in Zacharia Okoth Obado vs Edward Akong’o Oyugi & 2 others; SC Petition 4 of 2014 [2014] e KLR and Anami Silverse Lisamula vs IEBC & 2 others; SC Petition 9 of 2014 [2014] e KLR to urge that the prevention of wastage of public resources is sufficient public interest and ground to grant a stay of execution. Furthermore, that it is in the interest of the constituents of Magarini that they continue to have representation in the National Assembly and continue to have the projects so far commenced by the applicant carried out as the apex court determines with finality the question of whether the election carried out on August 9, 2022 was conducted in accordance with the law. The applicant relies on the decision Nathif Jama Afam v Abdikhaim Osman Mohammed & 3 others; SC Petition 13 of 2014 [2014] e KLR to argue that the certainty in the representation of the citizens should be maintained until the final determination by the court; and
5.
Upon perusing the 1st respondent’s replying affidavit sworn on August 21, 2023 by Stanley Karisa and filed on August 22, 2023 and written submissions of even date opposing the application on the grounds that the court is not properly seized of this matter due to the applicant having filed two notices of appeal, the first dated July 31, 2023 by the firm of Messrs Mutisya Mwanzia & Ondeng Advocates and the second dated August 1, 2023 by the firm of Messrs Rachier & Omollo LLP, and with no application nor request to withdraw or strike out any of the two notices of appeal, the applicant has elected to rely only on the second notice of appeal; the two notices of appeal are in any event not valid notices contemplated under rule 36(1) of the Supreme Court Rules, 2020; contrary to the applicant’s contentions the constituents of Magarini Constituency would wish to have a Member of National Assembly who they elect by exercising their franchise freely and there is nothing prejudicial to the applicant seeking a fresh mandate in equal footing with other candidates; it would be unfair for the applicant to continue earning a salary and other emoluments if the court were to eventually confirm the superior court’s decision to annul the election of the applicant; there is nothing expensive in conducting a fresh election in comparison to denying the constituents of Magarini Constituency their democratic right to exercise and express their sovereign will to elect a person of their own choice as Member of National Assembly; prayers 4 and 5 sought against the 1st respondent are misconceived and unenforceable as he is not mandated by the Constitution or the Elections Act to conduct any election; the applicant has failed to demonstrate that he has an arguable appeal as there was no interpretation or application of the Constitution by either superior court save for mere references to relevant constitutional provisions; and
6.
Upon perusing the 2nd and 3rd respondent’s replying affidavit sworn on August 22, 2023 by Chrispine Owiye and filed on August 29, 2023 together with written submissions of even date in support of the application contending that the applicant has satisfied the guiding principles for this court to exercise its discretionary powers; that the applicant’s appeal raises issues of constitutional interpretation and application to fall within the ambit of article 163(4)(a) as it concerns interpretation of articles 81 and 86 of the Constitution together with section 82 of the Elections Act and part XIII of the Elections (General) Regulations, 2017. On whether the appeal before this court is arguable, it is contended that, as elaborated by the applicant, it is challenging the lowering of the threshold of the burden of proof set by the Supreme Court and which the Court of Appeal had not accommodated while interpreting article 81 of the Constitution; the test for nullification of an election is stipulated under section 83 of the Elections Act read alongside articles 81 and 86 of the Constitution that an election cannot be nullified other than on grounds of irregularities that substantially affect the results; that the elections of Magarini Constituency were conducted in accordance with the principles laid down in the Constitution and other statutory requirements and that the irregularities occasioned by the 2nd and 3rd respondents’ conduct were not of such magnitude to have affected the results of the elections and the will of the people so as to justify annulment of the election results. On whether the appeal would be rendered nugatory, it is argued that, if the orders sought are not granted, the election machinery will be set in motion forcing the applicant to seek re-election while at the same time pursuing his appeal; the applicant’s main objective in filing the application is to forestall a situation where he is forced to go through the rigours of an election when there is a possibility that his earlier election could be upheld by this court. On whether it is in the public interest that the orders of stay are granted, it is urged that the matter involves public interest issues which necessitates grant of orders that are for public good and will preserve public resources while also ensuring fidelity to the Constitution. It is also submitted that the 1st respondent had the onus of proving all the allegations that were raised before the trial court but has failed to plead with precision or adduce evidence to prove all the allegations before the trial court thus failing to discharge his burden as enshrined in articles 81 and 86 of the Constitution.
Having considered the totality of the application, responses and submissions put forth, we now pronounce as follows:
7.
Appreciating that the court, under section 23A of the Supreme Court Act has jurisdiction to issue an order for stay of execution, an injunction, a stay of further proceedings or any other conservatory or interim orders, on such terms as the court may deem fit.
8.
Considering this court’s finding on its jurisdiction to grant orders of stay of execution of decrees issued by superior courts in the case of Board of Governors, Moi High School, Kabarak & another v Malcolm Bell, Petition Nos 6 & 7 of 2013; [2013] eKLR and restating this court’s guiding principles on grant of stay of execution orders in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No 5 of 2014; [2014] eKLR that before this court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the court that;
i.
the appeal or intended appeal is arguable and not frivolous; and that
ii.
unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.
iii.
that it is in the public interest that the order of stay be granted.
9.
Noting that the gist of the appeal involves a determination of the proper interpretation of the provisions of articles 81 and 86 of the Constitution and section 83 of the Election Act on the two-prong test before nullification of elections to determine whether the election for the Member of National Assembly in Magarini Constituency was conducted in accordance with the principles and whether the irregularities by the 2nd and 3rd respondent were sufficient enough to nullify the elections. We further take cognizance that the applicant’s appeal also addresses the principles of the burden of proof to be applied in elections petitions. In our view, and in light of the facts and arguments here, we find that the appeal is arguable and not frivolous; and
10.
Further noting that the impending and imminent execution of the impugned decision of the Court of Appeal would constrain the applicant to seek re-election while at the same time pursuing his appeal with the possible consequence that the outcome of the appeal and the outcome of the fresh elections would be at variance, hence rendering the appeal an exercise in futility and a waste of judicial resources; and
11.
Bearing in mind that the competing claims in this matter lie in favour of public interest and good governance both running in tandem with the need to consciously deploy limited public resources. Put another way, our rational sense of balance and proportion lies not in favour of fresh elections for Magarini Constituency while an appeal is pending, rather it lies in favour of an expedited hearing of the appeal.
12.
On costs, award of the same is discretionary and follows the principle set out by this court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. On this account, it is only prudent that we defer the costs to await the ultimate outcome of the appeal
13.
For the aforestated reasons we make the following orders:
a.
The notice of motion dated August 1, 2023 and filed on August 8, 2023 by the applicant be and is hereby allowed.
b.
Execution of the judgment and order of the judgment of the Court of Appeal delivered on 28th July, be held in abeyance pending the final determination of the appeal.
c.
A conservatory order shall issue forth against the Independent Electoral and Boundaries Commission from declaring the position of Member of the National Assembly for Magarini Constituency as vacant, pending the hearing and determination of the appeal.
d.
A conservatory order issue restraining the Independent and Electoral Boundaries Commission from setting in motion the process of election for the position of Member of the National Assembly for Magarini Constituency pending the hearing and determination of the applicant’s appeal.
e.
The Registrar shall make due arrangements for the hearing and disposal of the appeal, on the basis of priority and of the greatest frequency.
f.
The costs of this application to abide the outcome of the appeal.
",Allowed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/83/eng@2023-09-22
Petition 21 (E023) of 2020,Member of Parliament Balambala Constituency v Abdi & 7 others (Petition 21 (E023) of 2020) [2023] KESC 80 (KLR) (22 September 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",22 September 2023,2023.0,Nairobi,Civil,Member of Parliament Balambala Constituency v Abdi & 7 others,[2023] KESC 80 (KLR)               ,,"Brief facts
The matter arose from a dispute of the division of 3 constituencies within Garissa County. The matter was resolved by the Supreme Court On June 16, 2023. The applicant was aggrieved by the findings of the court and filed the instant application for review in which he sought for the Supreme Court to vary the judgment or set it aside. 
The respondents opposed the application on grounds that the applicant was attempting to relitigate the matter. They contended that the applicant had not met the threshold for the Supreme Court to review its own decision. 
Issues
Under what circumstances would the Supreme Court review its own decisions?","
1.
Upon perusing the notice of motion dated June 29, 2023 and filed on July 3, 2023 by Abdi Ahmed Abdi, the 1st respondent/applicant under the provisions of articles 50(1), 159 and 163(7) of the Constitution, sections 3, 21 and 21A of the Supreme Court Act and rule 28(5) of the Supreme Court Rules seeking Orders;
1.
That this honourable court be pleased to review, vary and set aside the judgment and order of this court delivered on June 16, 2023;
2.
That this court be pleased to dismiss with costs the Petition dated December 16, 2020 and filed on December 21, 2020;
3.
In the alternative, a declaration does issue that;
a.
Abdisamit location is in Dertu Division in Daadab Constituency within Garissa County.
b.
Auliya Sub-location is in Dertu Location in Dertu Division in Daadab Constituency in Garissa County.
c.
Laago Sub-location is in Alango Arba Location in Dertu Division/Ward in Daadab Constituency in Garissa County.
4.
The costs of this application and interest thereon be provided for.
5.
Any other and further relief that this honourable court may deem fit and just to grant in the circumstances of this case; and
2.
Upon also considering the grounds in support of the application for review and the grounds in the supporting affidavit by the applicant sworn on June 29, 2023 as well as the applicant’s written submissions dated and filed on July 3, 2023 wherein the applicant claims that the judgment rendered on June 16, 2023 was made based on misrepresentation of the geographical location of the impugned location and sublocations; that there exist meritorious, exceptional and public interest circumstances that warrant this court to review its determination of June 16, 2023; and that in the absence of an express order of this Court as to the exact location of the impugned location and sub-locations, confusion lingers amongst the residents of Daadab Constituency and Balambala Constituency; that this court has jurisdiction to review its judgment; and that the applicant has met the requirements set out under section 21A of the Supreme Court Act as well as rule 28(5) of the Supreme Court Rules; and
3.
Further considering the appellant’s grounds of opposition dated July 27, 2023 opposing the application on the grounds that it is an attempt by the applicant to relitigate the appeal; that the application does not meet the standard for review of judgment; that the application is an abuse of the court process; and that the applicant is seeking to introduce grounds and prayers that were never the subject of litigation before the superior courts, hence not a ground for review before this court; and
4.
Also noting the appellant’s written submissions dated July 10, 2023 and filed on July 11, 2023 wherein the appellant denies that the judgment was obtained through misrepresentation of facts; that the applicant is seeking an opportunity to relitigate or reopen the matter; that the applicant is asking this court to issue new prayers despite his appeal having been concluded; and that this court lacks original jurisdiction to handle this application as it is functus officio, having rendered its judgment; and
5.
Further considering the 5th respondents’ grounds of opposition and written submissions dated July 11, 2023 and filed on July 14, 2023 where the application is opposed on grounds that the application has failed to meet the threshold set out in Section 21A of the Supreme Court Act and rule 28(5) of the Supreme Court Rules; that the application is vexatious as it seeks to re-litigate issues after a judgment has been rendered; that the mere dissatisfaction of a party with the court’s judgment is not a ground to invoke this court’s power to review its judgment; that this court is functus officio; that the application is akin to a second appeal and the court lacks jurisdiction to entertain it while relying on this court’s decision in Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others; SC Petition No 6 of 2014;[2017] eKLR ; and
6.
Noting the written submissions by the 6th respondent dated August 4, 2023 and filed on August 8, 2023, supporting the application by submitting that first, this court has jurisdiction to review this application under rule 28(5) of this court’s rules and the finding by this Court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate & 4 others [2013] eKLR and Fredrick Otieno Outa v Jared Odoyo Okello & 3 others that set out the guiding principles to be considered by the Supreme Court while determining review of its decisions; that the applicant has demonstrated exceptional circumstances that warrant review as a matter of public interest and sufficient grounds laid out warranting such review; and
7.
Also noting the grounds of opposition and the written submissions by the 8th respondent opposing the application on grounds that the application falls short of the threshold set out in Fredrick Otieno Outa -v- Jared Odoyo Okello & 3 others; that the application fails to show how the Supreme Court made a glaring omission, patent mistake or grave error; that the application violates the principle that litigation must come to an end and; that the application is an attempt to appeal the matter.
We Now Opine as follows:
i.
This Court set out its power to review its own decision in the Fredrick Otieno Outa decision where we held that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor review its own decisions, other than in the manner contemplated by section 21(4) of the Supreme Court Act. We however did set out that in exercise of its inherent powers, the court, may upon application by a party or on its own motion, review, any of its Judgments, rulings, or orders, in exceptional circumstances, so as to meet the ends of justice. such exceptional circumstances in which the court can vary any of its judgments, rulings, or orders are limited to instances where:
i.
The judgment, ruling, or order, is obtained, by fraud or deceit;
ii.
The judgment, ruling, or order, is a nullity, such as, when the court itself was not competent;
iii.
The court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
iv.
The judgment or ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.
ii.
Having considered the notice of motion, its grounds in support, and the applicant’s submissions, we fail to see how the conditions set out in Fredrick Otieno Outa decision have judgment delivered on June 16, 2023 that he seeks to have impugned meets the exceptional circumstances reiterated above. Ground 3 of the motion speaks for itself-a whole new cause of action has been introduced at this late hour. Review can never issue in such circumstances. No other ground reproduced above also meets the Outa threshold.
iii.
Instead, the applicant has disguised his application as a review one but it is in fact an appeal, seeking to restate and re-argue the appeal and reopen matters already determined with finality, while asking the court to grant orders to that effect. The court in Fredrick Otieno Outa specifically warned on this when it held:
'
We have unambiguously held, that an application for review, is not meant to afford the losing party, an opportunity to re-litigate or re-open a matter merely because such party is unhappy with the outcome.'
iv.
It is therefore disconcerting that the applicant is asking this court to relitigate issues already determined with finality and issue declarations to that effect. It needs restating that this court lacks jurisdiction to entertain a second appeal over its own judgment. As we did state in Fredrick Otieno Outa, once the court has determined an appeal from the Court of Appeal, it becomes functus officio, and such a judgment stands until it is departed from in a future case or reviewed with the exceptional circumstances outlined earlier. Consequently, we find that this application lacks merit as no such grounds for review have been established and is therefore for dismissal.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/80/eng@2023-09-22
Petition (Application) 16 of 2019,Non- Governmental Organizations Coordination Board v EG & 5 others (Petition (Application) 16 of 2019) [2023] KESC 78 (KLR) (22 September 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",22 September 2023,2023.0,Nairobi,Civil,Non- Governmental Organizations Coordination Board v EG & 5 others,[2023] KESC 78 (KLR)               ,,"Brief facts
The instant application sought among other orders; grant leave to the applicant and enlargement of time to file a reference against the decision of the registrar on taxation of costs dated June 9, 2023; that the reference filed be deemed as properly filed; and a stay of execution of the ruling and order of the Registrar of the court dated June 9, 2023 pending re-taxation of the bill of costs. 
The applicant contended that although the decision under challenge was delivered on June 9, 2023, the applicant only became aware of it on June 20, 2023 when it was served with the proclamation notice; that the applicant was unable to issue instructions to counsel on the filing of the reference application as its legal manager was indisposed and out of the office for the whole week and that upon the legal manager resuming work, the instant application was brought without undue delay.
Issues
What were the guiding principles in considering an application for extension of time? 
What was the procedure to be followed by a person who was dissatisfied with a decision of the Registrar of the Supreme Court in the taxing of costs? 
What were the principles for grant of stay of execution? ","Recalling that on June 27, 2023, this court (W. Ouko, SCJ) sitting as a single judge certified this matter as urgent and directed that it be placed before the Hon Vice President of the court for further orders; that subsequently, on June 29, 2023 the applicant filed a second certificate of urgency with affidavits in support to review those orders contending that there was a real threat of execution of orders arising from the taxation ruling of the Deputy Registrar issued on June 9, 2023. Consequent, upon considering the prevailing situation, the court granted on a temporary basis, prayer (iii) of the said motion, staying the execution commenced by the 1st respondent, and also restrained the 1st respondent and the auctioneers from selling, or disposing of any of the applicant's proclaimed property and/or household equipment pending the hearing and determination of the instant application.
2.
Now, therefore, upon considering the aforesaid notice of motion dated June 24, 2023 brought under article 159 and 163(4)(a) of the Constitution, sections 11, 23(2)(e) and 23 of the Supreme Court Act, 2011 as well as rules 15(2), 30 and 62 of the Supreme Court Rules, 2020 for orders:
i)
… (spent)
ii)
That this honourable court be pleased to grant leave to the applicant and enlarge time to file a reference against the decision of the registrar on taxation of costs dated June 9, 2023;
iii)
That the execution proceedings commenced by the 1st respondent/decree holder against the applicant/ judgment debtor be stayed and/or set aside including restraining the 1st respondent and Zasha Auctioneers, their agents and/or employees and/or any person acting under their instructions or directions from selling, dealing, interfering, alienating or disposing any of the applicant’s property and/household equipment pending hearing and determination of the present application;
iv)
That the reference filed herein be deemed as properly filed;
v)
That the court be pleased to issue a stay of execution of the ruling and order of the registrar of this court dated June 9, 2023 pending re-taxation of the bill of costs;
vi)
That the court be pleased to set aside or review downwards the decision made by the registrar of this court dated June 9, 2023 as relates to item 1 on instructions taxed at Kshs 5,000,000/-; and
vii)
Costs of this application be provided for; and
3.
Upon reading the applicant’s supporting affidavit sworn on June 24, 2023 by Lindon Otieno, the legal affairs manager of the applicant and their written submissions dated June 27, 2023 whose combined effect is that, although the decision under challenge was delivered on June 9, 2023, the applicant only became aware of it on June 20, 2023 when it was served with the proclamation notice; that upon receipt of the proclamation notice together with the ruling, the applicant was unable to issue instructions to counsel on the filing of the reference application as its legal manager was indisposed and out of the office for the whole week; that upon the legal manager resuming work, the instant application was brought without undue delay; and that the time taken between the deadline for filing the reference and the filing of the instant application was only 10 days; and
4.
Upon considering the application for stay of execution of the Hon Deputy Registrar’s ruling on taxation and an order of injunction against the attachment and sale of the applicant’s property, wherein, the applicant submits that the intended reference has a high chance of success; in that the Hon Deputy Registrar erred in failing to give consideration to the fact that the said bill of costs and decree were lodged and drawn contrary to rule 29 as well as paragraph 2(2) of the third schedule to the Supreme Court Rules 2020; and further, that no draft order or decree was submitted by the 1st respondent to the applicant for prior approval contrary to rule 29 aforesaid. Therefore, should the 1st respondent proceed to execute the order for costs made pursuant to the Deputy Registrar’s ruling, the subject matter will be lost, and the reference rendered nugatory; and
5.
Upon reading the applicant’s supplementary submissions dated July 24, 2023, wherein the applicant has deponed that it is facing imminent threat of execution and stands to suffer irreparable harm in the event the auctioneers proceed to sell and dispose of the proclaimed goods; that despite the instant application being certified as urgent by the court on June 27, 2023, on the morning of June 29, 2023, Zasha Auctioneers in the company of more than 50 men, proceeded to the applicant’s office premises and sought to attach with the intention of selling the applicant’s properties including the applicant’s tools necessary for the performance of its statutory obligation; that taking advantage of the presence of auctioneers in the applicant’s premises, the 1st respondent’s advocate used her influence to unduly coerce the applicant’s Executive Director into entering into a consent with it; that the applicant protested to the Registrar of the court and pointed out that the purported consent was obtained under duress, coercion, undue influence and without the authority or consent of the applicant’s board as well as without authority of the applicant’s counsel on record; and that the impugned consent does not settle the matter. The applicant finally submits that this being a public interest matter, the applicant has satisfied the principles in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others, SC application No 16 of 2014; [2014] eKLR for the grant of an order of extension of time and for an order of stay of execution; and
6.
Uponconsidering the 1st respondent’s replying affidavit sworn on July 7, 2023 by EG opposing the application and submissions dated July 11, 2023 to the effect that the application ought to be dismissed in its entirety on account of the consent dated June 29, 2023 entered into by the parties; that contrary to the applicant’s submissions, the applicant was at all times represented by the firm of Messrs Muma and Kanjama Advocates who were aware of the taxation ruling but failed to comply with the order of the court, thereby prompting the execution process; that as a matter of fact, on its own initiative, the applicant reached out to the 1st respondent’s counsel, Ms Ligunya, inviting her to a meeting on June 29, 2023 to enter into a consent for the settlement of the matter; that the consent was willingly and lawfully signed by the applicant’s Executive Director in the presence of the 1st respondent’s counsel on record upon refusal by the applicant’s counsel, Mr Kanjama, even after he was instructed by the applicant to execute the same; that the allegations of undue influence, duress and coercion, which have not been proved are merely a calculated move by the applicant to run away from its obligations after obtaining a favorable orders of stay on June 30, 2023; that the consent itself having preceded the orders of stay, the latter was of no effect having been overtaken by events; and that consequently the consent agreement settled the matter between the parties and there is nothing left for this court’s determination; and
7.
Further,noting the assertion by the 1st respondent that, the applicant is not deserving of the grant of orders for extension of time as it has at all times, through its conduct and that of its advocate, acted in a fraudulent and deceitful manner with the aim of defeating court orders; that it has failed to prove in a satisfactory manner the reasons for delay and in a casual manner attributed its failure to file the reference to the legal manager’s alleged illness; that no evidence had been tendered to suggest that the applicant’s advocates had communicated to the legal manager or to the applicant’s office of the court’s ruling; that in any event, the applicant has not rejected the decree as drawn by this court to hinge the same as a proper ground for review of the decision of the taxing master; that the application lacks merit and ought to be dismissed with costs; and that the court considers adopting the consent dated June 29, 2023 as entered into by the parties; and
8.
Having consideredthe application, affidavits and rival arguments by both parties, we now therefore opineas follows:
9.
The foregoing lengthy arguments, notwithstanding, we are only concerned in this ruling with two prayers; enlargement of time and stay of execution. This court, by the provisions of rule 15(5) of the Supreme Court Rules, 2020, has jurisdiction to extend the time limited by the rules. The guiding principles in considering an application for extension of time are well enunciated in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others, SC application No 16 of 2014; [2014] eKLR but bears repeating:
“
i)
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
ii)
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.
iii)
Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis.
iv)
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court.
v)
Whether there will be any prejudice suffered by the respondents if the extension is granted.
vi)
Whether the application has been brought without undue delay; and
v)
Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
10.
Applying these principles, we note from the record that the taxation ruling in question was delivered by email to the parties on June 9, 2023. Under rule 62(1) of the Supreme Court Rules, 2020, “A person who is dissatisfied with a decision of the Registrar in the taxing of costs may refer the matter, within seven days to a single judge for determination.” Consequently, the applicant was required to have lodged its reference by June 16, 2023. This was not done and the reason advanced by the applicant was that the applicant’s legal affairs manager was indisposed as a result of which he was unable to review the said ruling and give instructions to counsel on record for the applicant. To corroborate these assertions, the applicant has attached a sick off form dated June 12, 2023 in respect of Lindon Otieno, the applicant’s legal affairs manager, as an illustration that he was away from office for 5 days. Based on this averment and evidence, we hold the view that the reason for the delay is plausible and satisfactory, in addition to the fact that the instant motion was brought without undue delay and the respondents have not shown any prejudice they stand to suffer if time sought is granted.
11.
Considering the applicant’s second prayer for stay of execution of the order arising from the taxation ruling, this court has, under section 23A of the Supreme Court Act, jurisdiction to issue an order for stay of execution, an injunction, a stay of further proceedings or any other conservatory or interim orders, on such terms as the court may deem fit. The principles for grant of stay of execution as enunciated in Gatirau Peter Munya v Dickson Mwenda & 2 others, SC application No 5 of 2014; [2017] eKLR are, as it were, old hat. First, the applicant must satisfy the court that the appeal is arguable and is not frivolous; second, that unless the orders of stay are granted, the appeal will be rendered nugatory; and third, it is in the public interest that the order of stay be granted.
12.
Noting the appellant’s grievance with the Hon Deputy Registrar’s ruling that the bill of costs and decree were lodged and drawn contrary to rule 29 as well as paragraph 2(2) of the third schedule to the Supreme Court Rules, 2020 for the reason that the decree was neither drawn and certified nor was it lodged after making the order for costs; and that no draft order or decree was submitted by the 1st respondent to the applicant for approval. Besides these, both parties also have rival arguments regarding the validity of the consent agreement and whether it settled the matter between the parties. In our view, these issues which are to be raised in the intended reference are indeed arguable and not frivolous.
13.
Further noting that the impending and imminent threat of execution of the decree arising from the ruling will render the intended reference nugatory should the auctioneers proceed to sell and dispose of the proclaimed goods before the determination of the reference. Lastly, in view of the fact that the dispute involves a statutory body funded by public coffers, we are of the view that it is in public interest that the order of stay be granted pending the determination of the intended Reference. In the result, the strictures in section 23A of the Supreme Court Act and rule rule 15(5) of the Supreme Court Rules, 2020 together with the principles in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission (supra) and Gatirau Peter Munya v Dickson Mwenda & 2 others, have fully been met to warrant the granting of the two prayers.
14.
Cognizantthat, by the provisions of rule 62 of the Supreme Court Rules 2020, the jurisdiction to determine a reference on taxation is donated to a single judge as opposed to the full bench. Secondly, the applicant’s invitation of the court in this application to deem “the reference filed herein as properly filed” is untenable for a second reason. This court has laid the principle that once time is enlarged, the applicant must properly and formally lodge the document, serve it and pay fees for it. The court cannot sanitize by “deeming” documents irregularly lodged before granting leave. It is presumptive and inappropriate to file a document out of time and then seek the court to extend the time. See Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (supra) and Kenya Hotel Properties Limited v Attorney General & 5 others, SC application 2 of 2021; [2021] eKLR. The proper course is to file and serve the reference for consideration before a single judge.
15.
On costs, the award of the same is discretionary and follows the principle set out by this court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC petition No 4 of 2012; [2014] eKLR that costs follow the event. In exercise of our discretion, we defer the costs of this application to await the ultimate outcome of the reference on taxation.
16.
Accordingly, we make the following orders:
The applicant’s notice of motion dated June 24, 2023 be and is hereby allowed in the following terms:
i)
Leave be and is hereby granted to the applicant to file and serve the reference against the decision of the Deputy Registrar on taxation of costs dated June 9, 2023 within 7 days of delivery of this ruling.
ii)
An order staying the execution of the order of the Deputy Registrar of this court dated June 9, 2023 commenced by the 1st respondent, including an order restraining the 1st respondent and Zasha Auctioneers, their agents and/or employees, and/or any person acting under their instructions or directions from selling, dealing, interfering, alienating or disposing of any of the applicant’s property and/or household equipment be and is hereby issued pending the determination of the reference on taxation.
iii)
Costs of this application shall abide the outcome of the reference on taxation.
iv)
We direct that the file be placed before the Deputy Registrar of the court for the purposes of issuing directions on the filing of the reference on taxation and the subsequent exchange of submissions.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/78/eng@2023-09-22
Petition 6 of 2014,Outa v Odoto & 3 others (Petition 6 of 2014) [2023] KESC 75 (KLR) (22 September 2023) (Ruling),Ruling,Supreme Court,Supreme Court,W Ouko,22 September 2023,2023.0,Nairobi,Civil,Outa v Odoto & 3 others,[2023] KESC 75 (KLR)               ,,"Court Act and Rule 62 of the Supreme Court Rules 2020 in which the only relief now left is for the single Judge to consider reviewing the decision of the Deputy Registrar dated 9th June 2023 on the Bill of Costs with respect to items Nos. 1, 2, 3, 5, 13, 14, 19, 20, 25, 26, 35, 36,37 and 40 and;
2.
Bearing in mind that the taxation in dispute arises from an election petition in which Fredrick Otieno Outa, the appellant was found to have been properly elected Member of the Parliament for Nyando Constituency in the 2013 general elections, and the appellant’s costs in the High Court, Court of Appeal and the Supreme Court were to be borne by Jared Odoyo Okelo, the 1st respondent; and
3.
Upon perusing the three affidavits sworn by the 1st respondent on 16th June 2023, 3rd July 2023, and 7th July 2023 as well as the affidavit sworn by Bruce Odiwor Odeny on 3rd July 2023 in support of the Motion as well as the submissions and supplementary submissions by the 1st respondent filed on 22nd June 2023 and 4th July 2023, respectively, wherein he explains that the imminent execution will diminish his political career and cause him irreparable loss incapable of being compensated in monetary terms; that he had raised an objection to the Bill of Cost dated 20th August 2014, and sought for its dismissal because it was not served within the mandatory seven days as provided for under clause 2(1) of the Third Schedule of the Supreme Court Rules 2012; that the Deputy Registrar, however, noted that the Supreme Court Rules 2012 did not provide for any sanctions therein and in any event, the issue had been overtaken by events; that the Deputy Registrar deliberately failed to apply the sanctions under Rule 55(a) and (b); and
4.
Upon further considering the 1st respondent’s submissions to the effect that pertaining to item No. 1, the Deputy Registrar disregarded the ratio enunciated by the Court of Appeal sitting in Nyeri in Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 Others; CA No. 12 of 2018; [2018] eKLR to the effect that an award of costs is not a punishment or a deterrent measure to scare away litigants from the doors of justice; that the Deputy Registrar misdirected himself by failing to take into account all the conditions set out under clause 9(2) of the Third Schedule in awarding instruction fees; that with regard to item No. 2, the scale provides for Kshs. 1000; that with regard to items Nos. 3, 13, 14, 19, 20, 25, and 26, the advocate did not sign a certificate that the number of folios in respect of any item charged was correct and the Deputy Registrar confirmed the same and found 51 folios as opposed to 2671 folios but allowed the costs anyway; and that on item No. 5, the only air ticket produced had a figure of Kshs. 4,800 but the Deputy Registrar awarded Kshs. 12,460 instead; and
5.
Noting that the appellant in his preliminary objection, replying affidavit, and written submissions all filed on 3rd July 2023 is opposed to the application on grounds that counsel for the 1st respondent lacks audience before this Court for want of leave pursuant to Order 9 Rule 9 of the Civil Procedure Rules; that the 1st respondent has failed to demonstrate the conditions for grant of an order for stay pursuant to Order 42 Rule 6 of the Civil Procedure Rules; that Rule 55(a) and (b) is discretionary and the Deputy Registrar exercised this discretion judiciously in issuing directions with respect to the appellant’s Bill of Costs; that the notice of objection having been filed way after compliance of the said directions had been overtaken by events; that in any event, the 1st respondent was represented by counsel on 13th March 2023 and 11th April 2023 when the said directions were issued and failure by counsel on record to raise an objection on the said dates cannot be visited on the Deputy Registrar; and
6.
Further Noting the appellant’s argument that pursuant to clause 9(2) of the Third Schedule of the Supreme Court Rules 2012, the Deputy Registrar found that indeed the appeal raised complex questions of law and facts, taking into account that this was the second appeal before this Court following the promulgation of the Constitution in 2010 and a lot of research and industry was employed by the appellant’s team to ensure success, hence the instruction fees awarded by the Deputy Registrar was reasonable; that item No. 2 of the Bill of Costs was awarded according to scale in the Third Schedule to the Supreme Court Rules 2012, that is Kshs. 2000; that pertaining to item Nos. 3, 13, 14, 19, 20, 25, and 26, clause 3(2)(c) of the Third Schedule relied on by the 1st respondent, allows the Deputy Registrar to exercise discretion which discretion was duly and properly exercised.
In view of the foregoing, I, Now Therefore Opine As Follows:
7.
In the first place, the appellant filed his Bill of Costs on 21st August 2014. For some unknown reasons, it has taken more than 9 years and two election cycles for the Bill to be taxed. The second thing to note is that the appellant has in his arguments as reflected in paragraph 5 above, repeatedly referred to provisions of the Civil Procedure Rules for the arguments that counsel for the 1st respondent lacked audience before the Court for want of leave pursuant to Order 9 Rule 9 of the Civil Procedure Rules; that the 1st respondent has failed to demonstrate the conditions for grant of an order for stay pursuant to Order 42 Rule 6 of the Civil Procedure Rules. By the provision of Section 1 (2) of the Civil Procedure Act and the Rules made pursuant to it, these provisions have no application before this Court. Civil proceedings in this Court are regulated by the Supreme Court Rules.
8.
The Registrar, as the taxing officer, has the power to tax costs arising out of any proceedings before this Court, between the parties in accordance with the scale set out in the Third Schedule to the Rules and the jurisdiction of a single Judge to entertain a reference made within seven days by a person who is dissatisfied with a decision of the Registrar in the taxing of costs. The applicable law at the time of filing the Bill of Costs in 2014 was the Supreme Court Rules 2012 and the Third Schedule thereunder which, in contrast with the 2020 Rules, permitted any person dissatisfied with the decision of a single judge to apply to the Court to vary, discharge or reverse the decision. However, following the promulgation of the 2020 Rules, this has changed so that the decision of a single judge in a reference on taxation, just like in the case of review of any decision of the Registrar under Rule 6, is final.
9.
In the exercise of that function the taxing officer, in his ruling of 9th June 2023 taxed the bill at Kshs. 6,184,590, the main bone of contention being instruction fees. While the appellant had sought Kshs. 10,000,000 under this item, the taxing officer awarded Kshs. 6,000,000, based, first on the complexity of the question the appeal raised and secondly, guided by previously decided cases, all of which appear to have taxed the bills presented at half the amount sought.
10.
The principles of setting aside the decision of a Taxing Officer are now old hat, going by the numerous decisions of the superior courts below. As early as 1972 these principles were propounded by Spry VP, in the leading case of Premchand Raichand Limited & Another v. Quarry Services of East Africa Limited and Another; [1972] EA 162, which has been approved in a long line of subsequent rulings, for example, First American Bank of Kenya v. Shah and Others; (2002) EA 64 and Joreth Ltd v. Kigano and Associates (2002); 1 EA 92, to name but two.
11.
","Upon perusing this application brought pursuant to the provisions of Sections 3A and 23(2)(e) and (i) of the Supreme Court Act and Rule 62 of the Supreme Court Rules 2020 in which the only relief now left is for the single Judge to consider reviewing the decision of the Deputy Registrar dated 9th June 2023 on the Bill of Costs with respect to items Nos. 1, 2, 3, 5, 13, 14, 19, 20, 25, 26, 35, 36,37 and 40 and;
2.
Bearing in mind that the taxation in dispute arises from an election petition in which Fredrick Otieno Outa, the appellant was found to have been properly elected Member of the Parliament for Nyando Constituency in the 2013 general elections, and the appellant’s costs in the High Court, Court of Appeal and the Supreme Court were to be borne by Jared Odoyo Okelo, the 1st respondent; and
3.
Upon perusing the three affidavits sworn by the 1st respondent on 16th June 2023, 3rd July 2023, and 7th July 2023 as well as the affidavit sworn by Bruce Odiwor Odeny on 3rd July 2023 in support of the Motion as well as the submissions and supplementary submissions by the 1st respondent filed on 22nd June 2023 and 4th July 2023, respectively, wherein he explains that the imminent execution will diminish his political career and cause him irreparable loss incapable of being compensated in monetary terms; that he had raised an objection to the Bill of Cost dated 20th August 2014, and sought for its dismissal because it was not served within the mandatory seven days as provided for under clause 2(1) of the Third Schedule of the Supreme Court Rules 2012; that the Deputy Registrar, however, noted that the Supreme Court Rules 2012 did not provide for any sanctions therein and in any event, the issue had been overtaken by events; that the Deputy Registrar deliberately failed to apply the sanctions under Rule 55(a) and (b); and
4.
Upon further considering the 1st respondent’s submissions to the effect that pertaining to item No. 1, the Deputy Registrar disregarded the ratio enunciated by the Court of Appeal sitting in Nyeri in Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 Others; CA No. 12 of 2018; [2018] eKLR to the effect that an award of costs is not a punishment or a deterrent measure to scare away litigants from the doors of justice; that the Deputy Registrar misdirected himself by failing to take into account all the conditions set out under clause 9(2) of the Third Schedule in awarding instruction fees; that with regard to item No. 2, the scale provides for Kshs. 1000; that with regard to items Nos. 3, 13, 14, 19, 20, 25, and 26, the advocate did not sign a certificate that the number of folios in respect of any item charged was correct and the Deputy Registrar confirmed the same and found 51 folios as opposed to 2671 folios but allowed the costs anyway; and that on item No. 5, the only air ticket produced had a figure of Kshs. 4,800 but the Deputy Registrar awarded Kshs. 12,460 instead; and
5.
Noting that the appellant in his preliminary objection, replying affidavit, and written submissions all filed on 3rd July 2023 is opposed to the application on grounds that counsel for the 1st respondent lacks audience before this Court for want of leave pursuant to Order 9 Rule 9 of the Civil Procedure Rules; that the 1st respondent has failed to demonstrate the conditions for grant of an order for stay pursuant to Order 42 Rule 6 of the Civil Procedure Rules; that Rule 55(a) and (b) is discretionary and the Deputy Registrar exercised this discretion judiciously in issuing directions with respect to the appellant’s Bill of Costs; that the notice of objection having been filed way after compliance of the said directions had been overtaken by events; that in any event, the 1st respondent was represented by counsel on 13th March 2023 and 11th April 2023 when the said directions were issued and failure by counsel on record to raise an objection on the said dates cannot be visited on the Deputy Registrar; and
6.
Further Noting the appellant’s argument that pursuant to clause 9(2) of the Third Schedule of the Supreme Court Rules 2012, the Deputy Registrar found that indeed the appeal raised complex questions of law and facts, taking into account that this was the second appeal before this Court following the promulgation of the Constitution in 2010 and a lot of research and industry was employed by the appellant’s team to ensure success, hence the instruction fees awarded by the Deputy Registrar was reasonable; that item No. 2 of the Bill of Costs was awarded according to scale in the Third Schedule to the Supreme Court Rules 2012, that is Kshs. 2000; that pertaining to item Nos. 3, 13, 14, 19, 20, 25, and 26, clause 3(2)(c) of the Third Schedule relied on by the 1st respondent, allows the Deputy Registrar to exercise discretion which discretion was duly and properly exercised.
In view of the foregoing, I, Now Therefore Opine As Follows:
7.
In the first place, the appellant filed his Bill of Costs on 21st August 2014. For some unknown reasons, it has taken more than 9 years and two election cycles for the Bill to be taxed. The second thing to note is that the appellant has in his arguments as reflected in paragraph 5 above, repeatedly referred to provisions of the Civil Procedure Rules for the arguments that counsel for the 1st respondent lacked audience before the Court for want of leave pursuant to Order 9 Rule 9 of the Civil Procedure Rules; that the 1st respondent has failed to demonstrate the conditions for grant of an order for stay pursuant to Order 42 Rule 6 of the Civil Procedure Rules. By the provision of Section 1 (2) of the Civil Procedure Act and the Rules made pursuant to it, these provisions have no application before this Court. Civil proceedings in this Court are regulated by the Supreme Court Rules.
8.
The Registrar, as the taxing officer, has the power to tax costs arising out of any proceedings before this Court, between the parties in accordance with the scale set out in the Third Schedule to the Rules and the jurisdiction of a single Judge to entertain a reference made within seven days by a person who is dissatisfied with a decision of the Registrar in the taxing of costs. The applicable law at the time of filing the Bill of Costs in 2014 was the Supreme Court Rules 2012 and the Third Schedule thereunder which, in contrast with the 2020 Rules, permitted any person dissatisfied with the decision of a single judge to apply to the Court to vary, discharge or reverse the decision. However, following the promulgation of the 2020 Rules, this has changed so that the decision of a single judge in a reference on taxation, just like in the case of review of any decision of the Registrar under Rule 6, is final.
9.
In the exercise of that function the taxing officer, in his ruling of 9th June 2023 taxed the bill at Kshs. 6,184,590, the main bone of contention being instruction fees. While the appellant had sought Kshs. 10,000,000 under this item, the taxing officer awarded Kshs. 6,000,000, based, first on the complexity of the question the appeal raised and secondly, guided by previously decided cases, all of which appear to have taxed the bills presented at half the amount sought.
10.
The principles of setting aside the decision of a Taxing Officer are now old hat, going by the numerous decisions of the superior courts below. As early as 1972 these principles were propounded by Spry VP, in the leading case of Premchand Raichand Limited & Another v. Quarry Services of East Africa Limited and Another; [1972] EA 162, which has been approved in a long line of subsequent rulings, for example, First American Bank of Kenya v. Shah and Others; (2002) EA 64 and Joreth Ltd v. Kigano and Associates (2002); 1 EA 92, to name but two.
11.
A certificate of taxation will be set aside and a single Judge can only interfere with the taxing officer’s decision on taxation if;
a.
there is an error of principle committed by the taxing officer;
b.
the fee awarded is shown to be manifestly excessive or is so high as to confine access to the court to the wealthy;(and I may add, conversely, if the award is so manifestly deficient as to amount to an injustice to one party).
c.
the court is satisfied that the successful litigant is entitled to fair reimbursement for the costs he has incurred, (and I may add, the award must not be regarded as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected by the other party); and
d.
the award proposed is so far as practicable, consistent with previous awards in similar cases.
To these general principles, I may add that;
i.
There is no mathematical formula to be used by the taxing officer to arrive at a precise figure because each case must be considered and decided on its own peculiar circumstances,
ii.
Although the taxing officer exercises unfettered judicial discretion in matters of taxation that discretion must be exercised judicially, not whimsically,
iii.
The single Judge will normally not interfere with the decision of the taxing officer merely because the Judge believes he would have awarded a different figure had he been in the taxing officer’s shoes.
12.
Starting with item No. 1 and guided by Rule 9 (2) of the Third Schedule to the effect that the fees allowed for instructions to appeal or to oppose an appeal is in the discretion of the taxing officer and shall be such sum as he shall consider reasonable, having regard to the amount involved in the appeal, its nature, importance and difficulty, the interest of the parties, the other costs to be allowed, the general conduct of the proceedings, the person to bear the costs and all other relevant circumstances; and shall include all the work done in connection with the appeal, including attendances, correspondence, perusals, and consulting authorities. The absolute least is that fees must be commensurate to work done, and it will amount to unjust enrichment if it is not awarded for this purpose.
13.
Before applying these principles to the facts in this reference, it has to be restated that the genesis of this reference is an election petition that transcended the High Court through the Court of Appeal up to this Court; and that at every stage the appellant was successful and awarded costs. Whereas the main issue in contestation was whether the appellant committed an electoral offence of bribery, this Court also determined issues of constitutionality of Section 85A of the Elections Act on the restriction of the jurisdiction of the Court of Appeal to ‘matters of law only’ in election-dispute appeals, as well as whether members of Constituency Development Fund are “public officers” under the Constitution. In our judgment of 3rd July 2014, we declared at paragraph 211 that the appeal raised complex questions of law and fact and awarded the appellant costs against the 1st respondent from the High Court, Court of Appeal, and in this Court.
14.
The taxing officer rendered himself as follows in his consideration of item No.
1.
(Instruction fees);
“
I have on my part been guided by the decision of the Superior courts in such matters and the decision of my predecessors in this court and I am satisfied that the instruction fees sought for herein is excessive. For instance, in Sc Petition No. 24 Of 2018 Hon. Clement Kungu Waibara vs Hon. Annie Wanjiku Kibeh & Another where the Petitioner had sought for instruction fees of Kshs. 1,000,000.00, my predecessor taxed it at Kshs.600,000.00. In Sck Petition No. 23 of 2018 Sammy Kemboi Kipkeu vs Bowen David Kangogo the petitioner had sought for instruction fees of Kshs. 1,000,000.00 but it was taxed at Kshs. 500,000.00.
(17)
It is evident from the two decisions referred to by the 1st respondent that; my predecessor reduced instruction fees by half or thereabouts” With that, the taxing officer proceeded to tax item No.1 at Kshs. 6,000,000.00 (Kenya shillings six million only).
15.
Although taxation is not a mathematical exercise but a discretionary process the taxing officer merely purported to mechanically reduce to half the instruction fees claimed because that is what his predecessors had done previously. There has to be some justification for doing so. Even looking at some of the authorities relied upon, the principle adopted here by the taxing officer was still flawed and the amount taxed was manifestly excessive as to amount to an injustice. The taxing officer, after properly setting out the criteria of taxation in Rule 9(2) of the Third Schedule, and stressing the complexity of the appeal, put undue consideration on reducing the amount claimed into half and ignored the fact that in the High Court appellant was awarded an all-inclusive cost of Kshs. 750,000, and Kshs. 350,000 as instruction fees by the Court of Appeal. The taxing officer ought to have also been guided by a legion of decisions of the superior courts on costs in election petitions. Those decisions emphasize that costs are not meant to be punitive but to compensate a successful litigant; that high costs are an impediment to the right to access to justice and; that in awarding costs, courts must be guided by the principles of fairness, justice, and access to justice. See Mercy Kirito Mutegi v Beatrice Nkatha Nyaga & 2 others; [2013] eKLR, Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others (supra); Dennis Magare Makori & Another v IEBC & 3 Others, Kisumu Election Petition Appeal No. 22 of 2018; and Philip Kyalo Kaloki v IEBC & 2 Others, Election Petition Appeal 25 of 2018.
16.
It was as a result of concerns over high awards of costs in election petitions that in 2017, Elections (Parliamentary and County Elections) Petitions Rules were promulgated, introducing a mechanism for capping costs in election petitions, whose rationale is to extend a fair and consistent compensation of costs incurred by the successful litigants and to deter unjust enrichment through inflated bills of costs. Rule 30 thereof enjoined election courts, at the conclusion of a petition or appeal, to make an order specifying-
(a)
the total amount of costs payable;
b.
the maximum amount of costs payable;
b.
the person who shall pay the costs under paragraph (a) or (b); and
c.
the person to whom the costs payable under paragraphs
(a)
and (b) shall be paid”.
17.
In many election petitions today which have been heard fully and decided on merit, costs have been capped by courts at no more than Kshs. 2.5 million or 3 million. Going by these trends, an award of Kshs. 6 million is a new record high. In Esposito Franco v Amason Kingi Jeffah & 2 Others [2014] eKLR, costs were capped at a total of Kshs. 3 million to be shared equally by all the 3 respondents. In Marble Muruli v Wycliffe Oparanya & 3 others [2013] eKLR, costs were capped at Kshs.5 million to be shared between the petitioner, 1{{^st}respondent and the 2nd respondent. In Ferdinard Ndungu Waititu v Independent Electoral & Boundaries Commission (IEBC) & 8 others [2013] eKLR the court capped the total costs at Kshs.5 million, payable to all the 5 respondents jointly. In Jackton Ranguma v IEBC & others [2017] Kshs.2.5 million was awarded to the 1st and 2nd respondents, in Mercy Kirito Mutegi v Beatrice Nkatha Nyaga & 2 others (supra), the Court of Appeal capped the total costs at Kshs.2.6 million for 3 respondents. Owino Paul Ongili Babu, the 1st respondent in Francis Wambugu v Owino Paul Ongili Babu; SC Petition No. 15 of 2018, had sought Kshs. 30 million as instruction fees but the taxing officer in this Court awarded Kshs. 2 million. Similarly and finally, in Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others (supra), the Court of Appeal reduced costs of Kshs.10 million awarded by the High Court to Kshs.2 million.
18.
In the circumstances, I come to the conclusion that the taxing officer committed an error of principle in awarding Kshs. 6 million as instruction fees. This, as I have shown was manifestly excessive, and did not take into account the consistent levels of awards given for instruction fees in previous similar cases. Of course, on the other hand, the amount of Kshs. 500,000 proposed by the 1st respondent, is manifestly deficient.
19.
Taking into account everything else stated in the preceding paragraphs, it is my considered opinion that an award of Kshs. 1,000,000 is sufficient recompense to the appellant in the circumstances of this reference. While there is no gain in saying that the appeal was of some substance and import, as reflected in the length of the judgment running into 211 paragraphs, I reiterate what I stated at the beginning of this ruling that the only (main) question in the petition was simply whether the appellant had committed the election offence of bribery, for which the High Court awarded an all-inclusive costs Kshs. 750,000, and the Court of Appeal Kshs. 350,000. Of course, the question of the constitutionality of Section 85A of the Elections Act and whether Constituency Development Fund (CDF) Members are “public officers” was also resolved.
20
Finally, regarding items Nos. 2, 3, 13, 14, 19, 20, 25, 26, 35, 36, 37, and 40, I am satisfied they were all properly taxed to scale, and therefore attract no further consideration.
21.
Consequently, this reference succeeds only to the extent that Item No. 1 taxed at Kshs.6 million is set aside and substituted with a sum of Kshs. 1 million.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/75/eng@2023-09-22
Application E016 of 2023,Sanitam Services (EA) Limited v Nyaga & another (Application E016 of 2023) [2023] KESC 81 (KLR) (Civ) (22 September 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          W Ouko",22 September 2023,2023.0,Nairobi,Civil,Sanitam Services,[2023] KESC 81 (KLR)               ,,"Brief facts
The originating motion sought among other orders: the review/ setting aside the ruling, orders and decision of the Court of Appeal in Civil Application No. E089 of 2021; the certification of the matter as fit for determination by the court against the decision and judgment of the Court of Appeal in C.A. No. 10 of 2019. The applicant contended that the Court of Appeal’s finding and judgment in Civil Appeal No. 10 of 2019 which was based on an additional principle/ingredient of defamation had no foundation in law; that was, the requirement for evidence by a third party to establish injury to a person’s reputation. According to the applicant, the requirement, albeit erroneous, had often been applied by the courts below and therefore the intended appeal presented the Supreme Court with an opportunity to resolve the anomaly and error. 
The applicant further contended that the requirement for evidence by a third party violated and ousted the applicant’s inherent right to dignity. The applicant also found that despite appreciating that the 1st respondent had admitted to the four known legal principles/ingredients of defamation, the Court of Appeal found the applicant had not established the erroneous additional principle; and the effect of such a finding was that it altered the entire body of law relating to admissions. The respondents contended that: the application had not met the test for certification as raising matters of general public importance. 
Issues
Whether a mere apprehension of a miscarriage of justice was a proper basis for granting certification for an appeal to the Supreme Court. 
","1.
Upon perusing the originating motion dated April 13, 2023 and filed on May 25, 2023, pursuant to article 163(4) of the Constitution, and rules 24 and 26 of the Supreme Court Rules, seeking the following orders:
1.
The ruling, orders and decision of the court of Appeal of March 31, 2023 in Civil Application No E089 of 2021 be reviewed/set aside.
2.
This honourable court be pleased to certify this matter as fit for determination by the Supreme Court against the decision and Judgment of the Court of Appeal in CA No 10 of 2019.
3.
As a consequence, thereof, the applicant be granted leave to appeal to the Supreme Court.
4.
That as a consequence thereto this honourable court be pleased to, inter alia, formulate the following issues for consideration in the intended appeal:
i.
Is the principle of third-party evidence one of the principles of the law requisite in defamation proceedings?
ii.
Is third party’s evidence the best evidence in defamation proceedings?
iii.
Did the Court of Appeal by its findings and judgment oust the applicant’s inherent right to dignity under article 28 of the Constitution of Kenya?
iv.
Was there a violation and infringement of the applicant’s rights under article 25(c) and 28 of the Constitution of Kenya?
v.
Is it time for the courtto reinterpret and correct the precedent set out in legal dicta in regard to defamation in light of article 25(c) and 28 of the Constitution of Kenya?
5.
Cost be provided for.
2.
Upon perusing the grounds on the face of the application and the supporting affidavit by the applicant’s Director, SM Kamau Ng’ang’a, sworn on April 13, 2023 where he contends that: the legally established ingredients for the tort of defamation are that the statement in issue must be defamatory, it must refer to the plaintiff, it must be published by the defendant and it must be false; the Court of Appeal’s finding and judgment in Civil Appeal No 10 of 2019 which was based on an additional principle/ingredient which has no foundation in law; that is, the requirement for evidence by a third party to establish injury to a person’s reputation; the aforementioned requirement, albeit erroneous, has often been applied by the courts below; therefore the intended appeal presents the Supreme Court with an opportunity to resolve the anomaly and error; the requirement for evidence by a third party violates and ousts the applicant’s inherent right to dignity under article 28 of the Constitution; despite appreciating that the 1st respondent had admitted to the four known legal principles/ingredients of defamation, the Court of Appeal found the applicant had not established the erroneous additional principle; and the effect of such a finding is that it altered the entire body of law relating to admissions; and
3.
Upon Further considering the applicant’s grounds that: the Court of Appeal’s reliance on irrelevant case law violates articles 164 and 166 of the Constitution; whereas it was a second appeal, the Court of Appeal took into account matters of fact including facts that had neither been raised nor canvassed at the trial and appellate court contrary to article 25(c) of the Constitution; the impugned judgment violates sections 17, 20, 22, 23, 100, 107, 117, 119, 143 and 162 of the Evidence Act; the issues sought to be raised in the intended appeal transcend the parties dispute and are of general public interest; and
4.
Upon considering the applicant’s submissions dated May 22, 2023and filed on May 25, 2023where it contends that: its intended appeal meets the test and threshold set out in the Court of Appeal decision in Kenya Plantation and Agricultural Workers Union v Kenya Export Floriculture Horticulture and Allied Workers Union Sup Case No 5 of 2017 [2018] eKLR; there is need for interpretation of articles 25(c), 28, 33(3) of the Constitution relating to the right to fair trial, dignity and freedom of expression given that persons must be protected from reputational risks; other jurisdictions such as India, United Kingdom, USA, Australia and Nigeria do not require that harm or injury to a person’s reputation should be proved by evidence of a third party witness under the respective laws;
5.
Noting that the respondents did not file any response to the application but only filed the submissions dated June 20, 2023 on June 23, 2023wherein they contend that: the application has not met the test for certification as raising matters of general public importance relying on this court’s decisions in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone SC Application 4 of 2013 [2013] eKLR, and Malcolm Bell v Daniel Toroitich Arap Moi & another, Supreme Court Application No 1 of 2013 [2013] eKLR which the Court of Appeal correctly applied; the matter does not raise any substantial point of law with a bearing on public interest but is a dispute that arose between two private entities; it has not been demonstrated that there is uncertainty in the law of defamation within our jurisdiction nor have there been contradictory precedents thereto; the applicant has failed to concisely set out the specific elements of general public importance in the present dispute but merely alleges breach of numerous constitutional and statutory provisions without providing a cogent nexus to public interest; and
6.
Noting that the applicant has not specified whether the application is made under article 163(4)(a) or (b) of the Constitution, we take cognizance of the fact that the substance of the application and the orders sought relate to article 163(4)(b) which grants this court jurisdiction to hear appeals from the Court of Appeal on matters of general public importance; and
7.
Taking into Account this court’s guiding principles for certifying a matter as one involving general public importance set out in Hermanus Phillipus Steyn case, we Now Opine as follows:
i.
The issues for determination in the substantive appeal before the Court of Appeal were whether the learned Judge of the High Court rightly found that the ingredients for the tort of defamation were proved on a balance of probabilities; whether the learned Judge rightly reduced the award from Kshs 7 million to Kshs 2 million; and specifically whether to succeed in the claim for defamation, it was incumbent upon the applicant herein to prove that as a consequence of the letters referred to, the operative words being, “..that Sanitam Service have approached many of our customers with similar warnings in the recent past with clear intent to acquire business through unscrupulous ways…” and “…this is illegal approach..” its character and reputation was diminished.
ii.
In summary, the five questions set out by the applicant as matters of general public importance are whether third party evidence is a prerequisite in defamation, and whether there was a violation of the applicant’s rights underarticles 25(c) and 28 of the Constitution, which in our view are factual issues specific to the parties’ circumstances and do not transcend the parties’ dispute;
iii.
The applicant has not established any contradiction or uncertainty in law arising from the Court of Appeal judgment in respect to its decision on the ingredients of the tort of defamation, and the attendant law that requires settlement by this Court. On the alleged violation of articles 25(c), 28, 164 and 166 of the Constitution by the Court of Appeal, the same is not subject to the Court’s jurisdiction under article 163(4)(b) of the Constitution;
iv.
We reiterate, as we have in previous decisions of the court, that a mere apprehension of a miscarriage of justice, is a matter most apt for resolution in the superior courts below, and is not a proper basis for granting certification for an appeal to the Supreme Court;
v.
We have perused the impugned Court of Appeal ruling and are satisfied that the Court of Appeal correctly interrogated the applicants’ proposed issues under the threshold set by this Court in Hermanus Phillipus Steyn case. We affirm the appellate court’s decision in declining to certify the questions raised by the applicant as matters of general public importance that would necessitate the exercise of this court’s jurisdiction under article 163(4)(b) of the Constitution;
8.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/81/eng@2023-09-22
Petition (Application) E005 of 2023,Stanbic Bank Kenya Limited v Santowels Limited (Petition (Application) E005 of 2023) [2023] KESC 82 (KLR) (22 September 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",22 September 2023,2023.0,Nairobi,Civil,Stanbic Bank Kenya Limited v Santowels Limited,[2023] KESC 82 (KLR)               ,,"Brief facts
The appeal arose from issues revolve around the interpretation of whether the rate of interest applied by a financial institution and the variation/increase thereof was subject to the approval of the Cabinet Secretary in charge of finance or within the parties’ freedom to contract. The Court of Appeal certified the matter as one raising issues of general public importance and the matter found its way to the Supreme Court.
 In the instant application, the Attorney General sought leave to be joined as amicus curiae. The applicant also sought for the Cabinet Secretary for Finance and National Treasury to be joined as an amicus curiae. 
Issues
Whether an applicant that had not sought to review the decision by the Court of Appeal to certify an appeal to the Supreme Court as one raising issues of public importance could contest the certification during the hearing of the substantive appeal at the Supreme Court
Whether a delay in filing pleadings on grounds that an applicant was waiting for the court to determine the pending applications was unreasonable.
What factors guided the Supreme Court in deterring an application to be joined as amicus curiae?
","Upon perusing the notice of motion dated July 18, 2023 and lodged on July 25, 2023 by Stanbic Bank Kenya Limited (the applicant) under rules 3, 19(1)(2) & (4) and 31 of the Supreme Court Rules, 2020 seeking the following orders:
a.
Leave be granted by this court for the Cabinet Secretary for Finance & National Treasury (sic) to be joined as an amicus curiae to this appeal.
b.
The costs of this application be provided for.
2.
Noting that while the applicant seeks the admission of the Cabinet Secretary for Finance and National Treasury (sic), it probably meant the Cabinet Secretary, National Treasury and Economic Planning (the Cabinet Secretary); and that throughout its application and supporting affidavit thereto, the applicant refers to the Cabinet Secretary and the Attorney General interchangeably;
3.
Taking into account the affidavit in support of the motionsworn by the applicant’s Head of Legal, Litigation and Corporate Functions, June Opiyo, on July 18, 2023 and the applicant’s submissions of even date to the effect that; firstly, the appeal herein raises substantial matters of general public importance; the issues revolve around the interpretation of sections 44 and 52 of the Banking Act; that is, whether the rate of interest applied by a financial institution and the variation/increase thereof is subject to the approval of the Minister (now known as the Cabinet Secretary) in charge of finance or within the parties freedom to contract; and the issues are cross cutting and affect the entire banking industry;
4.
Secondly, upon filing the appeal herein, the applicant by a letter dated March 6, 2023 informed the Attorney General of the same and served him with copies thereof; the Attorney General has significant experience in law, legislative amendments as well as the roles and workings of the Cabinet Secretary; the participation of the Attorney General/Cabinet Secretary will be of valuable assistance to this court; thirdly, the intended amicus curiae meets the criteria under rule 19 of the Supreme Court Rules, 2020; the Attorney General meets the neutrality test set out in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others, SC Petition No 12 of 2013; [2015] eKLR (Mumo Matemo); the motion has been brought without delay; and lastly, no prejudice will be occasioned to the parties by the admission of the intended amicus curiae;
5.
Cognizant that Santowels Ltd (the respondent) by a replying affidavit sworn by its advocate on record, Kelvin Mogeni, on August 2, 2023 and written submissions of even date opposed the motion on the grounds that; the crux of the appeal relates to the applicant overcharging interest on the respondent’s loan account; no issue arose as to the application of sections 44 and 52 of the Banking Act in the superior courts below; in any event, while interpreting sections 44 and 52 of the Banking Act that duty falls on the court and not the Cabinet Secretary; the appeal does not raise any matter of public importance or public interest to warrant the intended amicus curiae’s participation; moreover, the motion was brought late contrary to rule 19(4) of the Supreme Court Rules, which requires such a motion to be lodged within seven (7) days of filing any response in the appeal; the appeal was filed on March 1, 2023 while the respondent filed its response vide a cross appeal dated March 23, 2023 and a replying affidavit dated March 24, 2023; it follows that the motion should have been filed within seven
(7)
days of filing of the cross appeal; the intended amicus curiae has not filed any application for admission as required by rules 6 and 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules); and the admission of the intended amicus curiae would only convolute the matter;
6.
Appreciating that when the Motion was mentioned before the Deputy Registrar of this court on August 7, 2023, counsel for the applicant indicated that the intended amicus curiae had been served although the intended amicus curiae had not filed any brief or response to the motion; and
7.
Bearing in mind the role of an amicus curiae in any proceedings is to aid the court to arrive at a determination based on the law. See Attorney General v Ndii & 73 others; Akech (Intended amicus curiae), SC Petition (Applic) No E016 of 2021; [2021] KESC 20 (KLR). Further, that the operative provision that guides the court in considering the admission of an amicus curiae is rule 19 of the Supreme Court Rules, 2020 which reads –
“
19.
Participation of friends of the court
1.
The court may on its own motion, or at the request of any party, permit a person with particular expertise to appear in any matter as a friend of the court.
2.
The court shall before admitting a person as a friend of the court, consider
a.
proven expertise of the person;
b.
independence and impartiality of the person; or
c.
the public interest.
3.
Any fees or expenses incurred by a person appointed by the court as a friend of the court on its own motion, shall be paid out of the Judiciary Fund, in accordance with a scale determined by the President.
4.
An application to be admitted as an amicus or a friend of the court shall be done within 7 days upon filing of a response in any proceedings before the court.”
8.
Upon deliberations on the motion and the rival submissions we opine as follows:
i.
It is not disputed that the appeal herein was lodged under article 163(4)(b) of the Constitution. In point of fact, the Court of Appeal in certifying that the appeal raised issues of general public importance by its ruling dated February 17, 2023 in Civil Applic (Sup) No E196 of 2022 expressed as follows:
“
We have also considered the applicant’s grounds in support of certification and in our view, the intended appeal primarily revolves around the proper interpretation and application of sections 44 and 52 of the Banking Act. As we understand it, the applicant is saying that the courts have given different interpretation on instances when the consent of the minister in charge of finance is required and instances when the parties have freedom of contract to agree on the rate of interest, including the right to vary that rate.
Having considered the issue, we find there is uncertainty in the law arising from the contrary views in the High Court and this court on the question of the rate of interest and banking charges which requires certainty. The battle on whether banks have a free hand to change any rate of interest and banking charges and whether customers can wake up many years after signing contractual documents to challenge the rate of interest has been ranging in our courts for a long time and requires clarification.”
ii.
It is also common ground that the respondent did not seek a review of the above order of certification. Accordingly, the respondent cannot now be heard to claim that the appeal does not raise any issue of general public importance.
iii.
As to the competence of the motion which was filed by the applicant as opposed to the intended amicus curiae, rule 19(1) of the Supreme Court Rules is clear. It provides that any party can request the court to admit a person as amicus curiae. Furthermore, this court in Mumo Matemo confirmed that it can consider suggestions from parties to any proceedings, to have a particular person, state organ or organization admitted in any proceedings as amicus curiae.
iv.
It is not clear to us who between the Cabinet Secretary and the Attorney General, the applicant seeks to be admitted as amicus curiae. As we pointed out earlier in this ruling, the applicant refers to both of them interchangeably. Be that as it may, while we have no doubt as to the Attorney General’s expertise, the applicant has not demonstrated that the intended amicus curiae would be addressing point(s) of law which have not been addressed by the parties to the suit. In other words, that he would introduce novel aspects of the legal issues in question that will aid in the development of the law. See Mumo Matemo.
v.
Besides, it would appear that neither the Attorney General nor the Cabinet Secretary is keen in participating in this matter. The applicant deposed that it served the Attorney General with its appeal on March 6, 2023. What is more, despite being served with motion, the intended amicus curiae have not filed any response or brief setting out their position. Equally, we find that no prejudice would be occasioned to the Cabinet Secretary or the Attorney General if they are not admitted as amicus curiae. See JOO v MBO; Federation of Women Lawyers (Intended Interested Party); Law Society of Kenya & 3 others (Amici Curiae), SC Petition (Applic) No 11 of 2020; [2021] eKLR.
vi.
Last but not least, the applicant lodged its appeal on March 1, 2023 while the respondent lodged its cross appeal and replying affidavit on 22nd and March 24, 2023 respectively. It is not clear why the applicant chose to file the motion at hand on July 25, 2023. Moreover, the explanation that the applicant could not file the motion because of another pending application for joinder of Kenya Bankers Association as an interested party, which was only determined on June 16, 2023 holds no weight. Nothing stopped the applicant from filing its motion as an application for joinder of an interested party has no bearing on admission of an amicus curiae. In fact, in many instances this court has determined such applications simultaneously. Consequently, we find that the motion at hand was lodged after unreasonable delay.
vii.
Based on the foregoing, the motion does not meet the criteria set out under rule 19 of the Supreme Court Rules and lacks merit.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/82/eng@2023-09-22
Petition 5 (E006) of 2022,Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",22 September 2023,2023.0,Nairobi,Civil,Torino Enterprises Limited v Attorney General,[2023] KESC 79 (KLR)               ,,"A. Introduction
1.
Before this court is the petition dated March 14, 2022 and filed on March 16, 2022. It is brought under articles 10(1) and (2), 19, 22, 27 (1) and (2), 50(1) and 163(3)(b) and (4)(a), of the Constitution and section 15(2) of the Supreme Court Act, 2011, challenging the judgment and orders of the Court of Appeal (Musinga (P), Murgor & Mohamed JJA) delivered in Civil Appeal No 84 of 2012 on February 4, 2022. The impugned decision overturned the High Court (Gacheche, J as she then was) in Constitutional Petition No 38 of 2011.
B. Background
i.At the High Court
2.
On February 21, 1964, a freehold title known as Embakasi LR No 11xxx (Original No 41/x) measuring 5639 acres was alienated and granted to Kayole Estates Limited. Thereafter, this parcel of land was transferred to the then Nairobi City Council (hereinafter NCC) for valuable consideration and a transfer duly registered on November 22, 1971. In 1973, the parcel of land was subdivided into eight parcels. One such parcel is LR No 22xxx, Grant No IR 85966 situate within the City of Nairobi and measuring 83.910 hectares (hereinafter the Suit Property).
3.
In a plaint dated March 10, 2011 and filed on even date, the appellant instituted High Court, Constitutional Petition No 38 of 2011 against the Attorney General, the respondent herein. It was the appellant’s case that upon payment of a consideration of Kshs 12,000,000.00 it had acquired the suit property for a term of 99 years commencing from the year 2000, from Renton company limited, which company had acquired the said property for value from NCC, through an allotment letter dated December 19, 1999. The appellant urged that it was issued with a title deed under the Registration of Titles Act cap 281 on April 26, 2001.
4.
The appellant further contended that on or about the year 2005, the Department of Defence (hereinafter DoD) encroached on its property and unlawfully fenced off ninety (90) acres thereof. It urged that despite demands and requests to desist from trespassing on its property, DoD proceeded to construct a demining college and auxiliary buildings. It was its case that these actions were illegal and contravened its constitutional rights to property guaranteed under article 40 of the Constitution. It further urged, that DoD had failed to communicate its intention to acquire part of the suit property or to comply with the compulsory acquisition procedures provided for under the Land Acquisition Act (cap 295). It consequently sought the following reliefs;
i.
A declaration that the Government’s acquisition of 90 acres of the suit property was in contravention of article 40(3) of the Constitution;
ii.
A declaration that the said occupation, retention and detention of the said 90 acres amounted to compulsory acquisition;
iii.
A declaration that any continued occupation of the said portion of the suit property without compensation amounted to acquisition contrary to article 40(3) of the Constitution;
iv.
That it be restored possession of its land in the same condition it was when it was unlawfully acquired by the Government, or alternatively an order for the payment of Kshs 1, 530,000,000 being the [then] current value of the said 90 acres, with interest thereon at the [then] prevailing central bank rates from the date of the petition till payment in full;
v.
An order for mesne profits from the date of the respondent’s occupation until its restoration; and
vi.
Costs of the petition.
5.
In opposition, DoD argued that in 1984, it had requested the permanent secretary, Ministry of Defence to initiate consultative engagements with the NCC, the then registered proprietor and other stakeholders, with the intention to acquire a portion of the suit property for the expansion of its Embakasi Garrison. It was the respondent’s argument that after expansive consultation in 1986, the Ministry of Defence surveyed, beaconed and fenced the identified portion. It was also contended that the Commissioner of Lands had given assurance to DoD that the said parcel would be registered in its name.
6.
DoD also challenged the legality of the appellant’s title, arguing that the same had not been acquired in accordance with the applicable laws. It contended that the suit property was public land, and as such, was not available for allocation to a private entity. It further submitted that it had put up important military facilities thereon. In conclusion, DoD argued that the title issued to the appellant could not be protected under article 40(6) of the Constitution and that the said alleged proprietorship was against public interest.
7.
In a judgment delivered on July 4, 2011, the trial court, (Gacheche, J) allowed the petition with costs to the appellant. The court determined that the suit property was a freehold private property and not public land, contrary to the contention by DoD. The court held that the appellant was the lawfully registered proprietor, pursuant to article 40 of the Constitution and section 23(1) of the Registration of Titles Act.
8.
The trial court held that DoD was in contravention of article 40(3) of the Constitution and the requirements laid down in Part II of the Land Acquisition Act cap 295. It held that the occupation, retention, and continued occupation of the said portion of the suit property amounted to an illegal compulsory acquisition.
9.
The trial court issued the following orders, as particularized in its decree issued on July 12, 2011;
a.
A declaration that the acquisition of the suit property by the respondent was in contravention of article 40(3) of the Constitution of Kenya & the Land Acquisition Act and thus the occupation, retention, detention and any continued occupation of the said portion of the suit land amounted to compulsory acquisition without compensation contrary to article 40(3) of the Constitution of Kenya .
b.
The respondent shall, within 30 days from the date of the Judgment, restore the possession of the said land to the respondent in the same condition as it was when it was unlawfully acquired;
c.
In the alternative, the respondent shall pay the appellant the sum of Kshs 1,530,000,000.00, being the market value of the said land as per the valuation report produced in court and undisputed by the respondent;
d.
Interest on the award at court rates till payment in full;
e.
The prayer for mesne profits is declined as it was not specifically pleaded; and
f.
Costs to the petitioner.
ii.At the Court of Appeal
10.
Aggrieved by the entire Judgment, the respondent filed Civil Appeal No 84 of 2012 citing twenty-five (25) grounds summarized as follows, that the trial judge erred in law and fact, in:
i.
Failing to consider that the respondent had been in actual occupation of the suit property for decades before the purported registration in the appellant’s name;
ii.
Failing to consider that DoD being a state organ within the meaning of article 62(1)(b) had an indefeasible constitutional right to use and occupy the suit property regardless of whether the appellant had subsequently been issued with title to the said property or not;
iii.
Failing to consider that the uninterrupted occupation of the land by DoD and the erection of military installations thereon had created a public interest that overrides all private interests;
iv.
Failing to find that the suit property was an original allocation from the Commissioner of Lands and thus was Government land within the meaning of the Government Lands Act;
v.
Failing to find that the title documents were processed in favour of Torino Enterprises without the consent of the Attorney General’s Accounting Officer;
vi.
Finding that there was compulsory acquisition;
vii.
Failing to consider that some of the documents relied on by Torino Enterprises before the trial court were obtained fraudulently;
viii.
Granting Torino Enterprises an award of Kshs 1, 530,000,000.00 on the basis of an unproved valuation report;
ix.
Failing to find that the title to the suit property purportedly acquired by Torino Enterprises contravened the provisions of article 40(6) of the Constitution; and
x.
Failing to find that there was fraud in the process of registration of the suit land in the name of Torino Enterprises.
11.
Before the matter was set down for hearing, the respondent by way of a motion dated October 5, 2017, sought leave to adduce additional evidence. The appellate court (Waki, Gatembu & Odek, JJA) on February 22, 2019, allowed the application and further granted leave to the appellant to adduce any additional evidence in reply. Both parties duly complied with the leave orders. However, during the hearing of the appeal, counsel for the respondent raised an objection urging the appellate court, to expunge part of the evidence adduced by the appellant. It was argued that the particularised evidence was inadmissible as it comprised uncertified public documents or confidential correspondence marked either ‘restricted or secret’, which ran contrary to the provisions of sections 68(2) and 80 of the Evidence Act.
12.
After hearing the parties, the Court of Appeal delineated the following issues for determination; whether some of the documents that were relied upon by the respondent offended the provisions of sections 68(2)(c) and 80 of the Evidence Act; whether the suit land was available for alienation and/or allocation; whether the registration of the suit land in the respondent’s name was legally done; and whether the respondent was illegally dispossessed of the suit land and therefore entitled to compensation.
13.
In a judgment delivered on February 4, 2022, the Court of Appeal (Musinga (P), Murgor & Mohamed, JJA), allowed the appeal and overturned the High Court. On the issue of whether any evidence relied on was inadmissible, the appellate court faulted the trial court for failing to make a finding on a similar objection raised by the respondent before it. It then determined that the evidence appearing on pages 32 and 52 of the record of appeal and on pages 21, 22, 23-27, 28-29,30, 32 and 33 of the respondent’s supplementary record of appeal was inadmissible. The court held that the same were public documents under section 79 of the Evidence Act. For the documents to be admissible as evidence, they had to be certified as required by section 80 of the Evidence Act. Since they had not been so certified, the same were expunged from the court’s record.
14.
On whether the suit land was available for alienation, the appellate court determined that the land in question was not “unalienated government land” within the meaning of section 2 of the Government Lands Act (repealed). on the contrary, the court held that the suit property was private land, even long before NCC bought it in 1971. As a result, it opined that the Commissioner of Lands lacked the power to alienate or allocate it to a third party.
15.
The court further found that at the time of allocation, purchase, and consequent transfer of the suit property, DoD was in occupation of a portion thereof. The latter had fenced it and put up various facilities thereon. As a result, it was the court’s reasoning that even if the Commissioner of Lands had the power to alienate the suit property, all persons likely to be affected by such action ought to have been informed and heard before the alienation. Additionally, it determined that the appellant was not an innocent purchaser for value without notice, as any diligent purchaser ought to have been aware of DoD’s occupation and military installations.
16.
The appellate court also took issue with the fact that the suit property, was hastily registered just a day after Renton Company Limited’s application to transfer the same to the appellant. It also noted that there was overwhelming evidence that sometime in 1997, NCC had entered into an arrangement with the Government of Kenya agreeing to allocate part of its land measuring 400 hectares to DoD at a consideration of Kshs.40,000,000.00. However, the appellate court did not definitively establish whether the purchase sum had been paid by DoD.
17.
Consequently, the court concluded that neither Renton Company Limited, nor the appellant herein, had acquired a valid interest in or over the suit property. It held that the Certificate of Title issued to the appellant was an illegal document and by virtue of article 40(6) of the Constitution, the concept of indefeasibility of title under section 26 of the Land Registration Act was inapplicable.
iii.At the Supreme Court
18.
Aggrieved by the entire judgment, the appellants filed the instant appeal, citing several grounds of appeal summarized as follows:
The judges of appeal erred in law by:
i.
Failing to dismiss the appeal before it having entered a finding that the suit property was private land, but instead proceeded to invalidate the appellant’s title in disregard of articles 10, 19, 22, 24, 27,40 and 50 of the Constitution, and particularly in disregard of laid down procedures for establishing the legality or otherwise of a title;
ii.
Failing to consider that under article 40(6) of the Constitution, a finding that any land was unlawfully acquired, must be through a legally established process;
iii.
Failing to determine that there had never been such a process leading to a finding of any unlawfulness;
iv.
Converting themselves into a court of first instance even when the respondent had brought to their attention the existence of a pending ELC Civil Case No 282 of 2012 City Council of Nairobi v Attorney General, Minister for State for Defence & Kenya Defence Forces (hereinafter ELC Civil Case No 282 of 2012) wherein the ownership and legality of the title to the Suit Property was squarely in issue;
v.
Failing to recognize that in a case where there were pending and substantive proceedings before a correct forum charged with the determination of the bona fides of a certificate of title, to wit the Environment and Land Court, it lacked the jurisdiction to prejudge the pending suit;
vi.
Defying and ignoring the respondent’s clear submission to the effect that the High Court Constitutional Division was not the proper or appropriate forum to determine the parties’ respective rights as there was no opportunity to call and test evidence on the nullification of a certificate of title;
vii.
Failing to find that the respondent had not presented any cross petition to establish fraud, illegality or corruption by the appellant and therefore its finding prejudiced any other future or pending legal process under article 40(6) of the Constitution;
viii.
Failing to follow the principle that the appellant’s title could only be challenged on the ground of fraud or misrepresentation, which had not been proven; and
ix.
Failing to appreciate that the bona fide owner of the suit property (NCC) was not claiming any rights against the appellant herein.
19.
The appellant seeks the following reliefs:
a.
The appeal herein be allowed and the portion of the Court of Appeal judgment dated February 4, 2022 that purported to nullify or otherwise invalidate the appellant’s title to land parcel No 22xx, Grant No IR 85xxx be set aside and the Judgment of the High Court dated July 4, 2011 be reinstated in full.
b.
The court be pleased to grant any other or further relief it may deem fit.","E. Analysis
i.On jurisdiction
39.
The appellant argued that the two superior courts acted in excess of jurisdiction by failing to confine themselves to the limited question of trespass and restitution as presented, and instead inquiring into the validity of the appellant’s title to the suit property.
40.
As regards the High Court, the appellant urged that the trial court was not the appropriate forum to determine the parties’ respective rights to the suit property as there was no opportunity to call or test evidence. As for the Court of Appeal, it was contended that the appellate court converted itself into a court of first instance, in disregard of the proceedings then pending before the Environment and Land Court in ELC Civil Case No 282 of 2012, wherein the ownership and legality of the title to the suit property was in issue.
41.
Similarly, it was urged that article 40(6) of the Constitution and section 26 of the Land Registration Act No 3 of 2012, create a positive legal prerequisite, entailing an inquiry to determine the validity of a title to land. The appellant submitted that the Environment and Land Court, is the constitutionally established forum for such inquiry, and faulted the two superior courts for usurping the constitutionally donated jurisdiction of the former.
42.
On the other hand, the respondent argued that the two superior courts had properly invoked their jurisdiction. Towards this end, it was contended that to effectively determine the parties’ respective claims, the courts had first to settle the question regarding the validity of title over the suit property. Moreover, the Attorney General urged that the appellant had departed from its pleadings before the superior courts and was seeking for the first time, the interpretation of what amounts to a legally established process under article 40(6) of the Constitution.
43.
For us to dispose of the first issue in the face of the two contrasting views, it is important to briefly revisit the procedural environment, that preceded the operationalization of the Environment and Land Court. The court is established under article 162(1) and (2) (b) of the Constitution of 2010 . It was operationalized by the Environment and Land Court Act No 9 of 2011. After its commencement, vide Gazette Notice No 16268 dated November 9, 2012, the then Chief Justice issued the ‘Practice Directions on Proceedings Relating to the Environment and the Use and Occupation of, and Title to Land’. It was directed that all matters pending judgment and ruling before the High Court, arising from proceedings relating to the environment and the use and occupation of, and title to land, would be concluded by the High Court. Similarly, all part-heard cases pending before the High Court, relating to the same proceedings would be heard and determined by the same court.
44.
Upon perusal of the record before us, we note that the appellant’s suit before the High Court was instituted by way of a plaint dated March 10, 2011 and filed on even date. Consequently, the trial court heard and determined the dispute through its Judgment delivered on July 4, 2011. From the chronology of events, we entertain no doubt that, at the time the trial court heard and determined the suit, the Environment and Land Court was not operational.
45.
In any event, the Practice Directions unequivocally directed the High Court to hear and determine pending proceedings on environment and land matters as specified in the foregoing paragraph 43 of this judgment. In the circumstances, we see no reason to fault the trial court on grounds of jurisdictional over-reach.
46.
We now turn focus to the contention by the appellant to the effect that by determining the appeal before it, the Court of Appeal had in reality transformed itself into a court of first instance. It was the appellant’s submission that at the time the appellate court handed down its judgement, the ELC Civil Case No 282 of 2012 was pending before the Environment and Land Court.
47.
Upon perusal of the record before the Environment and Land Court, we note that by a consent dated March 25, 2021, the proceedings in ELC No 282 of 2012 were withdrawn, and the consent adopted as an order of the said court on June 30, 2021. Consequently, as of February 4, 2022 when the appellate court delivered its Judgment, the said proceedings had long been concluded. In similar vein therefore, we see no reason to fault the appellate court’s exercise of jurisdiction to determine the appeal. There was nothing pending at the Environment and Land Court which could have necessitated the Court of Appeal to down its tools.
ii.Whether the appellant has a valid title to the suit property;
48.
Two central sub-issues fall for our determination, namely, the legal status of the suit property, and whether the appellant acquired a valid title to the same. It was the appellant’s case that upon payment of Kshs 12,000,000, it acquired the suit property from Renton Company Limited for a term of 99 years from 2000. It further argued that it was the duly registered proprietor, having been issued with a certificate of title on April 26, 2001.
49.
The respondent disputed this assertion and contended that the appellant did not acquire a good title from Renton Company limited. The Attorney General maintained that the letter of allotment, upon which the appellant’s title is premised, was silent on whose behalf the Commissioner of Lands was making the allotment; at the time of its transfer to the appellant, the conditional thirty days acceptance period had lapsed; the suit property was not un-alienated government land and therefore the Commissioner of Lands lacked the authority to alienate it. The Attorney General further submitted on “without prejudice” basis that, at the time of allotment, the suit property was occupied by DoD and was unavailable for allocation. In the alternative, the respondent urged that there were irregularities in the process leading to the registration of the property in the appellant’s name;and had the appellant conducted due diligence, it would have ascertained DoD’s possession and occupation at the time of purchase.
50.
For us to determine the legal status and validity of the title, we must inquire into the root title of the suit property.
iii.Alienated or un-alienated government land
51.
Article 62 of the Constitution defines ‘public land’ to include:
62 (1)
(a)
land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date; [Emphasis Added].
52.
The Government Lands Act (repealed), which was the Act in force at the effective date defined ‘unalienated government land’ in section 2 as follows;
“
unalienated Government land” means Government land which is not for the time being leased to any other person, or in respect of which the Commissioner has not issued any letter of allotment. [Emphasis Added].
section 3 of the Physical Planning Act, cap 286 defines unalienated land in similar terms.
53.
This court in Kiluwa Limited & another v Business Liaison Company Limited & 3 others, (Petition 14 of 2017); [2021] KESC 37 (KLR) had this to say about un-alienated government land:
“
(55)
A number of conclusions can be derived from the foregoing provisions as quoted. Firstly, un-alienated government land is public land within the context of article
62
of the Constitution and the Government Lands Act (repealed). This notwithstanding the fact that, the expression “Public Land” only came to the fore with the promulgation of the 2010 Constitution. What article 62 of the Constitution does is to clearly delimit the frontiers of public land by identifying and consolidating all areas of land that were regarded as falling under the province of“public tenure”. The retired constitution used the term“government” instead of “public” to define such lands”.
54.
On the basis of the parties’ submissions and the evidence on record, it is clear to us that on February 21, 1964, a parcel of land known as Embakasi LR No 113xx (Original No 41/3) measuring 5639 acres was alienated and a freehold title granted to Kayole Estates Limited. This parcel of land was later transferred to the defunct Nairobi City Council for valuable consideration by a transfer registered on November 22, 1971. In 1973, the parcel of land was subdivided yielding to, amongst others, the suit property.
55.
In view of these dealings, could the suit property retain the status of “unalienated government land”? The answer to this question must be in the negative considering the fact that once an individual or entity acquires any un- alienated government land, or other land for that matter, consequent upon registration of title, in accordance with the provisions of the applicable law, such land transmutes from “public” to “private” land. Article 64(a) of the Constitution defines private land as consisting of ‘registered land held by any person under any freehold tenure’. In Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others, Civil Appeal No 79 of 2007; [2015] eKLR, the Court of Appeal held:
“
… the legal effect of registrations made in 1907 and 1911 was to convert the suit property at that time from un-alienated government land to alienated land with the consequence that the suit property became private property and moved out of the ambit and confines of the Government Land Act. …” [Emphasis Added].
We consider the foregoing statement to be an accurate illumination of the meaning of “private land”.
56.
Consequently, we find that upon alienation to Kayole Estates Limited in 1964, the suit property was converted from un-alienated government land to private freehold land. There being no question as to the regularity and legality of the process by which the said land was alienated in favour of Kayole Estates Ltd, we find and hold that the same was effectively divested from the purview of the regulatory regime of the Government Lands Act (now repealed). The Commissioner of Lands could therefore not have had any authority, to allocate the suit property to any other person as he purported to have done. By the same token, there being no evidence on record to the contrary, we find that the defunct Nairobi City Council acquired valid title to the suit property from Kayole Estates ltd through purchase. Where does our finding leave Renton company ltd? It is worthy restating that the said company could only have acquired valid title from the Nairobi City Council, and not the commissioner of lands who had long been divested of authority to allocate the same.
57.
The respondent also challenged the letter of allotment on grounds that at the time of its transfer, the conditional thirty (30) days acceptance period had lapsed. As it turned out, the letter was also silent on whose behalf the commissioner of lands had made the allotment. Noting that the Commissioner of Lands by an allotment letter dated December 19, 1999 purported to allocate the suit property to Renton Company Limited. Thereafter, by a letter dated April 25, 2001, Renton Company Limited sought approval from the Commissioner of Lands to transfer the same to the appellant. The appellant’s ownership is traced back to this allotment Letter even if subsequently registered under the Registration of Titles Act cap 281 (Repealed) on April 26, 2001.
58.
So, can an allotment letter pass good title? It is settled law that an allotment letter is incapable of conferring interest in land, being nothing more than an offer, awaiting the fulfilment of conditions stipulated therein. In Dr Joseph NK Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others CA 60/1997 [unreported]; and in Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others HC Civil Case No 182 of 1992; [2008] eKLR, the superior courts restated this principle as follows:
“
It has been held severally that a letter of allotment per se is nothing but an invitation to treat. It does not constitute a contract between the offerer and the offeree and does not confer an interest in land at all ” [Emphasis added].
59.
The pronouncement in Gladys Wanjiru and Dr Joseph NK Arap Ng’ok (supra) has been echoed in various Environment and Land Court decisions post the 2010 Constitution, including; Lilian Wanjeri Njatha v Sabina Wanjiru Kuguru & another, Environment and Land Case No 471 of 2010; [2022] eKLR; John Elias Kirimi v Martin Maina Nderitu & 4 others, Environment and Land Suit No 320 of 2011; [2021] eKLR; and Kadzoyo Chombo Mwero v Ahmed Muhammed Osman & 11 others, Environment and Land Case No 42 of 2021; [2021] eKLR, to mention but a few.
60.
Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines. But even after the perfection of an allotment letter through the fulfillment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter. In Peter Wariire Kanyiri v Chrispus Washumbe & 2 others, Environment and Land Court Case No 603 of 2017; [2022] eKLR, Kemei, J held as follows:
“
[15].
In the case at hand, in the absence of any title registered in the name of the plaintiff, the court is unable to hold that the plaintiff is the registered proprietor of the land. This is because the letter of allotment lapsed within 30 days and the same is of no legal consequences” [Emphasis added].
61.
While we agree with the general tenor of the learned Judge’s foregoing pronouncement, we remain uncomfortable with his inference that the allotment letter was of no legal consequence solely because it had lapsed after 30 days. We must reiterate the fact that an allotment letter in and by itself, is incapable of conferring a transferable title to an allottee. Put differently, the holder of an allotment letter is incapable of transferring or passing valid title to a third party on the basis of the allotment letter unless and until he becomes the registered proprietor of the land consequent upon the perfection of the Allotment Letter. It matters not therefore that the allotment letter has not lapsed.
62.
Back to the facts of this case, the allotment letter issued to Renton Company Limited was subject to payment of stand premium of Kshs 2,400,000.00, annual rent of Kshs 480,000.00 amongst others. Moreover, the letter was granted on condition that Renton Company Limited would accept it within thirty (30) days from the date of the offer, failure to which it would be considered to have lapsed.
63.
While the allotment letter is dated December 19, 1999, Renton Company limited made the specified payments on April 24, 2001, one hundred and twenty- seven (127) days from the date of the offer. It is not in question that Renton had not complied with the terms and conditions of the allotment letter. Therefore, the letter ought to have been deemed as lapsed at the time it purported to transfer the same to the appellant. The respondent submitted that a letter of allotment does not confer any property rights unless it is perfected, failure to which it is rendered inoperative and of no legal import. We have already declared that an allotment letter, even if perfected, cannot by and in itself confer transferable title to the Allottee, unless the latter completes the process by registration. Therefore, the grim reality is that all transactions between Renton Company limited and the appellant were a nullity in law.
64.
What about the argument to the effect that the appellant was an innocent purchaser for value without notice? It is obvious by now that such argument cannot hold in view of our pronouncements regarding the transactions between Renton and the appellant. However, be that as it may, there is evidence on record in the form of correspondences and minutes, confirming that DoD had been granted access by the defunct municipal council and had taken possession of, and erected public infrastructure upon the suit property before the purported purchase. Of importance is the letter from the Commissioner of Lands to DoD, confirming that the latter was in occupation of the Property. Further, it is on record that the Ministry of Lands and Settlement was monitoring excision activities by NCC to ensure that the portion occupied by DoD was not affected. This letter is dated August 11, 1999, approximately one (1) year and eight (8) months before the impugned transfer. Therefore, if the appellant was a diligent purchaser, it ought to have at least known of this fact. An innocent purchaser for value would also denote one was aware of what they are purchasing by inspecting the suit premises. This takes us to the question of whether the appellant had visited the suit premises and if so, what was its impression of the military installations on the suit premises? The fact that the suit land was occupied must have sounded a warning of “buyer be aware” to the appellant. We therefore find that it was not an innocent purchaser for value entitled to orders for restoration or compensation.
iv.Whether DOD acquired a valid title to the property
65.
In as much as the appellant does not have a valid title to the suit property, DoD is similarly tainted. Although it has been able to prove that it has been in exclusive occupation and use of the Suit Property from 1986 to date, with the full knowledge and authority of NCC and the Commissioner of Lands, (see the various communication and correspondence between it, NCC and other stakeholders including an Internal Memo dated April 24, 1984, minutes of a meeting held on May 24, 1984, letter dated February 22, 1996 and letter dated August 11, 1999), there is nothing on record to prove that DoD ever acquired valid title to the suit property. Just as the Commissioner of Lands could not allocate the said land to Renton for reasons already canvassed, so also was he equally hamstrung in relation to DoD.
66.
The court takes cognizance of ELC Civil Case No 282 of 2012, filed by the defunct Nairobi City County seeking; rescission of the letter of allocation dated October 7, 1997; delivery of vacant possession of LR. No 41/33 Embakasi; in the alternative to compensation in the sum of Kshs 61,500,000,000; interest; any other reliefs the court deemed fit to grant. Moreover, we note that during the main hearing of this case, the learned state counsel, representing the Attorney General, submitted that Parliament had taken over the dispute between NCC and DoD with a view to settling the matter outside the court process.
67.
Although, ELC Civil Case No 282 of 2012 was duly withdrawn in line with the provisions of articles 6(2) and 189(3) of the Constitution as well as the Inter- governmental Relations Act No 2 of 2015, the withdrawal neither determined ownership nor passed good title to the Suit Property or a portion thereof to DoD. As matters currently stand therefore, title to the suit property, remains vested in Nairobi County which is the legal successor to the defunct Nairobi City Council.
v.Admissibility of evidence
68.
The appellant faults the Court of Appeal for expunging documents on pages 32, 52 and 21, 22 23-27, 28-29, 30, and 33 of its record and supplementary record respectively. It urged that the appellate court crafted and imposed an asymmetrical application of section 80 of the Evidence Act. It also contended that once the Attorney General had been granted leave to introduce confidential documents, it too had an automatic corresponding right to adduce similar evidence obtained from the same chains of communication. The appellant urged that the asymmetrical application contravened article 50(1) of the Constitution and amounted to suppression of evidence. In response, the Attorney General submitted that public documents within the meaning of section 79 of the Evidence Act must be produced in accordance with sections 68(1)(e)(f), (2)(c) and 80 of the Evidence Act, and the non-compliance rendered the evidence inadmissible.
69.
We agree with the Court of Appeal’s reasoning that the impugned documents were public documents within the meaning of section 79 of the Evidence Act requiring certification in accordance with sections 68(1)(e)(f), (2)(c) and 80 of the Evidence Act. Moreover, we are guided by this court’s decision regarding evidence unlawfully procured, in Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others; Presidential Election Petition No 4 of 2017, [2017] eKLR, wherein we held as follows:
“
(22)
……. We also recognize that information held by the State or state organs, unless for very exceptional circumstances, ought to be freely shared with the public. However, such information should flow from the custodian of such information to the recipients in a manner recognized under the law without undue restriction to access of any such information.
(23)
Further, a duty has also been imposed upon the citizen(s) to follow the prescribed procedure whenever they require access to any such information. This duty cannot be abrogated or derogated from, as any such derogation would lead to a breach and/or violation of the fundamental principles of freedom of access to information provided under the Constitution and the constituting provisions of the law. It is a two-way channel where the right has to be balanced with the obligation to follow due process.” [Emphasis Added].
vi.Reliefs
70.
Having disposed of the issues framed, and having reached the conclusions we have, we are left with no option but to dismiss the Appeal. As regards costs, in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Pet No 4 of 2014; [2014] eKLR, this court held that it has the discretion to award costs to ensure that the ends of justice are met and that costs ordinarily follow the event.
71.
Having considered the history and nature of the case before us, it is our view that each party shall bear its own costs in the High Court, Court of Appeal, and this court.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/79/eng@2023-09-22
Petition 23 (E026) of 2022,Independent Electoral and Boundaries Commission v Chege (Petition 23 (E026) of 2022) [2023] KESC 74 (KLR) (12 September 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",12 September 2023,2023.0,Nairobi,Civil,Independent Electoral and Boundaries Commission v Chege,[2023] KESC 74 (KLR)               ,,"A. Introduction
1.
Before this Court is the Appeal dated August 8, 2022 and filed on even date. It is brought pursuant to article163(4) (a) of the Constitution, section 15 (2) of the Supreme Court Act, 2011 and rules 38 and 39 of the Supreme Court Rules, 2020. It challenges the decision of the Court of Appeal (Karanja, J Mohammed & Laibuta, JJA) in Civil Appeal No E255 of 2022. The impugned decision upheld the decision of the High Court (Mrima, J) in Constitutional Petition No E073 of 2022.
B. Background
i. At the High Court
2.
The appellantbefore this Court, through its Electoral Code of Conduct Enforcement Committee (hereinafter the ‘Committee’) instituted proceedings against the Respondent by its summons issued on February 11, 2022 following comments that she had allegedly made at a public rally at Isibuye area within Vihiga County on February 10, 2022 in contravention of Clause 6(a) and (i) of the Electoral Code of Conduct (hereinafter ‘the Code’). She was also served with a statement of breach detailing the alleged offensive utterances. According to the Appellant, the Respondent’s comments cast aspersions on the integrity of the General Elections 2017, and raised credibility questions on the Appellant’s capacity to deliver a free and fair election administered in an impartial, accurate and accountable manner as envisaged under article 81(e) of the Constitution. Those remarks reproduced verbatim were as follows:
“
Mnajua kule Central nimeskia wengine wakisema hapa tuliwaibia… Kuna ka ukweli kidogo … Lakini … kama tulijua kuiba … si hata hii tutafanya nini … Wanafikiria wao ndo wajanja…”
3.
Subsequently, the respondent was summoned to appear before the Committee on February 15, 2022, for hearing of the complaint against her. She appeared before the Committee in obedience to the summons but raised a preliminary objection challenging inter alia, the jurisdiction of the Committee to hear the matter. By its ruling delivered on the same date, the Committee dismissed the Respondent’s preliminary objection.
4.
Dissatisfied with the Committee’s ruling, the Respondent filed High Court Constitutional Petition No E073 of 2022, Sabina Wanjiru Chege v Independent Electoral and Boundaries Commission (the High Court Petition) challenging the proceedings, together with an application for conservatory orders staying further proceedings. She urged that the Committee violated her fundamental rights protected under articles 1(1), 2(1) & (4), 3(1), 20(1), 22, 23, 24(1)(a) - (e), 27, 33, 35 (1) & (3), 47(1) & (2) and 50 of the Constitution and sought orders summarized as follows:
a.
Certiorari quashing the statement of breach, summons and proceedings by the Committee against the respondent;
b.
Certiorari quashing the Ruling by the Committee made on February 15, 2022 dismissing the respondent’s objection;
c.
A declaration that the summons and statement of breach both dated February 11, 2022, and served by the Committee, were unlawful and unconstitutional;
d.
A declaration that the failure by the Commission to publish the regulations contemplated under section109 (cc) and (ff) to prescribe regulations of the enforcement of the Second Schedule to the Elections Act is unlawful and unconstitutional;
e.
A declaration that clause 15(6) of the Second Schedule to the Elections Act, 2011, is unlawful as it was based on section 110(6) of the Elections Act, which section had been deleted vide section 25 (c) of Act No 36 of 2016;
f.
A declaration that the decision by the Commission to invoke article 252 of the Constitution to commence a hearing into alleged breaches by the respondent on violations of Clause 6(a) and 6(i) was unlawful and unconstitutional;
g.
A declaration that, by claiming that it was seized of a report and materials in respect of the complaint against the respondent, the decision by the Commission to commence investigations suo motu as stated in its ruling of February 15th, 2022 was unlawful and illegal;
h.
an order of prohibition restraining the Committee from enforcing the Second Schedule of the Elections Act without first prescribing the regulations contemplated under section 109(cc) and (ff) of the Act, in accordance with the Constitution;
i.
A conservatory order restraining the appellantfrom acting unlawfully and unconstitutionally, before drafting the regulations, conducting public participation, and submitting the regulations to Parliament as per the law and the Constitution;
J
A conservatory order restraining the Appellant from violating the respondent’s aforementioned fundamental rights and freedoms.
5.
The respondent specifically faulted the appellant’s dismissal of her preliminary objection, wherein she had raised concerns, regarding its refusal to furnish her with a  of its investigation report, and other relevant documents.
6.
In opposing the Petition, the appellant asserted that it had acted lawfully. It contended that the respondent was bound by its Code of Conduct specifically by virtue of the provisions of paragraphs (1) and (2) thereof, being an elected Woman Representative of Murang’a County and a member of the Jubilee Party Parliamentary Group. Furthermore, the appellant urged that pursuant to article 252(1)(a) and (d) of the Constitution, as read with section 107 of the Elections Act, it was empowered to: conduct its own investigations, issue summons to persons suspected to have breached the Code, examine them and arrest those suspected of having committed election offences. It was also the appellant’s argument that its chairperson, had rightfully designated himself as the chairperson of the Committee, as he was the only member who by law, possessed qualifications required to chair it; that the Committee considered the preliminary issues raised by the respondent before dismissing them; and that the Rules of Procedure on Settlement of Disputes had already been enacted vide Legal Notice No 139 of 2012 pursuant to provisions of the Elections Act.
7.
In its consideration of the petition, and application for conservatory orders which were determined together, the trial court framed six questions for determination, i.e,: whether the Committee had jurisdiction to entertain violations of the Code; whether the Code was in force and if so, whether it was binding upon the respondent; whether the appellant’s chairpersonerred in chairing the sittings of the Committee; whether the appellanthad formulated regulations to guide the proceedings before the Committee; whether the proceedings against the respondentbefore the Committee were in violation of her afore-stated fundamental rights; and whether the respondent was entitled to any reliefs.
8.
In a Judgment delivered on April 4, 2022, the trial court (Mrima, J) allowed the respondent’s Petition, effectively quashing the summons and statement of breach levelled against her, as well as the proceedings conducted before the Committee. The trial court determined that the Committee was unconstitutional, null and void ab initio for being in contravention of articles 2(4), 3(1), 249 and 252 of the Constitution. It also issued orders quashing parts of sections 7, 8, 10 and 15 of the Code under the Second Schedule of the Elections Act; and portions of rules 15(4) and 17(1) and (2) of the Rules of Procedure on Settlement of Disputes establishing and granting powers to the Committee to summon witnesses, and conduct hearings of complaints based on allegations of breach of the Code.
9.
On the issue as to whether the Committee had jurisdiction to entertain violations of the Code, it was the court’s determination that article 252 of the Constitution, prescribes that the commissions and independent offices are vested with the powers to conduct investigations and issue summons to witnesses to assist in such investigations, namely: the Kenya National Human Rights and Equality Commission, the Judicial Service Commission, the National Land Commission and the Auditor General. The trial court found that the Appellant could conduct investigations but had no jurisdiction by itself or through the Committee to summon witnesses or conduct any hearings in relation to a complaint of the breach of the Code or at all. Moreover, the court held that the Committee was an unconstitutional outfit, lacking any legality.
10.
Regarding the issue as to whether the code was in force and if so, whether it was binding upon the respondent, the trial court underscored the fact that paragraph 18 of the Code had operational timelines for its application, which in this case was from the date of publication of a notice of Election, until the swearing in of newly elected candidates. In addition, the court determined that the appellant did not adduce evidence to confirm that the respondent or the Jubilee Party to which she belonged, had subscribed to the Code for the election period that ran from January 20, 2022 to the declaration of results on August 9, 2022, hence there was no basis to hold that the Code was binding upon her.
11.
Regarding the issue as to whether the appellant’s chairperson erred in chairing the sittings of the Committee, the trial court held that since the Committee was a nullity ab initio, it did not matter whether the appellant’s chairperson rightly chaired the Committee or otherwise, as he was riding on a ‘constitutionally dead horse.’ For this reason, the court declined to make a pronouncement on the issue stating that it had been overtaken by events, hence a determination on it would serve no purpose.
12.
On whether the appellant had formulated regulations to guide the proceedings before the Committee, the trial courtdetermined that the respondent’s claim that the appellant had failed to publish regulations envisaged under the Code for its enforcement was misconceived; for the reason that it was clearly demonstrated that the Rules of Procedure had been promulgated as subsidiary legislation as Legal Notice No 139 of 2012.
13.
As regards the issues whether the proceedings against the respondent before the Committee were in violation of her fundamental rights and if she was entitled to any of the reliefs sought, the trial Court determined that article 2(4) of the Constitution was violated to the extent that the Committee was contrary to article 252 of the Constitution; article 3(1) was contravened by the appellant’s failure to uphold the Constitution; article 27(1) was infringed for not according the respondent equal protection and benefit of the law; article 35 was contravened as the respondent was not provided with all the necessary evidence against her to be able to properly prepare for her defence having been served with the alleged footage from the Communications Commission of Kenya by a letter dated February 15, 2022, the date that the proceedings began. In the circumstances, articles 47 and 50 of the Constitution were also contravened. Consequently, the Petition succeeded, and the trial court issued orders summed up as follows:
a.
A declaration that the appellant’s Code and Committee contravened articles2(4), 3(1), 249 and 252 of the Constitution and were null and void ab initio;
b.
A declaration and orders of certiorari quashing the Committee’s summons, statement of breach, and proceedings against the respondent;
c.
Orders of certiorari quashing parts of sections 7, 8, 10 and 15 of the Code under the Second Schedule of the Elections Act as well as parts of rules 15(4) and 17(1) and (2) of the Rules of Procedure on Settlement Disputes establishing and granting powers to the Committee to summon witnesses and conduct hearings of complaints based on allegations of breach of the Code.
ii. At the Court of Appeal
14.
Aggrieved by this judgment, the appellantmoved the Court of Appeal vide Civil Appeal No E255 of 2022. The appellate court framed the following five issues for determination:
i.
Whether the respondentwas bound by the Code;
ii.
Whether the Committee had jurisdiction to summon the respondent, hear the alleged complaint against her, make findings thereon and possibly impose sanctions against her;
iii.
Whether the impugned parts of the Code were unconstitutional;
iv.
Whether the appellantwas entitled to the reliefs sought in the appeal; and
v.
What remedies were appropriate under the circumstances, including orders as to costs.
15.
In a Judgment delivered on July 15, 2022, the Court of Appeal (Karanja, J Mohammed & Laibuta, JJA) dismissed the appeal for being unmeritorious, in effect affirming the High Court’s decision. On the question, whether the respondent was bound by the Code, the Court of Appeal observed that the legal force of the Code is dependent on actual subscription by political parties thereto, and professed candidates for elective positions at the national and county levels as provided in section 110(1) of the Elections Act and paragraphs (1) and (2) of the Code. The appellate court noted that section 18 of the Elections Act states that the Code applies in the case of a general election, from the date of publication of a notice 0f election until the swearing in of newly elected candidates. Consequently, it reasoned that the Code was not binding on the respondent on account of: hernot being a candidate in the August 9, 2022 General Elections at the time of the Committee’s proceedings and at all material times thereafter, the non-joinder of her political party in the proceedings before the Committee through which evidence of subscription would have been led and the non-disclosure of her being an official of that party, if that was the case. The court posited that the fact that the respondent was not bound by the Code divested the Committee of the jurisdiction and power to enforce the same against her.
16.
As regards the issue whether the Committee had jurisdiction to summon the respondent, hear the alleged complaint, make findings and impose sanctions against her, the court upheld the High Court’s finding that the appellantwas not one of the specific commissions and entities under article 252(3) of the Constitution vested with the power to issue summons and examine witnesses.
17.
On the issue whether the impugned parts of the Electoral Code were unconstitutional, the appellate court agreed with and affirmed the High Court in entirety in its decision that the Committee was unconstitutional. The appellate court stated that to the extent that the Elections Act purported to confer on the Committee substantive prosecutorial and judicial or quasi-judicial powers not availed to the appellant under the Constitution, the impugned provisions were inconsistent with the Constitution by virtue of article 2(4). Further, it was an infringement on both substantive and electoral due process and at variance with the Latin maxim nemo judex in causa sua, ‘no one should be a judge in their own cause’. In the same vein, the court surmised that the wielding by the Commission of policing, prosecutorial and quasi-judicial powers offended the immutable principles of due process and violated the rule against bias.
18.
Arising from the foregoing, the appellate court held that the appellant was not entitled to the reliefs sought and dismissed the appeal with costs to the respondent.
iii. Proceedings at the Supreme Court
19.
Aggrieved by the Judgment in its entirety, the appellant has filed the instant appeal premised on five grounds reproduced below. That the Court of Appeal misapplied and misapprehended the Constitution by:
i.
Finding that paragraph 15 of the Second Schedule to the Elections Act is unconstitutional because it empowered the appellant to summon witnesses; and that the appellant “cannot summon any witness neither can it conduct any hearing of such a complaint” ostensibly because it is not one of the Commissions and Independent Offices empowered by article 252(3) of the Constitution to issue summons to witnesses yet the provisions of article 88(4)(e) of the Constitution empowers the appellant to “settle all electoral disputes” and that the disputes relating to breaches of the Electoral Code of Conduct are envisaged by the said article;
ii.
Finding that ‘the Electoral Code of Conduct Enforcement Committee is an unconstitutional outfit and lacks any legality’ whereas article 88(4)(e) of the Constitution empowers the appellant to settle electoral disputes;
iii.
Interpreting the provisions of article 252(3) of the Constitution to mean that only the Commissions and the Independent Office listed therein have the power to summon witnesses yet the Constitution, in the case of the appellant, under articles 82, 84 and 88(5) empowers Parliament to enact legislation for better performance of the predicate constitutional responsibilities. In effect, the Court of Appeal has also by parity of reasoning, paved the way for annulment of the power to issue summons upon witnesses conferred on other Chapter 15 institutions which are not listed in article 252(3). This includes the National Police Service Commission, the Salaries and Remuneration Commission, the Teachers Service Commission, the Ethics and Anti- Corruption Commission amongst others;
iv.
Failing to consider that article 88(4)(j) and (5) of the Constitution mandates the appellant to prescribe a code of conduct for all parties and candidates participating in an election and further that the Second Schedule to the Elections Act is a derivative of articles 82(2), 84, 86(d) and 88(5) of the Constitution. By establishing the Electoral Code of Conduct Enforcement Committee and conferring powers upon it to issue summons to persons who are alleged to have breached the Code, Parliament was merely fulfilling the aspirations of Chapter Seven of the Constitution; and
v.
Applying the wrong principles when construing or interpreting the Constitution by not construing the Constitution as one integrated document, each clause supporting each other and not destroying it and consequently rendering the Electoral Code of Conduct ineffectual and otiose. In effect, the Court of Appeal has allowed elections to be held in a manner which is not in consonance with the principles of the electoral system envisaged in article 81(e)(ii) which requires that an election be conducted in a free and fair manner which is
“free from violence, intimidation, improper influence or corruption”
as well as the responsibility placed on the appellantby article 86(d) which requires it to put in place
“appropriate structures and mechanisms to eliminate electoral malpractice”.
20.
The appellantseeks the following reliefs, that:
a.
The instant Petition (Appeal) be allowed.
b.
That the Judgment of the Court of Appeal dated July 15, 2022 in Civil Appeal No E255 of 2022 and the Judgment of the High Court dated April 4, 2022 in Constitutional Petition No E073 of 2022 be set aside.
c.
Such consequential and appropriate reliefs, further or other order(s) as this Court may deem just and expedient in the interest of justice.
d.
That the costs of this Petition be provided for.
21.
The respondenthas filed a Cross-Petition and response dated September 9, 2022 and filed on November 18, 2022 in opposition to the Appeal and associating herself with the decisions of the superior courts below. She seeks the following declarations:
a.
That an attempt to turn IEBC into a quasi-judicial body is unconstitutional. As an independent elections management body, IEBC must remain impartial, neutral, efficient and accountable for its actions and processes as envisaged in Article 81(e) of the Constitution;
b.
That clause 15(1-10) which turns IEBC into a quasi-judicial body is unconstitutional;
c.
That in the matter of electoral disputes as envisaged in the Constitution, IEBC should only be called into acting out of a trigger or complaint by a citizen or political party citing violations of the Electoral Code;
d.
That where the IEBC acts suo motu and investigates a breach, the only mechanism available for it is to invoke the provisions of clause 9, 10, 11 and 12 of the Electoral Code of Conduct;
e.
That clauses 7(a)(i) and (ii) and 8 of the Second Schedule to the Elections Act is unconstitutional in so far as it purports to confer to the Appellant powers to issue a formal warning, a fine as it determines, and the requirement for registration of the fine with the High Court. Such powers are not envisaged in the Constitution;
f.
That the envisaged committee on enforcement of the Electoral Code is illegal and in excess of the powers conferred to the IEBC in the Constitution;
g.
That the provisions of the Second Schedule purporting to establish a committee to enforce the Electoral Code, its composition and duties thereof are invalid and unconstitutional.
22.
The Cross-Petition and Response raises the following grounds:
i.
In the application of section 74 of the Elections Act disputes relating to nominations ought to be lodged with the appellant and determined within ten days.
ii.
The appellant acted as the complainant, purportedly investigated, arrived at the decision to charge, lodged the complaint with itself and purported to sit in trial of the respondent with a view to penalizing her contrary to the Constitution, the law and the principles of separation of powers and natural justice;
iii.
The respondent never subscribed to the Electoral Code as espoused in section 110 of the Elections Act for purposes of the general election in August 2022;
iv.
Clause 7(a)(i) and (ii) and 8 of the Second Schedule to the Elections Act is unconstitutional in so far as it purports to confer to the appellant powers to issue a formal warning, a fine as it determines, and the requirement for registration of the fine with the High Court. the Constitution mandates the appellant to develop the Electoral Code and not to enforce it;
v.
The provisions of Clause 15(1) – (10) of the Electoral Code in purporting to set up the Enforcement Committee and its purported composition and duties are unconstitutional, illegal and a violation of the principles of separation of powers;
vi.
The IEBC is not clothed with constitutional powers to summon any witness neither can it conduct any hearing of such a complaint on account of article 253(3) of the Constitution;
vii.
The provisions of article 88(4)(e) of the Constitution only empowers the appellant in a limited way, to settle electoral disputes arising from or relating to party primary or party nominations. It excludes election Petitions and disputes after declaration of election results;
viii.
Article 88(4)(j) confines the role of the appellantto the development of a code of conduct for candidates and parties contesting in an election. It makes no reference nor does it vest in the IEBC, the power to enforce and punish any breaches or violation of the Code of Conduct;
ix.
Article 88(4)(k) confines the appellant to ‘monitoring of compliance with the legislation required under article 82(1)(b) relating to nomination of candidates by political parties’;
x.
On the general functions of the Commission and holders of independent offices, article 252(1) restricts these commissions to conduct investigations on their own motion or on a complaint made by a member of the public and nothing more;
xi.
The second schedule to the Elections Act is not a derivative of articles 88(2), 84, 86(d) and 88(5) of the Constitution;
xii.
The Court of Appeal acted appropriately in declaring certain provisions of the Elections Act unconstitutional to the extent that they seek to make IEBC a complainant, an adjudicator over its own cause, an investigator and prosecutor in its own cause, besides sitting in trial over the very allegations it makes and investigates.
23.
The appellant, in its Rejoinder to Response to Appeal and Reply to Cross- Petition dated and filed on September 28, 2022, posits that the Cross-Petition is fatally defective as neither the Supreme Court Act nor the Supreme Court Rules contemplate the filing of a Cross-Petition to a Petition of Appeal and that having been lodged without a record of appeal as contemplated under rule 47(2)(b) of the Supreme Court Rules, the Cross-Petition is incompetent. It implores the Court to strike out the Cross-Petition and its supporting affidavit with costs. Nonetheless, the appellant reiterates its averments in the Petition of Appeal in its substantive response thereto.","E. Analysis
i. Whether the Appellant had jurisdiction to summon the Respondent, hear the alleged complaint against her and make findings thereon.
36.
It was the appellant’s argument that it is empowered under article 252(1)(a) of the Constitution, to conduct investigations on its own initiative or upon a complaint made by a member of the public. Moreover, the appellant argued that according to article 88(4)(e) of the Constitution, it is empowered to settle electoral disputes relating to or deriving from nominations but excluding electoral Petitions.
In the same mould, the appellantsubmitted that paragraph 15(4) of the Code, being a normative derivative of the Constitution, empowers it to summon a suspected or implicated offender of the Code. The appellant took issue with the superior courts’ declaration to the effect that it lacked jurisdiction. It contended that such a decision “stripping it of jurisdiction” would severely hamper the enforcement mandate of constitutional commissions, not listed in article 252(3) of the Constitution.
37.
On the other hand, the respondenturged that the appellantlacks the powers or jurisdiction to issue summons as it is not one of the Commissions listed under article 252(3) of the Constitution. Consequently, the respondent submitted that the provisions of paragraph 15(4) of the Code are an aberration as they offend the letter and spirit of the Constitution, specifically, articles 252(3) and 88(5) which circumscribe the powers to issue summons.
38.
It is not in doubt that the appellantis a constitutional Commission established under article 88(1) and further provided for under article 248(2)(c) of the Constitution. Under article 252, the general functions and powers of Commissions are set out as follows:
252.
General functions and powers
1.
Each commission, and each holder of an independent office—
a.
may conduct investigations on its own initiative or on a complaint made by a member of the public;
b.
has the powers necessary for conciliation, mediation and negotiation;
c.
shall recruit its own staff; and
d.
may perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by this Constitution.
39.
Guided by the above provisions, it is clear that the appellantis clothed with the powers to conduct investigations, either on its own initiative, or pursuant to a complaint made by a member of the public. The question that then arises is whether such powers entail the issuance of summons requiring appearance before the appellantor committees established under it as well as conducting hearings in the enforcement of the Code.
40.
It is instructive to take note of section 15 of the Electoral Code under which the appellant’s Enforcement Committee is established. Pursuant to section 15(4) to (7) thereof, the Committee is empowered to issue summons requiring attendance before it in the following terms;
15
…
4.
The Committee shall issue summons to the person, political party or referendum committee against whom a complaint has been received as having infringed the provisions of this Code and any other person who the Commission has reason to believe to have infringed the provisions of this Code to attend its meetings. The meetings will be convened at any place which the Committee may deem fit.
5.
In its proceedings, the Committee may examine the person summoned and may allow a person to have legal representation.
6.
The committee shall not be bound by the provisions of the Criminal Procedure Code or the Evidence Act in its proceedings.
7.
Every person who is summoned by the Committee and who attends the meetings of the Committee shall be accorded the right to be heard.
41.
Additionally, sections 7, 8, and 10 of the Code and rules 15(4) and 17 (1) and (2) of the Rules of Procedure on Settlement Disputes confer similar powers to the appellant, including the imposition of sanctions.
42.
Article 252(3) of the Constitution lists the Commissions and independent offices empowered to summon witnesses to include the; Kenya National Human Rights and Equality Commission; Judicial Service Commission; National Land Commission; and the Auditor-General.
43.
Both the Court of Appeal and High Court were of the view that article 252(3) of the Constitution, limits the power of constitutional Commissions and independent offices to issue summons to the above listed four. The two superior Courts concluded that since the appellant is not one of the four listed therein, any law or statutory instrument that bestows upon it the power to summon witnesses, runs contrary to the Constitution, and is therefore null and void to the extent of its inconsistency.
44.
It was the appellant’s further contention that pursuant to article 88(4)(e) of the Constitution, it is empowered to settle electoral disputes relating to or deriving from nominations, but excluding electoral Petitions. It further urged that this provision clothes it with jurisdiction to enforce the Code.
45.
The respondent submitted that the appellant had powers, to initiate investigations on its own motion, as long as it would not proceed to frame charges and transform itself into a trial tribunal. Moreover, she urged that article 88(4)(e) of the Constitution, only vests upon the appellant, the power to settle electoral disputes arising from party nominations, but not the power to conduct trials arising from breaches of the Code.
46.
The respondent further urged that the appellant’s functions and powers, must be exercised in accordance with the Constitution as per the edict in article 88(5) thereof. It was her case that article 86(d) of the Constitution, requires the appellant to only ensure that appropriate structures and mechanisms to eliminate electoral malpractice are put in place.
47.
In view of the foregoing submissions, we now turn to the task of determining whether, the appellantacted in excess of its constitutional mandate, by summoning, hearing the complaint against the respondent, and making a finding thereon. The following constitutional provisions of articles 84 and 88 are instructive in this regard:
“
84.
Candidates for election and political parties to comply with code of conduct.
In every election, all candidates and all political parties shall comply with the code of conduct prescribed by the Independent Electoral and Boundaries Commission.
…
88
…
(4)
The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament, and in particular, for –
…
e.
the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election Petitions and disputes subsequent to the declaration of election results; …
(j)
the development of a code of conduct for candidates and parties contesting elections”
48.
The object of the Code envisaged under article 88(4)(j) above, is set out in section 3 of the Second Schedule to the Elections Act as follows:
The object of this Code is to promote conditions conducive to the conduct of free and fair elections and a climate of tolerance in which political activity may take place without fear, coercion, intimidation or reprisals.
49.
This Court has on numerous occasions interpreted article 88(4)(e) of the Constitution to mean that IEBC is empowered by the Constitution to resolve pre- election disputes including nominations. Our pronouncements have largely been in the context of whether, an election court has jurisdiction to determine pre-election disputes, notwithstanding the provisions of article 88(4)(e) of the Constitution. However, they are quite instructive in the instant case as they shed light on the powers of the IEBC in summoning witnesses as well as conducting hearings in relation to complaints on breach of the Electoral Code.
50.
In Silverse Lisamula Anami v. Independent Electoral and Boundaries Commission & 2 others, SC Petition No 30 of 2018 [2019] eKLR where one of the issues for determination was “whether the election Court has jurisdiction to adjudicate over issues relating to the pre- election period, such as nomination and qualification of candidates, in view of article 88(4)(e) of the Constitution,” this court at paragraph 54 rendered itself thus:
“
54.
How do we resolve the apparent conflicting positions taken by the Court of Appeal and election courts? Our view is that articles 88(4)(e) and 105(1) and (3) must be read holistically and that whereas the IEBC and PPDT are entitled, nay, empowered by the Constitution and Statute to resolve pre-election disputes including nominations, there are instances where the election Court in determining whether an election is valid, may look to issues arising during the pre-election period only to the extent that they have previously not been conclusively determined, on merits, by the IEBC, PPDT or the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article 165(3) and (6) of the Constitution. Where a matter or an issue has been so determined, then the election Court cannot assume jurisdiction as if it were an appellate entity since that jurisdiction is not conferred on it by the Constitution.”
51.
In Sammy Ndung’u Waity v. Independent Electoral & Boundaries Commission & 3 Others, SC Petition No 33 of 2018, [2019] eKLR, one of the issues for determination was, “whether an Election Court has jurisdiction to determine pre-election disputes, including those relating to the nomination of candidates.” We emphasized the fact that the Constitution has to be interpreted holistically and purposively with regards to article 88(4)(e) of the Constitution. We noted that article 88(4)(e) of the Constitution constitutes part of the normative architecture for the resolution of pre-election disputes. We stated that this framework for dispute resolution came into existence after the promulgation of the 2010 Constitution. Prior to this, the jurisdiction to determine pre-election disputes, lay with the High Court sitting as an Election Court. At paragraphs 59 and 60 the Court held:
“
(59)
It is clear to us that the Constitution of 2010 and the resultant electoral law, deliberately set out, to delimit the institutional competencies for the settlement of all electoral disputes. In this regard, it donated jurisdictional authority to different judicial and quasi- judicial organs……
60.
Coming to pre-election disputes, including disputes relating to, or arising from nominations, the Constitution is clear. These are to be resolved by the IEBC (through its Committee on Dispute Resolution as provided for by section 12 of the enabling Act) or where applicable, by the Political Parties Disputes Tribunal. Where the Constitution or any other law establishes an organ, with a clear mandate for the resolution of a given genre of disputes, no other body can lawfully usurp such power, nor can it append such organ from the pedestal of execution of its mandate. To hold otherwise, would be to render the constitutional provision inoperable, a territory into which no judicial tribunal, however daring, would dare to fly.”
52.
To ensure that article 88(4)(e) of the Constitution was not rendered inoperable, while at the same time preserving the efficacy and functionality of an election Court under article 105 of the Constitution, the Court developed the following principles at paragraph 68:
“
(i)
all pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the IEBC or PPDT, as the case may be, in the first instance;
ii.
where a pre-election dispute has been conclusively resolved by the IEBC, PPDT, or the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article165 (3) and (6) of the Constitution, such dispute shall not be a ground in a Petition to the election court;
iii.
where the IEBC or PPDT has resolved a pre-election dispute, any aggrieved party may appeal the decision to the High Court sitting as a judicial review court, or in exercise of its supervisory jurisdiction under article 165(3) and (6) of the Constitution; the High Court shall hear and determine the dispute before the elections, and in accordance with the Constitutional timelines;
iv.
where a person knew or ought to have known of the facts forming the basis of a pre-election dispute, and chooses through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute shall not be a ground in a Petition to the election Court;
v.
the action or inaction in (iv) above shall not prevent a person from presenting the dispute for resolution to the High Court, sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article 165(3) and (6) of the Constitution, even after the determination of an election Petition;
vi.
in determining the validity of an election under article 105 of the Constitution, or section 75(1) of the Elections Act, an election court may look into a pre-election dispute if it determines that such dispute goes to the root of the election, and that the petitioner was not aware, or could not have been aware of the facts forming the basis of that dispute before the election.”
53.
In Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others; Ahmed Ali Muktar (Interested Party) Petition No 7 of 2018 [2019] eKLR, the court restated the relevance of article 88(4)(e) of the Constitution in the clearly established constitutional mechanisms for resolving pre-election disputes. The court observed at paragraph 72:
“72 What are we to make of a situation where a contestant ignores the Constitution, drags an entire County through a gruelling election, only to turn around and intone that his rival was not qualified to vie in the first place? Is an election court to assume jurisdiction over such a dispute in such circumstances? We think not. If we were to allow contestants, or any other person, to consciously incubate a dispute, bypassing the Constitution, and originating it at an election court, that would surely render article 88(4)(e) of the Constitution inoperable. For if one can originate any dispute at an election court, why bother with the IEBC? The IEBC, in relation to election disputes, would surely become otiose! It is in this regard that we developed principle number (iv) hereinabove, which states that:
“Where a person knew or ought to have known of the facts forming the basis of a pre-election dispute, and chooses through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute shall not be a ground in a Petition to the election court.”
54.
It is therefore evident that article 88(4)(e) of the Constitution is clear and without ambiguity that the IEBC is tasked exclusively with the responsibility to entertain disputes arising from nominations and conclusively determine them.
55.
We are also alive to our decision in Alnashir Popat & 7 others v Capital Markets Authority, Pet No 29 of 2019 [2020] eKLR, where we were grappling with the propriety of the dual statutory mandate granted to the Respondent therein as the investigator and enforcer of capital markets infractions in Kenya. We appreciated the social and historical background leading to the enactment of the Capital Markets Act (CMA Act). We noted that to meet its objectives, the CMA Act section 11(3) of the CMA Act grants the Capital Markets Authority (CMA) wide powers to enable it instill discipline upon any errant player, with a view to regulating and facilitating the development of an orderly, fair and efficient capital market in Kenya, in line with the preamble to the Act. We observed in paragraphs 50 &51 that:
“
[50]
As the Canadian Supreme Court later stated in the case of Brosseau v Alberta Securities Commission, [1989] 1 SCR 301, “Administrative tribunals are created for a variety of reasons and to respond to a variety of needs.” In the case of securities commissions, that courts added, “By their nature, such commissions [read tribunals] undertake several different functions. They are involved in overseeing the filing of prospectuses, regulating the trade in securities, registering persons and companies who trade in securities, carrying out investigations and enforcing the provisions of the Act.”
(51)
Such bodies will therefore have repeated dealings, in both administrative or adjudicative capacities, with the same parties. It is for this reason and to achieve the efficiency required in the operations of the securities markets, that the legislatures more often than not, allow for an overlap of functions which in normal judicial proceedings would be kept separate.” (emphasis ours)
We agreed with the respondentin that matter, at paragraphs 54 & 55 that:
“
for purposes of efficiency and in the carrying out of the objective of the CMA Act, especially in the expeditious disposal of disputes that arise in the operations of the capital markets, the functions set out in section 11(3)(cc)(h) cannot be performed by separate bodies. To fragment the discharge of those functions will in our view, lead to disputes dragging for years on end and thus defeating one of the crucial objectives of the CMA Act: efficiency. As such, these functions have, as of necessity, to be discharged by one body hence the overlap in the mandate granted to CMA.
55.
In the circumstances, we find and hold that section 11(3)(cc) & (h) of the CMA Act is not unconstitutional. The overlapping mandate does not per se render the Section unconstitutional.”
56.
We note that the Elections Act in its Second Schedule in section 15(4) as reproduced in earlier parts of this Judgment empowers the appellant’s Enforcement Committee to issue summons requiring attendance before it. Further, the Rules of Procedure on Settlement Disputes confer similar powers to the appellant, including the imposition of sanctions. This Court has been categorical that the Elections Act and the Regulations thereunder are normative derivatives of the principles embodied in articles 81 and 86 of the Constitution, and that in interpreting them, a Court of law cannot disengage from the Constitution. (Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Application No 5 of 2014 [2014] eKLR at para 77; Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Petition No 2B of 2014 [2014] eKLR at paras 234, 243 and 244).
57.
Thus, we are of the view that the Elections Act and the Electoral Code of Conduct therein are deliberately designed to enable the IEBC to perform its constitutional roles notably in articles 84, 88 (4) (e), 88(5), and 252(1) of the Constitution.
58.
It, therefore, goes without saying that this courtconsistently emphasizes the importance of adhering to the mechanisms and procedures of dispute resolutions provided by the law. As earlier illustrated, we have been quite consistent that the IEBC can conclusively determine pre-electoral disputes. Settling electoral disputes furnishes the IEBC with all requisite attendant powers to wit; conducting investigations, summoning witnesses, hearing complaints and making determinations thereof. This overlapping mandate is exceptional because it is authorized by statute and therefore is not unconstitutional. As such, the overlap does not foul the principle of natural justice, nemo judex in causa sua (no man should be a judge in his own cause).
59.
Noting that the Electoral Code of Conduct is designed to enable the IEBC to perform its constitutional and statutory mandate, the appellantis empowered to enforce the Code of Conduct through the issuance of summons and conducting trial proceedings. To find otherwise would be to hamper IEBC’s constitutional mandate. This finding also answers the second issue for determination, that indeed, the Electoral Code of Conduct is constitutional.
60.
We, therefore, cannot agree with the superior courts below that IEBC acted in excess of jurisdiction, by issuing summons to and conducting hearings, pursuant to which it meted sanctions against the respondent. How else could IEBC conclusively resolve this matter? We are persuaded by the appellantthat it has jurisdiction to summon witnesses and to conduct hearings in relation to a complaint of breach of the Electoral Code pursuant to article 88(4)(e) of the Constitution in complement with article 252(3) of the Constitution. Thus, we remain faithful to the edict that a Constitution must be interpreted purposively and holistically and as an integrated whole, each clause supporting the other and not destroying it.
iii. Whether the Electoral Code of Conduct was binding upon the Respondent.
61.
The appellant contends that the Code was binding upon the respondent in accordance with section 110 of the Elections Act as read with paragraph 1(2) of the Code. This is denied by the respondent who urges that she did not offer herself for elective office and could not have subscribed to the Code in 2022 as she was not a candidate.
62.
The Elections Act in instructive on this issue. Section 110 provides:
“
110.
Electoral code of conduct
1.
Every political party and every person who participates in an election or referendum under the Constitution and this Act shall subscribe to and observe the Electoral Code of Conduct set out in the Second Schedule in such manner as the Commission may, subject to paragraph 6 of that Schedule, determine.
2.
A political party that is eligible to nominate candidates under the Constitution, this Act or any other written law shall not be eligible to contest in any election unless the political party and the candidate have subscribed to the Electoral Code of Conduct referred to in subsection (1).
63.
The second Schedule of the Elections Act in sections 1 & 2 provide:
1.
This Code shall be subscribed to by—
a.
every political party participating in the election of a president, a member of Parliament, a county governor, a member of a county assembly;
b.
every candidate; and
c.
every leader, chief agent, agent or official of a referendum committee.
2.
This Code shall, in so far as it is applicable, bind the Government and every political party, leader, office bearer, agent and member of a political party or a person who supports a political party, and every candidate nominated under the electoral laws for any election.
64.
Article 84 of the Constitution mandates all candidates and political parties to comply with the Code of Conduct prescribed by IEBC. It is clear from the Constitution and the above provisions of the Elections Act, that it is mandatory for political parties, candidates, and members of the referendum committees who participate in an election or referendum under the Constitution to comply and subscribe to the Electoral Code.
65.
Now was this Code binding on the respondent? She made the alleged utterances on February 10, 2022. We note that she was not a candidate during that electoral period. However, at the respective time, the appellantavers in its pleadings that she was a member of the Jubilee Party and that Jubilee Party was participating in the 2022 general elections. If this was indeed the case, it would mean that she was bound by the Electoral Code. However, we note that the Appellant other than stating this ground in its pleadings, they did not adduce any evidence to confirm that indeed the Jubilee Party subscribed to the Electoral Code for the election period which time was running from the January 20, 2022 to the declaration of the results of the general election that were held on August 9, 2022. We note that Jubilee party was also not a party in this cause. Neither can we glean from the record that the appellantadduced proof that respondentwas either a member or official of the Jubilee Party. Due to the inconclusive nature of the evidence on this, we find that the respondentcannot be found liable in the instant case.
",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/74/eng@2023-09-12
Application E011 of 2023,Kaluma v NGO Co-ordination Board & 5 others (Application E011 of 2023) [2023] KESC 72 (KLR) (Civ) (12 September 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",12 September 2023,2023.0,Nairobi,Civil,Kaluma v NGO Co-ordination Board & 5 others,[2023] KESC 72 (KLR)               ,,"a. Introduction
1.
The applicant, George Peter Kaluma, filed a notice of motion dated March 9, 2023 seeking the review and setting aside of the Judgment of this court delivered in NGO Coordination Board v Eric Gitari & others, SC Petition No 16 of 2019 on February 24, 2023. We hasten to point out at the outset that the applicant was neither a party to the appeal before the Supreme Court nor was he a party when the matter was heard and determined by both the High Court and Court of Appeal.
b. Litigation Background
i. Before the High Court
2.
The 2nd respondent filed Constitutional Petition No 440 of 2013 before the High Court, seeking inter alia, a judicial interpretation of the words ‘every person’ in article 36 of the Constitution to include all persons living within the Republic of Kenya despite their sexual orientation. He further prayed for a declaration that the 1st respondent had contravened the provisions of article 36 of the Constitution in failing to accord just and fair treatment to gay and lesbian persons living in Kenya seeking registration of an association of their choice. Lastly, he sought an order of mandamus directing the 1st respondent to comply with its constitutional duties under articles 27 and 36 of the Constitution and to register his organization as provided for under the Non-Governmental Organizations Co-ordination Act (NGO Act).
3.
The 1st respondent opposed the petition on grounds that the same was premature because internal remedies under the law had not been exhausted; there was no breach of the petitioner’s right to associate with others; and that any infringement of the petitioner’s rights was justifiable. The Board further submitted that under article 36(3) of the Constitution, a proposed association can be denied registration if reasonable grounds for non-registration are advanced.
4.
The 4th and 5th respondents, AMI and DK joined the matter as interested parties before the High Court and submitted that there is a distinct difference between Lesbian, Gay and Bisexual persons (LGB), and Transgender and Intersex persons (TI). They were concerned that the registration of the NGO would result in a blurring of such issues.
5.
The 6th respondent, Kenya Christian Professional Forum was also an interested party and urged that the petition should be dismissed arguing that there was no violation of article 36 of the Constitution. They further urged that the rejection of the names proposed by the petitioner was reasonable, as it would otherwise be in violation of section 162 of Penal code.
6.
The amicus curiae, Katiba Institute submitted that the Board’s decision not to register the proposed NGO violated the 2nd respondent’s rights, including the right to freedom of association and fair administrative action. It also submitted that the laws relied on by the Board as justification for rejecting the request for registration were irrelevant to the issue of registration. It also submitted that the denial of registration was not in tandem with the requirements of article 24 of the Constitution.
7.
The two issues for determination delineated by the High Court for determination, were whether lesbian, gay, bisexual, transgender, intersex and queer groups have a right to form associations in accordance with the law; and whether the decision of the Board not to allow the registration of the proposed NGO because of the choice of name was a violation of the rights of the petitioner under article 36 and 27 of the Constitution.
8.
A three Judge bench of the High Court (Lenaola, Ngugi & Odunga JJ., as they then were) delivered its judgment on April 24, 2015. The court determined that the refusal to reserve the proposed names was purely administrative and was made pursuant to the NGO Regulations, and not under the NGO Act. The court further held that, even if there was no statutorily prescribed internal remedy that was available to the 2nd respondent, the court could not close its doors on him for failure to exhaust an internal remedy that did not apply to his circumstance. The court thus found that the acts of the 1st respondent constituted an infringement of the 2nd respondent’s right to freedom of association.
9.
Furthermore, the court faulted the 1st respondent’s reliance on sections 162 and 163 of the Penal Code to justify its decision and found that the latter does not criminalize homosexuality or the state of being homosexual, but rather refers to certain sexual acts which are “against the order of nature.” The court also found that the Penal Code does not criminalise the right to freedom of association of people based on their sexual orientation. On article 27 of the Constitution, the court held that an interpretation of non-discrimination which excludes people based on their sexual orientation would conflict with the principles of human dignity, inclusiveness, equality, human rights and non-discrimination.
10.
Accordingly, the trial court allowed the petition and declared that ‘every person’ in article 36 of the Constitution includes all persons living within the Republic of Kenya despite their sexual orientation, that the 2nd respondent was entitled to exercise his freedom of association and issued an order of mandamus directing the 1st respondent to strictly comply with its constitutional duty under article 27 and 36 of the Constitution and the relevant provisions of the NGO Co- ordination Act.
ii. Before the Court of Appeal
11.
The 1st respondent being aggrieved by the decision of the High Court filed an appeal before the Court of Appeal. The issues for determination delineated by the Court were whether the 2nd respondent had an obligation to exhaust the remedies available under the NGO Coordination Act, whether in rejecting the reservation of the name, the 1st respondent violated the provisions of article 36 and 27 of the Constitution and lastly whether the right under article 36 is a limited right pursuant to article 24 of the Constitution.
12.
A five judge bench at the Court of Appeal having considered all submissions, by majority decision (Waki, Koome (as she then was), Makhandia with Nambuye, Musinga JJA dissenting), arrived at similar findings as the High Court and dismissed the matter being Civil Appeal No 145 of 2015 in a judgment which was dated and delivered on March 22, 2019.
iii. Before the Supreme Court
13.
The 1st respondent being aggrieved with the decision of the Court of Appeal, filed an appeal before this court seeking to set aside the judgment of the appellate court delivered on March 22, 2019. The issues set out for determination by this court were whether the 1st respondent was required to exhaust internal remedies under the NGO Act, and whether the decision of the 1st respondent violated article 36 and 27 of the Constitution.
14.
The appeal was dismissed by a majority (Mwilu; DCJ & VP, Wanjala, Njoki with Ibrahim, Ouko SCJJ dissenting). In determining the matter, the majority opined that the petition of appeal was not with the legalization or decriminalization of LGBTIQ activities, or the morality of the same sex marriage but revolved around the question as to whether the refusal to register an organization of persons who fall within the LGBTIQ classification contravened the fundamental rights and freedoms provided for in article 36 and 27 of the Constitution.
15.
This court held that sections 162,163 and 165 of the Penal Code and the provisions of article 24 of the Constitution do not convey the intention to limit the freedom of association of LGBTIQ persons. On the provisions of article 36, the court found that the 1st respondent’s limitation of the 2nd respondent’s right to freedom of association was not proportionate to the aim sought for registration of the proposed NGO. This Court also held that the word “sex” as used in article 27 of the Constitution, was to be interpreted as to include the expression “sexual orientation”. The court therefore found that the 2nd respondent’s right not to be discriminated against directly or indirectly, based on their sexual orientation was violated by the 1st respondent. Consequently, we did, by a majority, agree with the findings of the High Court, and the Court of Appeal that LGBTIQ persona have a right to freedom of association, which includes the right to form an association of any kind. The appeal was therefore dismissed in its entirety.
16.
Having set out the litigation background of this matter and the determination by the court we now turn to consider the present application.
c. The Application and Parties’ Submissions
17.
The notice of motion dated March 9, 2023 is supported by an affidavit sworn on even date by the applicant, George Peter Kaluma. The applicant avers that the application is filed pursuant to the inherent jurisdiction of this court and all enabling provisions of the law. The application seeks the following orders:
i.
The application be certified urgent.
ii.
The implementation of the judgment of the court in Supreme Court Petition Number 16 of 2019 between NGO Coordination Board and Eric Gitari and others dated and delivered on February 24, 2023 be stayed pending the hearing and determination of the application.
iii.
The court be pleased to review and set aside the judgment of this court dated February 24, 2023 where at paragraph 79 the court found and decreed that the use of the word “sex” under article 27(4) of the Constitution ‘refers also to sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise’; and that the word “including” under article 27(4) also comprises “freedom from discrimination based on a person’s sexual orientation.”
iv.
The court be pleased to review and set aside the judgment of this court dated February 24, 2023 where at paragraph 79 it found and decreed that the appellant’s action of refusing to reserve the name of the 1st respondent’s intended NGO on the ground that sections 162, 163 and 165 of the Penal Code criminalises gay and lesbian liaisons was discriminatory in view of article 27(4) of the Constitution.
v.
The court be pleased to review and set aside the judgment of this court dated February 24, 2023 where it decreed that LGBTQ have a right to freedom of association which included the right to form an association of any kind contrary to the provisions of article 36(3)(a) of the Constitution, section 14 of the Non-Governmental Organizations Coordination Act, regulation 8(3)(b) of the Non-Governmental Organizations Regulations as read together with sections 162, 163 and 165 of the Penal Code.
vi.
The court be pleased to review and set aside its orders on costs in the judgment dated and delivered on February 24, 2023.
vii.
Parties to bear own costs this being a public interest action.
viii.
Such other/further orders as the honourable court may deem fit, just and appropriate in the circumstances.
18.
The application is premised inter alia, on the following grounds: that the judgment usurped the sovereign power of the people, the legislative role and authority of Parliament and purported to amend article 27(4) of the Constitution; that the court disregarded the views of the people of Kenya on ‘sex’ and ‘gender’ contained in the final report of the Constitution of Kenya Review Commission; that the court inadvertently determined Civil Appeal No 536 of 2013 between EG & 7 others v Attorney General; DKM & 9 others (interested parties); Katiba Institute & another (amicus curiae) concerning the constitutionality of sections 162(a), (c) and 165 of the Penal Code; that the court usurped and completely vacated the powers bestowed upon the Director of NGO Co-ordination Board to reserve proposed names of associations; that the decision has opened the door wide to registration of associations, entities, organisations whose naming and or objects are contrary to the law and inconsistent with public interest; and that there is widespread discontent, uproar, dissent and displeasure with the judgment by the general public as reported across all mainstream media and social media platforms. The applicant also contends that the matter is of great public interest and that the exercise by the court of its inherent review jurisdiction is justified by patent errors of law and the exceptional circumstances in this matter.
19.
The 1st respondent filed a replying affidavit sworn by Lindon Otieno on April 14, 2023 in his capacity as the legal affairs manager of the NGO Co-ordination Board. This affidavit supports the application filed by George Peter Kaluma, as it is deponed that this court has jurisdiction to review its judgment delivered on February 24, 2023 on the grounds that it was obtained through fraud, deceit and misrepresentation of facts by the 2nd respondent. The 1st respondent refers to its annexures where it has produced some published articles and a website publication. The 1st respondent contends that the 2nd respondent failed to disclose that he co-founded and illegally operates an unlawful organisation since the year 2012 called ‘the National Gay and Lesbian Human Rights Commission’ and that he deceived the court that he together with others, had been denied their right to associate. The 1st respondent also contends that it was not aware of this information prior to the delivery of the judgment.
20.
Additionally, the 1st respondent urges that the judgment delivered on February 24, 2023 has impacted the proceedings pending in Nairobi Court of Appeal (Civil Appeal No 536 of 2019 Eric Gitari v The Honourable Attorney General & others).
21.
The 1st respondent prays for a review on the order for costs. It also contends that it has been experiencing challenges with regard to applying the judgment and needs further clarification which will be obtained when it makes oral submissions on the issues raised in the instant application.
22.
The 2nd respondent in his replying affidavit sworn on March 22, 2023 opposes the application and argues that it is frivolous and without any merit because the applicant lacks legal standing as he is not a party to the proceedings. The 2nd respondent contends that section 21A of the Supreme Court Act provides that the Supreme Court may review its own judgment or order “upon application by a party.” He further urges that the applicant has not met the grounds for review under section 21A of the Supreme Court Act and that the application is procedurally irregular as it would fundamentally undermine the authority of the Supreme Court and the finality of its proceedings.
23.
He relied on this court’s decisions in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others [2017] eKLR; Wanderi & othersv Engineering Registration Board and others [2020] eKLR; Mohamed Ali Mohamud vs Ahmed Abdullahi Mohamad & 3 others [2018] eKLR; and Senate of Kenya & 3 others v Speaker of the National Assembly & 10 others [2023] eKLR to buttress his assertion.
24.
The applicant filed submissions in rejoinder dated April 11, 2023. Herein, he submits that the instant application consciously invokes the inherent jurisdiction of the court and not section 21(4) of the Supreme Court Act. He states that the application raises grave and novel matters which require further elaboration in open court.
25.
The applicant also cites the following international instruments to support his case: Universal Declaration of Human Rights, the International Covenant on Civil and Political rights, the African Charter on Human and Peoples Rights, the Yogyakarta principles and Yogyakarta+10.","d. Issues for Determination
26.
Taking into account the submissions of the all parties, two issues emerge for determination:
i.
Whether the applicant is competent to make the application;
ii.
Whether the applicant has established a basis for the review of this court’s decision.
On the applicant’s competence,
27.
This court on February 24, 2023 delivered its judgment and order in SC Petition No 16 of 2019 NGOs Co-ordination Board vs Eric Gitari & others. As earlier stated, the applicant herein, Peter George Kaluma, was neither a party to the appeal before this court nor was he a party in the matter before the Court of Appeal nor the High Court. This begs the question whether the applicant is competent to approach this court in the manner that he has. By extension, it begs the question whether, this court has jurisdiction to entertain an application seeking a review of its judgment, by a person who was never a party to the proceedings that culminated in the said judgment.
28.
In Law Society of Kenya v Communications Authority of Kenya SC Petition No 8 of 2020 [2023] eKLR, we held as follows on the significance of a party having locus standi in a matter:
“
Therefore, flowing from the constitutional provisions on the jurisdiction of this court, the definition of ‘a person’ seeking to file an appeal only extends to a party who is aggrieved by a decision issued against him by the Court of Appeal and wishes to prefer an appeal to the Supreme Court. The definition does not open the door for any passer-by who is disgruntled with a decision delivered by the appellate court to approach this court. This also extends to matters relating to public interest. Furthermore, there is difficulty in granting relief at the appellate stage to a party who did not litigate those issues before the superior courts. A person in this context should therefore be a party with locus standi in the matter.”
29.
In the instant application, the applicant contends that an application for review can be invoked by any person who would appeal the matter but is yet to do so. we disagree. this court derives its jurisdiction from article 163 of the Constitution and subsequently from legislation, to wit, the Supreme Court Act and Rules. It is therefore bound by its rules and procedure. Thus, a party moving the court under article 163 must be competent to do so in the first place.
30.
Section 21A of the Supreme Court Act provides for the circumstances pursuant to which this court may review its own decision on an application filed by “a party”. The court cannot entertain an application for review of its judgment filed by an applicant who was not a party to the proceedings as this goes to the root of the matter and sanctity of the already determined suit which was contested by the parties. Consequently, we find that the applicant is not competent to seek a review of the judgment under reference.
Whether the applicant has established a basis for the review of this court’s decision,
31.
This court has neither jurisdiction to sit on appeal nor to review its decisions other than in the manner provided for by section 21A of the Supreme Court Act. These principles were also set out in the matter of Fredrick Otieno Outa vs Jared Odoyo Okello & 3 others, SC Petition No 6 of 2014; [2017] eKLR (Outa). Both the Act and stated case law stipulate the circumstances under which this Court may review its decisions, either on its own motion, or upon application by a party as follows:
a.
The judgment, ruling or order is obtained through fraud, deceit or misrepresentation of facts;
b.
The judgment, ruling or order is a nullity by virtue of being made by a court which was not competent;
c.
The court was misled into giving judgment, ruling or order under the belief that the parties have consented; and
d.
The judgment, ruling or order was rendered on the basis of repealed law or as a result of a deliberate concealment of a statutory provision.
32.
The applicant has not demonstrated how his matter conforms to the specific parameters enumerated under section 21A of the Supreme Court or in the Outa case; neither has he demonstrated to our satisfaction that the impugned Judgment was obtained by fraud or deceit, is a nullity, or that the court was misled into giving its judgment under a mistaken belief that the parties had consented thereto. In our view, the application is a disguised appeal from this court’s judgment and does not fall within the confines of the parameters prescribed for review by statute and applicable case law. Therefore, the application stands dismissed. On costs, the applicant is an Advocate of the High Court of Kenya and a Member of Parliament. He ought to have known that his application was misconceived ab initio.
He must consequently bear the costs thereof.
e. Disposition
33.
Flowing from our findings above, the final orders to be made are as follows:
i.
The notice of motion dated March 9, 2023 is dismissed.
ii.
The applicant shall bear the costs of the appeal.
It is so ordered.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/72/eng@2023-09-12
Petition 10 (E013) of 2022,"MMG v Tribunal Appointed to Investigate the Conduct of Hon. Lady Justice MMG, Judge of the Environment and Land Court of Kenya (Petition 10 (E013) of 2022) [2023] KESC 73 (KLR) (12 September 2023) (Judgment)",Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",12 September 2023,2023.0,Nairobi,,"MMG v Tribunal Appointed to Investigate the Conduct of Hon. Lady Justice MMG, Judge of the Environment and Land Court of Kenya",[2023] KESC 73 (KLR)               ,,"A. Introduction
1.
By the petition of appeal dated May 19, 2022, this court is being asked to exercise its jurisdiction under article 163(3) and (8) of the Constitution. The appeal challenges the report and recommendation issued by the tribunal appointed to inquire into the petitioner’s inability to perform the functions of her office due to mental incapacity.
2.
Part A of the petition of appeal specifies that the petition is premised on the following grounds:
i.
That the inability of the petitioner to perform the functions of her office due to mental incapacity was not established as contemplated under article 168(1)(a) of the Constitution;
ii.
That the honourable Tribunal erred in law and fact in holding that Judicial Service Commission had discharged its mandate as contemplated under article 168(4) of the Constitution;
iii.
That in all circumstances of the case, the findings of the honourable Tribunal and the recommendation thereto is not supported in law by the evidence adduced.
B. Background
3.
The petitioner was nominated to serve as a Judge of the Environment and Land Court (ELC) in the year 2012. Before her appointment, the Judicial Service Commission (JSC) through one of its Commissioners, reported that it had received information from unnamed lawyers that the Judge had a medical history of mental illness. The JSC resolved to have the petitioner, who was then a nominee for appointment as a judge, undergo a medical examination conducted by a medical board constituted by the Director of Medical Services to determine her suitability for the position.
4.
The Medical Board assessed the petitioner on November 1, 2012. Its findings were communicated to the JSC on November 2, 2012. The findings of the report indicated that:-
“the judgewas sane, coherent in speech, had a good memory of current affairs, and was fairly eloquent in addressing issues raised by the board members.” The Board then concluded that, “even though records indicate that the judgehad a history of mental illness, she had been declared by her psychiatrist as having fully recovered and was therefore fit to take up the position of a judge.”
5.
The petitioner was subsequently appointed as a judgeof the ELC and posted to Kakamega Law Courts. She was later transferred to Milimani Law Courts in January 2013 and then to the Judiciary Training Institute (JTI) in January 2018.
6.
Following complaints received by the JSC inter alia regarding delay of delivery of rulings and judgment, the Commission in a meeting held on May 2, 2019 resolved to inquire further into the matter. In this regard, the JSC sought reports of the performance of the Judge from the acting Registrar of the ELC, the Director of the JTI, and lastly, a report by the acting Director of Planning and Organizational Performance (DPOP). The JSC also called for her medical record which medical file was availed by the Human Resource Directorate.
7.
Subsequently, upon deliberations, the JSC resolved that the petitioner appears before a Medical Board (second Medical Board) which was to be constituted by the Director of Medical Services for examination of her fitness to continue serving as a Judge. The second Medical Board was constituted and it examined the Judge on November 28, 2019 at the National Spinal Injury Hospital.
8.
It submitted its report dated July 24, 2020 and concluded that:-
“Based on the fact that the Hon Lady Justice MG was on treatment for Schizophrenia with evidence of several relapses, evidence of lack of insight during the period of relapses leading to absence from duty. She also had evidence of below-average performance. She is not fit for further service as a judge.”
9.
The JSC held a meeting on September 16, 2020 and deliberated on the report and findings of the second Medical Board. It resolved to institute proceedings against the petitioner for her removal pursuant to article 168 (1)(a) of the Constitution. The petitioner was invited on September 28, 2020 to make her representation on the findings of the second Medical Board and the contemplated action of her removal from office.
10.
Following the hearing of the petitioner and the deliberations on the matter, the JSC Committee that had been established to consider her removal from office concluded that the ground for removal of the petitioner on the basis of her inability to perform the functions of the office arising from mental incapacity under article 168(1) of the Constitution had been established. Consequently, on March 23, 2021, the JSC considered and deliberated on the Committee’s findings and recommendations and adopted the same through a majority decision. Thus, a petition dated April 12, 2021 was submitted to the President recommending the suspension of the Judge and the appointment of a Tribunal in terms of article 168 (5)(b) of the Constitution to consider the removal of the petitioner from office.
11.
His Excellency, President Uhuru Kenyatta, (as he then was) by a Gazette Notice No 8625 dated July 20, 2021 and published on August 23, 2021, suspended the petitioner from office with immediate effect and appointed a Tribunal to inquire into the matter of her removal. The composition of the Tribunal included three Judges, and two psychiatrists amongst others.
12.
The tribunal concluded its hearing and deliberations and, in a report dated April 13, 2022 stated that the allegations, that the Judge has mental incapacity and therefore unable to perform the functions of the office of Judge of the ELC, were established to the required standard of proof. The Tribunal unanimously recommended that the petitioner be removed from office of judge of ELC.
13.
Aggrieved by the decision of the tribunal, the petitioner filed a petition of appeal dated May 19, 2022 before this court pursuant to article 168(8) of the Constitution.","D. Issues for Determination
32.
From the pleadings, submissions by the parties, and records of appeal, the following issues have crystallized for determination by this court:
i.
Whether the Tribunal acted within its jurisdiction to make the findings contained in its report;
ii.
Whether the petitioner’s mental incapacity was established; and
iii.
Whether mental incapacity rendered the petitioner unable to perform the functions of the office of a judge of the ELC.
E. Analysis
Whether the Tribunal acted within its jurisdiction to make the findings contained in its report
33.
The petitioner contends that the Tribunal went outside its mandate when it made conclusions and findings on mental illness and mental incapacity, treatment, psychosocial support, and the petitioner’s mental illness and its impact on the right to access justice. The respondent opposes these contentions and reiterates that it acted within its mandate.
34.
The process of removal of a Judge from office is provided for under article 168 (2) to (7) of the Constitution and we summarize it as follows; It is initiated by the JSC on its own motion or upon a petition being filed by any person for consideration by the Commission. If satisfied that the petition discloses a ground for the removal of a Judge, the JSC shall send the petition to the President. The President thereafter suspends the Judge within fourteen days and also appoints a Tribunal to hear the Petition and make recommendations to the President for the removal or reinstatement of the Judge.
35.
The Constitution also provides under article 168(7)(a) & (b) that the Tribunal shall be: ‘(a) responsible for the regulation of its proceedings, subject to any legislation contemplated in clause (10); and (b) inquire into the matter expeditiously and report on the facts and make binding recommendations to the President.’
36.
This court, pursuant to article 168(8) of the Constitution has the jurisdiction to hear a judge who is aggrieved by the decision of the Tribunal and appeals within ten days after the Tribunal makes its recommendation. We pause here to point out as we did in the Mutava case that our jurisdiction under article 168(8) of the Constitution is “expansive in that we are required to re-evaluate and re-assess the evidence on record with a view of establishing whether the Tribunal misdirected itself and whether the Tribunal’s conclusion should stand.”
37.
The grounds for removal from office are outlined in article 168 (1) and they are reproduced hereunder for clarity:
“
168.
Removal from office
A judge of a superior court may be removed from office only on the grounds of—
a.
inability to perform the functions of office arising from mental or physical incapacity;
b.
a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament;
c.
bankruptcy;
d.
incompetence; or
e.
gross misconduct or misbehaviour.”
38.
From the record, it is evident that pursuant to the petition by JSC and in exercise of the powers conferred by article 168(5) of the Constitution as read with section 31 of the Judicial Service Act, 2011, His Excellency, former President Uhuru Kenyatta, vide Gazette Notice No 8625 dated July 20, 2021 and published on August 23, 2021, suspended the Petitioner from office with immediate effect and appointed a Tribunal to inquire into the matter. The pertinent parts of this gazette notice in this issue are reproduced hereunder:
“
Whereas the petition is premised on the Constitutional provisions on removal from office of a judge of a superior court, under article 168 (1) (a) of the Constitution and is pursuant to the findings of the Judicial Service Commission;
…..Now therefore and having considered the petition of the Judicial Service Commission together with its annexures, I note that:
…..The Judicial Service Commission having considered various medical reports was satisfied that a ground for removal of the Honourable Justice MMG, on the reason of her inability to perform the functions of office arising from mental incapacity under article 168(1)(a) of the Constitution has been disclosed,
…..(iii) The mandate of the tribunal shall be:
To consider the Petition on removal of the Hon Lady Justice MMG from office on the reason of her inability to perform the functions of office arising from mental incapacity under article 168(1)(a)…”
39.
On September 10, 2021, the Tribunal gazetted its Rules of Procedure in accordance with the Constitution and pursuant to section 31(5) of the Judicial Service Act. It held a case conference on October 18, 2021. During the case conference, the list of allegations, summary of facts, and summary of the findings by the JSC and its resolution and recommendation for her removal were read out to the petitioner and her counsel. The petitioner elected to have the proceedings in camera pursuant to rule 9(1) of the Tribunal Rules.
40.
The Tribunal heard a total of 12 witnesses including the petitioner. The Tribunal in its report dedicated Chapter Four to identifying and crystallizing key medical issues that emerged in the proceedings and were relevant in the determination of the subject matter.
41.
The Tribunal on page 87 of its report at paragraph 554 acknowledging the novelty of the proceedings before it stated:
“
554.
The issue of inability to perform the functions of the office of a Judge arising out of mental incapacity has not been considered by any other Tribunal. article 168(1)(a) of the Constitution provides that a Judge may be removed from office for “inability to perform the function of office arising from mental or physical incapacity.”
555.
What is required to be established before this Tribunal is not the issue of breach of code of conduct applicable to Judges, bankruptcy, incompetence, gross misconduct or misbehaviour by the Judge but alleged incapacity arising out of a mental condition. The instant Tribunal must first establish the existence of a mental illness and, secondly answer the question whether that illness has resulted in mental incapacity, leading to inability on the part of the Judge to perform the expected functions of that office.
556.
With specific reference to Justice MMG, whereas there is an admission that she has a mental illness known as Schizophrenia, this Tribunal, however being inquisitorial, must inquire into the nature of the illness, its extent and severity as well as its impact on the performance of the Judge and whether it has resulted in her inability to perform the expected function of that office.”
42.
Again on page 91 paragraph 579, after interrogating the definition of mental incapacity under the Constitution, the Mental Health Act (1989) of Kenya the Mental Capacity Act, 2005 (UK), the Convention on the Rights of Persons with Disabilities (CRPD), Black’s Law Dictionary 9th Edition, the Online Merriam-Webster Dictionary and persuasive case law, the Tribunal reported:
“
579.
The Tribunal in the current instance is required to establish whether Justice MMG lacks mental capacity which renders her unable to perform the functions of the Office of a Judge of the ELC as provided under article 168 1(a) of the Constitution.”
43.
The Tribunal, on page 233 paragraph 1344 stated:-
“In the context of these proceedings, the Tribunal holds that to determine the question of whether the mental illness resulted in mental incapacity, it must determine whether the mental illness is so severe as to affect the judge’s capacity to undertake the functions of office of judge.”
44.
Indeed, a thorough reading of the Tribunal’s Report reveals an in-depth inquiry as to whether the petitioner was unable to perform her judicial functions due to mental incapacity. It is therefore evident, in doing so, that the Tribunal was exercising its mandate pursuant to article 168(1)(a) of the Constitution. All the conclusions and findings of the Tribunal were geared towards establishing whether she was unable to perform the functions of office due to mental incapacity. The Tribunal found that she suffered from a mental illness that led to mental incapacity and inability to undertake the functions of her office. As such, we are of the view that the Tribunal confined itself to the matters contained in the petition submitted to the President by the JSC and we are not persuaded by the petitioner that the Tribunal considered issues extraneous to its jurisdiction.
Whether mental incapacity was established
45.
We now turn to determine this novel issue before us; whether the Tribunal erred in arriving at a finding of mental incapacity. The petitioner contends that it was not established that she suffered mental incapacity. It was her case that the required standard of proof was not met and the Tribunal erroneously concluded that mental illness amounted to proof of mental incapacity. The respondent on the other hand urged that the standard of proof that the mental illness had affected the petitioner’s ability to perform her duties as judge was satisfied on account of the evidence adduced.
46.
It is prudent for us to venture into the legislative scheme governing mental incapacity. The Mental Health Act, cap 248 Laws of Kenya does not define mental incapacity. It however defines a person with mental illness in section 2 as ‘a person diagnosed by a qualified mental health practitioner to be suffering from mental illness.’ This Act is however silent on the resultant effect of mental capacity of persons with mental illness. We shall therefore seek a comparative perspective on the issue.
47.
The United Kingdom enacted the Mental Capacity Act in 2005 (UK Act). This Act, in section 1 provides that the following principles are applicable when applying the statute:
a.
“A person must be assumed to have capacity unless it is established that he lacks capacity;
b.
A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success;
c.
A person is not to be treated as unable to make a decision merely because he makes an unwise decision;
d.
An act done, or decision made under this Act for or on behalf of a person who lacks capacity must be done or made in his best interests;
e.
Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.”
48.
The UK Act further provides in sections 2(1) and (2) as follows:
“
(1)
A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2)
It does not matter whether the impairment or disturbance is permanent or temporary.”
49.
The case of Heart of England NHS Foundation Trust vs JB [2014] EWCOP 342 expounded on the UK Act. The case concerned a 62-year-old woman (JB) diagnosed with paranoid schizophrenia during her 20's In 2013 JB developed ulcers on her feet and eventually her right foot became gangrenous. The medical advice was for an amputation which JB opposed but doctors attending her were in conflict as to whether she lacked capacity to make medical decisions. The NHS Trust applied to the court of protection for a declaration that JB lacked capacity to consent to medical treatment and that it would be in her best interest to have a through-knee amputation and for her to be sedated if she resisted. Peter Jackson, J held:
""3.
There are some who, as a result of an impairment or disturbance in the functioning of the mind or brain, lack the mental capacity to decide these things for themselves. For their sake, there is a system of legal protection, now codified in the Mental Capacity Act 2005. This empowers the court of protection to authorise actions that would be in the best interests of the incapacitated person.
4.
The Act contains a number of important general principles regarding capacity:…..
These principles reflect the self-evident seriousness of interfering with another person's freedom of action. Accordingly, interim measures aside, the power to intervene only arises after it is has been proved that the person concerned lacks capacity. We have no business to be interfering in any other circumstances. This is of particular importance to people with disadvantages or disabilities. The removal of such ability as they have to control their own lives may feel an even greater affront to them than to others who are more fortunate.
5.
Furthermore, the Act provides (s 1(6)) that even where a person lacks capacity, any interference with their rights and freedom of action must be the least restrictive possible: this acknowledges that people who lack capacity still have rights and that their freedom of action is as important to them as it is to anyone else.”
50.
The judge concluded by finding that JB undoubtedly had a disturbance in the functioning of her mind in the form of paranoid schizophrenia (as to which she lacked insight), but that it had not been established that she thereby lacked the capacity to make a decision about surgery for herself. On the contrary, the evidence established that she had capacity to decide whether to undergo an amputation of whatever kind.
51.
Long before the enactment of the Mental Capacity Act in 2005, the UK Law Commission’s tabled a report on Mental Incapacity: Item 9 of the Fourth Programme of Law Reform: Mentally Incapacitated Adults (Law Comm 231) (https://www.lawcom.gov.uk/app/uploads/2015/04/lc231.pdf).
52.
The Commission was investigating the then UK law (Mental Health Act 1983) relating to mental incapacity after a number of outside bodies drew attention to problems and deficiencies in the existing law to the Commission’s attention. On page 32 the Commission noted as follows on ‘capacity’:
“
(1)
Capacity and Lack of Capacity
Presumption of capacity and standard of proof
It is presumed at common law that an adult has full legal capacity unless it is shown that he or she does not. If a question of capacity comes before a court the burden of proof will be on the person seeking to establish incapacity, and the matter will be decided according to the usual civil standard, the balance of probabilities. We proposed in Consultation Paper No 128l that the usual civil standard should continue to apply and the vast majority of our respondents agreed with this proposal. A number, however, argued that it would be helpful if the new statutory provisions were expressly to include and restate both the presumption of capacity and the relevant standard of proof.
We recommend that there should be a presumption against lack of capacity and that any question whether a person lacks capacity should be decided on the balance of probabilities. (Draft Bill, clause 2(6).)”
53.
At page 34:
“
A diagnostic threshold
In the consultation papers we suggested that a person (other than someone unable to communicate) should not be found to lack capacity unless he or she is first found to be suffering from “mental disorder” as defined in the Mental Health Act, 1983.
On page 36:
3.
12 We take the view that (except in cases where the person is unable to communicate) a new test of capacity should require that a person’s inability to arrive at a decision should be linked to the existence of a “mental disability”. The adoption of the phrase “mental disability” will distinguish this requirement from the language-of the Mental Health Act, 1983 and will stress the importance of a mental condition which has a disabling effect on the person’s capacity. We recommend that the expression “mental disability’’ in the new legislation should mean any disability or disorder of the mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning. (Draft Bill, clause 2(2).) …
The definition of incapacity
The functional approach means that the new definition of incapacity should emphasise its decision-specific nature. A diagnostic threshold of “mental disability” should be included, except in cases of inability to communicate.
We recommend that legislation should provide that a person is without capacity if at the material time he or she is:
""1.
unable by reason of mental disability to make a decision on the matter in question, or
2.
unable to communicate a decision on that matter because he or she is unconscious or for any other reason. (Draft Bill, clause 2(1).)”
54.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/73/eng@2023-09-12
Petition (Application) E025 of 2023,Farah v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Petition (Application) E025 of 2023) [2023] KESC 71 (KLR) (11 September 2023) (Ruling),Ruling,Supreme Court,Supreme Court,I Lenaola,11 September 2023,2023.0,Nairobi,Election,Farah v Independent Electoral and Boundaries Commission,[2023] KESC 71 (KLR)               ,,"Brief facts
The petitioner filed an appeal before the Supreme Court. The Deputy Registrar directed that the petition of appeal would not be admitted for hearing until the disposal of the applicant’s application for leave to appeal to the Supreme Court on the ground that the appeal raised a matter of general public importance. Aggrieved the appellant filed the instant application seeking to review the decision of the Deputy Registrar on grounds that the appellant had elected to file an appeal as of right pursuant to article 163(4)(a) of the Constitution and that by filing the appeal under article 163(4)(a) he had abandoned the application for certification at the Court of Appeal. 
Issues
Whether the Registrar of the Supreme Court had the power to decline pleadings that were not filed in accordance with the Constitution, the Supreme Court Act, the  Supreme Court Rules, 2020, or the Supreme Court (General) Practice Directions, 2020 for filings.
Whether the Supreme Court’s Deputy Registrar subverted the applicant’s right to a fair hearing by declining to admit a petition of appeal because of the application that sought to certify the appeal as one raising matter(s) of general public importance was pending at the Court of Appeal.
Held
The role of the Registrar was encapsulated under rule 6 (1) of the  Supreme Court Rules, 2020 (the Rules) which provided inter alia that the Registrar could decline pleadings that were not in accordance with the Constitution, the Supreme Court Act, the Rules, or the Supreme Court (General) Practice Directions, 2020 for filings. 
Rule 6(2) the Rules provided that any party aggrieved by a decision of the Registrar made under the rule could apply for a review to a single judge. Since the applicant had moved the Court of Appeal for certification of the appeal as one involving matter(s) of general public importance, it was only right that the Court of Appeal be given an opportunity to pronounce itself on the same or grant orders withdrawing the application in line with the applicant’s application seeking to withdraw the application dated July 28, 2023, before the Supreme Court could seize the petition of appeal. There was no evidence that the application had been withdrawn or determined.
The applicant should first ensure that the application for certification dated July 28, 2023 still pending before the Court of Appeal was disposed of before any other step can be taken in the petition of appeal he sought to file before the Supreme Court. 
Application dismissed.","Upon reading the notice of motion by the applicant dated August 30, 2023 and filed on even date, brought pursuant to articles 20(3)(a) and (b), 21(1), 27 (1), 50(1) and 163 of the Constitution, rules 6(2) and (3), 31 and 32 of the Supreme Court Rules, 2020 and sections 31, 32 and 33 of the Supreme Court (General) Practice Directions, 2020 seeking orders that;
1.
The court be pleased to review and discharge the decision of the Honourable Deputy Registrar issued on August 29, 2023; and
2.
The court do issue appropriate directions for the disposal and hearing of the petition of appeal dated August 18, 2023; and
2.
Upon considering the grounds in support of the application and the averments contained in the supporting affidavit sworn by Bardad Mohamed Farah on August 30, 2023 wherein he contends that; on August 25, 2023, he filed a petition of appeal dated August 18, 2023 pursuant to article 163(4)(a) of the Constitution; subsequently, the court directed the parties to appear virtually before the Deputy Registrar on August 29, 2023 for further directions; on August 29, 2023, the Deputy Registrar directed that the petition of appeal would not be admitted for hearing and/or dispensed with until the disposal of a notice of motion dated July 28, 2023 filed at the Court of Appeal being Civil Application No Sup E006 of 2023 where the applicant had sought leave to appeal to the Supreme Court on the ground that the appeal raised a matter of general public importance; the directions of the Deputy Registrar were issued despite their submission that the Court of Appeal had not set down the application dated July 28, 2023 for hearing one month after filing; notwithstanding the application for certification at the Court of Appeal, the applicant had elected to file an appeal to this court as of right pursuant to article 163(4)(a) of the Constitution and that by filing the appeal under article 163(4)(a) he had abandoned the application for certification at the Court of Appeal; and that the Deputy Registrar’s action subverted the applicant’s right to a fair hearing enshrined in article 50(1) of the Constitution; and
3.
Upon considering the applicant's submissions dated August 30, 2023 and filed on even date wherein he; reiterates the arguments in his supporting affidavit; faults the Deputy Registrar for selectively relying on paragraph 44 of this court’s decision in Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others, Supreme Court Civil Application No 35 of 2014 [2015] eKLR (Fahim case) and submits that the Fahim case is distinguishable as it sought for extension of time to file an appeal out of time and concurrently filed two certification applications at the Court of Appeal and before this court was seeking certification at the first instance and priority over the certification at the Court of Appeal; submits that he had indicated that he no longer wished to pursue the certification application before the Court of Appeal in Civil Application No Sup E006 of 10 2023, therefore, his petition under article 163(4)(a) is not premature; and in conclusion, he prays that the court ought to set aside the Deputy Registrar’s ruling of August 29, 2023; and
4.
Upon considering the 1st and 2nd respondents’ grounds of opposition dated September 1, 2023 and filed online even date where they oppose the applicant’s application on inter alia the grounds that; the applicant has, pending before the Court of Appeal, an application for certification and an application for withdrawal of the application for certification; the applicant approaches this court contrary to the principles set by this court in Hassan Nyanje Charo v Khatib Mwashetani & 3 others SC Application No 15 of 2014; [2014] eKLR and that this court’s jurisdiction can only be triggered where the Court of Appeal has determined the application for certification; the applicant’s application offends the procedure for certification set by this court in Sum Model Industries Ltd v Industrial & Commercial Development Corporation SC Application 1 of 2011; [2011] eKLR; and that the instant application is an abuse of the court process and incompetent; and
5.
Also noting the 3rd respondent’s replying affidavit and submissions wherein he contends that; he was declared the duly elected Member of the National Assembly for Mandera North Constituency following the August 9, 2022 elections; the applicant challenged his election before the High Court and lodged an appeal before the Court of Appeal having been aggrieved by the appellate court’s decision; aggrieved by the decision of the Court of Appeal, the applicant filed an application for certification at the Court of Appeal under article 163(4)(b) of the Constitution; consequently the applicant filed a petition before this Court under article 163(4)(a) of the Constitution despite there being a pending certification application before the Court of Appeal; the applicant’s application has not met the criteria for review of the decision of the Deputy Registrar relying on this court’s decision in Mombasa Bricks & Tiles Ltd & 5 others v Shah & 7 others SC Application No E008 of 2022 [2022] eKLR where the court declined an invitation to review the decision of the Deputy Registrar; it is trite that the court cannot exercise concurrent jurisdiction with the Court of Appeal, therefore, the court is precluded from exercising jurisdiction; even though the applicant may have filed a notice of withdrawal, such a withdrawal can only be considered upon an order by the Court of Appeal; and he concludes that the applicant has not laid an adequate basis for review of the Deputy Registrar’s decision of August 29, 2023, he prays for dismissal of the instant application; and
6.
Having considered the application, responses, and submissions before us, we now opine as follows:
i.
The role of the Registrar is encapsulated under rule 6(1) which provides inter alia that the Registrar can decline pleadings that are not in accordance with the Constitution, the Act, the rules, or the court’s Practice Directions for filings. This court affirmed this position in Okiya Omtatah Okoiti v Attorney General & another, SC Application No 1 of 2019; [2019] eKLR, where it observed that one of the roles of the Registrar is;
“
(b)
to decline pleadings that are not in accordance with the Constitution, the Act, these rules, or the court's practice directions for filings.”
ii.
Furthermore, rule 6(2) of the Supreme Court provides that;
“
6(2)
Any party aggrieved by a decision of the registrar made under this rule may apply for a review to a single judge.”
iii.
Bearing in mind the above, did the Deputy Registrar subvert the applicant’s right to a fair hearing by declining to admit the petition filed under article 163 (4)(a) of the Constitution pending the disposal of Civil Application No Sup. E006 of 2023 which sought certification at the Court of Appeal under article 163 (4) (b) of the Constitution?
iv.
In this context, the Deputy Registrar found as follows:
“Having consulted the court on the way forward and being guided by the decision of this court in Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others, Supreme Court Civil Application No 35 of 2014 [2015] eKLR which had almost similar circumstances to this petition, the court held at paragraph 44 as follows:
“[44] It is clear to us that a party who moves the appellate court for leave and certification has recognized the relevant cause as one founded on “matter of general public importance”. Consequently, this court’s intervention is not in issue until that court’s task is complete.”
v.
In the instant application, the applicant faults the Deputy Registrar for selectively relying on paragraph 44 of the Fahim case. I reiterate that since the applicant had moved the Court of Appeal for certification of the appeal as one involving matter(s) of general public importance, it is only right that the Court of Appeal be given an opportunity to pronounce itself on the same or grant orders withdrawing the application in line with the applicant’s application seeking to withdraw the application dated July 28, 2023, before this court can seize the petition of appeal herein. I must add that, I have seen no evidence that the said application has been withdrawn or determined.
vi.
As a consequence of my findings above, I concur with the Deputy Registrar’s direction that the applicant should first ensure that the application for certification dated July 28, 2023 still pending before the Court of Appeal is disposed of before any other step can be taken in the petition of appeal he seeks to file before this court. I, therefore, find that the notice of motion dated August 30, 2023 lacks merits and is hereby dismissed.
vii.
It is well settled that costs follow the event and are awarded as a matter of discretion, I direct that costs in this application shall be paid by the applicant to the respondents.
7.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/71/eng@2023-09-11
Petition 13 (E015) of 2022,CMM (Suing as the Next of Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others (Petition 13 (E015) of 2022) [2023] KESC 68 (KLR) (8 September 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",8 September 2023,2023.0,Nairobi,Civil,CMM,[2023] KESC 68 (KLR)               ,,"Brief facts
The appellants were seven children suspects facing arson related charges in a matter that was of public interest. When they were presented before court to answer to their charges, the 1st to 4th respondents aired and published the case through their respective media houses on various platforms. In their publications they revealed the faces and identities of the children. 
Aggrieved the petitioners filed a constitutional petition in which they contended that their rights had been violated. In the petition filed at the High Court, the appellants sought various declaratory orders; an order compelling the respondents to pay general, exemplary, punitive and aggravated damages to each minor for infringement of their rights; and an order compelling the respondents to remove the images, pictures, stories or caricatures posted on the internet regarding the minors. 
The respondents’ justification for doing so was, first, that they did not know that the suspects were minors in view of the fact that the proceedings were conducted in the normal manner in open court suggesting that they concerned adults; that generally, criminal proceedings were, by their nature public, open to other members of the public and the press; that the publication was a fair and accurate report of the proceedings and only exposed the minors to the extent that they were suspects of criminal involvement and misconduct; that the publications were authored and videos uploaded in public interest as a matter of informing the general public of the steps being taken, including charging in court those involved, to curb the arson menace; that it was the court’s responsibility, knowing that the case involved children, to conduct the proceedings in camera; and finally, that the minors’ right to privacy was not guaranteed in criminal proceedings but limited.
The petition before the High Court was dismissed and so was the appeal filed by the appellants at the Court of Appeal. Further aggrieved the appellants filed the instant petition before the Supreme Court in which they contended that  the child's best interests ought to have been prioritized over public interest; that article 21 of the Constitution placed a duty on the 5th respondent and the courts as State organs, to observe, protect and promote the rights and fundamental freedoms in the Bill of Rights, especially in relation to vulnerable groups such as children.
The appellants’ further contended that the 1st to 4th respondents were guilty of irresponsible journalism; that the story was published with malicious intent, commercial consideration and profit, given prominence to gain popularity and with utter disregard for the dignity, privacy and best interest of the minors.The appellants contended that by posting a story on YouTube channels that included pictures of the children accompanied by a voice-over discussion of their alleged participation in the arson attack; that by reporting, televising, and publishing the story along with the images of the children, the respondents were in violation of the right to privacy and to protect and preserve the best interest of the children.
Issues
What was the nature and scope of the concept of best interest of the child?
How did courts reconcile the best interests of the child principle and the competing right of the people to open justice through a public hearing, freedom of expression of journalists, freedom of the media and the right of access to information of the Kenyan public?
Whether a petitioner who had proved at the High Court that their rights had been violated was required to also prove damage and injury suffered so as to be awarded damages.
What principles were applicable by courts, court staff, counsel, prosecutors, and the media in protecting the best interests of a child facing a criminal trial or a civil suit?
Whether the Supreme Court in an appeal filed as of right in a matter involving the interpretation/application of the Constitution, had the jurisdiction to determine matters of fact and evidence that did not have any constitutional underpinning.
","E. Analysis And Determination
Jurisdiction of the Court
41.
As a preliminary statement, we declare our satisfaction that this appeal has properly been brought as of right pursuant to article 163(4)(a) of the Constitution. The petition filed in the High Court, the arguments before both superior courts below as well as the judgments of those courts, all involve the interpretation and application of articles 31(c), 33(1), 34 and 53(2) of the Constitution, and as such satisfy the principles enunciated in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Petition No 3 of 2012: [2012] eKLR.
The first of the three main issues this appeal raises is,
i.Whether both superior courts below erred by placing public interest in publishing the pictures or images of children in a criminal trial over and above the best interest of the child;
42.
We reiterate the common position that when the seven suspects were presented before court on November 5, 2012, they were children as defined in article 260 of the Constitution. They faced arson-related charges. It is further conceded that the 1st to 4th respondents aired and published the case through their respective media houses on various platforms. However, the respondents’ justification for doing so was, first, that they did not know that the suspects were minors in view of the fact that the proceedings were conducted in the normal manner in open court suggesting that they concerned adults; that generally, criminal proceedings are, by their nature public, open to other members of the public and the press; that the publication was a fair and accurate report of the proceedings and only exposed the minors to the extent that they were suspects of criminal involvement and misconduct; that the publications were authored and videos uploaded in public interest as a matter of informing the general public of the steps being taken, including charging in court those involved, to curb the arson menace; that it was the court’s responsibility, knowing that the case involved children, to conduct the proceedings in camera; and finally, that the minors’ right to privacy was not guaranteed in criminal proceedings but limited.
43.
On their part, the appellants argued that the child's best interests ought to have been prioritized over public interest; that article 21 of the Constitution places a duty on the 5th respondent and the courts as State organs, to observe, protect and promote the rights and fundamental freedoms in the Bill of Rights, especially in relation to vulnerable groups such as children.
44.
It is the appellants’ further contention that the 1st to 4th respondents were guilty of irresponsible journalism; that the story was published with malicious intent, commercial consideration and profit, given prominence to gain popularity and with utter disregard for the dignity, privacy and best interest of the minors as required by the law; that the respondents neither bothered to confirm the age of the minors nor seek their comments on the issues before publishing them and that as a result of their reckless actions, the minors have been stigmatized, were traumatized and even shunned by society for being exposed as arsonists; that given the wide circulation and the permanent nature of the information, the children will have to live with that stigma and trauma throughout their lives and the injury will remain indelible.
45.
The last three paragraphs above constitute the rival arguments of the two sides in this appeal. The resolution of the issue in contention on this ground must depend on the proper construction of all the relevant provisions of the Constitution and the law. The canons of constitutional interpretation that have been infused in our judicial system over the years and which are today expressed in article 259 of the Constitution, adjure the courts to interpret the Constitution in a manner that promotes its purposes, values and principles and contributes to good governance. Those constitutional values and principles are expressed in the Preamble to include a commitment to nurturing and protecting the well-being of the individual, the family, communities and the nation: the recognition of the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law. This is in addition to the consideration of national values and principles of governance under article 10 of the Constitution. They are also discoverable through purposive, holistic, organic and liberal interpretations of the Constitution.
46.
Applying these principles, we start with article 53(2) of the Constitution which is the clause in the Bill of Rights dedicated to enhanced protection of children’s rights, in keeping with Kenya's obligation under the 1989 UN Convention on the Rights of the Child (CRC) and the 1990 African Charter on the Rights and Welfare of the Child (African Children’s Charter). The article requires that:
“
53(2).
A child’s best interests are of paramount importance in every matter concerning the child.”
47.
This article is a right in and of itself of the child, and not merely a guiding principle. In addition to being a self-standing right, it also strengthens the broader framework of human rights under chapter four of the Constitution. The reach of article 53(2) (a child’s best interests) is not to be limited to the rights enumerated in article 53(2)(a) to (f), that is, the child's right to a name and nationality; to free basic education; to basic nutrition, shelter and health care; to be protected from abuse, neglect; to parental care and protection; not to be detained, except as a measure of last resort, and when detained, for the shortest appropriate period of time and in a separate cell from adults and in conditions that take into account the child’s age and sex, among other related rights. These provisions must be interpreted to apply to all aspects of the law, civil or criminal which affect the child bearing in mind the principle of the best interest of a child. In other words, beyond article 53, all the other rights in the Constitution apply to children, as human beings unless they are excluded because such rights only apply to adults, for example, the right to vote or to marry.
48.
The best interest of a child principle is also reflected in international law. It is, for instance, one of the four core principles of the United Nations Convention on the Rights of the Child (CRC), which provides that;
“
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.
In identical language, article 4 of the African Children’s Charter restates the principle that “the best interests of the child shall be the primary consideration.” Both instruments, we confirm, have been ratified by Kenya.
49.
Again, in fulfillment of its commitment to undertake all appropriate legislative and other measures to implement the rights under the Conventions, Kenya enacted the Children Act, 2001 (Repealed). Section 4(2) and (3)(b) thereof which was the applicable law when this dispute arose, again in the very language of the two Conventions restated the principle in the following words:
“
(2).
In all actions concerning children whether undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.
(3).
All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
a.
Safeguard and promote the rights and welfare of the child;
b.
and promote the welfare of the child;
c.
…”
50.
So, what does “the best interest” of the child mean, and what is its rationale and scope? Since the best interest of a child will vary from case to case depending on the situation, its determination and what constitutes it will depend on the unique circumstances of each case as we recently explained in MAK v RMAA & 4 others, SC Petition No 2 (E003) of 2022; [2023] KESC 21 (KLR). We said that;
“
The concept of the child’s best interest is flexible and adaptable. It should be adapted and defined on an individual basis, according to the specific situation of the child concerned considering their personal context, situation and needs.”
51.
For the same reason, that a child’s best interest is pliable, the term has not been defined by the Constitution or the two Conventions. However, the First Schedule to the Children Act, 2022 lists 18 situations (not exhaustively) of what may constitute the best interests of the child headed “Best Interest Considerations”. It is important to appreciate the rationale behind this principle and why children require special treatment. We can do no better than reproduce the following explanation in the judgment of the majority in the Constitutional Court of South Africa in the case of Centre for Child Law v Minister of Justice 50[(CCT98/08) [2009] ZACC 18, where Cameron J, said:
“
We distinguish them because we recognise that children's crimes may stem from immature judgment, from as yet unformed character, from youthful vulnerability to error, to impulse, and to influence. We recognise that exacting full moral accountability for a misdeed might be too harsh because they are not yet adults. Hence, we afford children some leeway of hope and possibility.”
[52]
Those sentiments were echoed in another case before the same court in the case of J v National Director of Public Prosecution, 59[CCT 114/13) [2014] ZACC 13, as follows:
“
The contemporary foundations of children's rights and the best-interests principle encapsulate the idea that the child is a developing being, capable of change and in need of appropriate nurturing to enable her to determine herself to the fullest extent and to develop her moral compass. This court has emphasised the developmental impetus of the best-interests principle in securing children's right to learn as they grow how they should conduct themselves and make choices in the wide and moral world of adulthood'. (Per Skweyiya, J)",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/68/eng@2023-09-08
Application E029 of 2023,Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others (Application E029 of 2023) [2023] KESC 69 (KLR) (8 September 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",8 September 2023,2023.0,Nairobi,Civil,Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others,[2023] KESC 69 (KLR)               ,,"Brief facts
At the High Court, appellant filed a petition that contended that the taxing provisions of the Finance Act, 2023 were unconstitutional. The High Court certified the matter as urgent and granted conservatory orders suspending the application of the Finance Act, 2023. 
Aggrieved the State appealed against the conservatory orders. The Court of Appeal under rule 5(2) of the Court of Appeal Rules lifted the conservatory orders on grounds of public interest. Aggrieved the appellant filed the instant appeal in which it sought for the Supreme Court to vacate the Court of Appeal’s decision.
Issues
Whether the Supreme Court had jurisdiction to entertain an appeal arising from exercise of the Court of Appeal’s discretion under rule 5(2)(b) of the Court of Appeal Rules.
Whether it was irregular for parties to file joint submissions as well as separate submissions at the same time.
Whether applications filed out of time without leave of the Supreme Court on grounds that the delay was occasioned by the Supreme Court’s online filing platform could be allowed.
Whether a litigant who had named the Judges of the Supreme Court in a derogatory manner in a video clip could be held to be in contempt of court.","Before us is a notice of motion dated August 5, 2023 filed at the instance of the applicants. The motion which is anchored on articles 1, 2, 3(1), 22, 43, 47, 73, 75, 129, 153(4)(a), 159, 163(4)(a) & (b), 201(d), 210(1), 226(5), 227(1) & 259 of the Constitution seeks inter alia orders that-
“
i.
…
ii.
This honourable court be pleased to suspend or stay the ruling delivered on July 28, 2023 and the orders granted on the same date by the Court of Appeal in Civil Application Nos E304 & E310 of 2023.
iii.
This honourable court be pleased to suspend or stay the intended proceedings in the Court of Appeal as ordered/directed by the superior court in Civil Application Nos E304 & E310 of 2023 …”
2.
The salient facts which culminated in the motion revolve around the annual national budgetary process for the 2023/2024 financial year. More specifically, the enactment of the Finance Act, 2023 (the Act) which sets out the revenue raising measures for the National Government. The applicants together with the 9th to 11th respondents herein lodged a petition in the High Court, HC Petition No E181 of 2023, on May 31, 2023. The petition challenged the constitutionality and validity of the Finance Bill, 2023 (the Bill), which was the precursor to the Act. However, before the petition could be heard, the Bill was passed by the National Assembly on June 21, 2023. It was later assented to by the President on June 26, 2023 resulting in the Act.
3.
Subsequently, on June 29, 2023 an amended petition reflecting the prevailing changed circumstances was filed before the High Court. The amended petition challenges the constitutionality of the Act on procedural and substantive grounds. In a nutshell, that, the Act was not subjected to the preliminary mandatory concurrence process of the speakers of the two houses of parliament as envisaged under article 110(3) of the Constitution. Some of its provisions were not subjected to public participation as they were sneaked in on the floor of the National Assembly. Further, that it dealt with matters outside its intended scope under article 114 of the Constitution.
4.
Contemporaneously, the applicants and the 9th to 11th respondents also filed an application under a certificate of urgency seeking interlocutory orders on even date. Its main ground was that a substantial portion of the Act was scheduled to come into effect on July 1, 2023. Consequently, they sought conservatory orders suspending the Act or specified provisions thereof which they believed were sneaked in or were not considered by the Senate and an interim prohibition order stopping the 1st to the 8th respondents herein from giving effect to the Act or the specified provisions thereof. They also implored the High Court to certify, pursuant to article 165(4) of the Constitution, that the amended petition raises substantial questions of law.
5.
Upon the application being placed before Thande, J on June 30, 2023, the learned judge certified it as urgent. She also issued ex-parte conservatory orders suspending the Act pending the determination of the application.
6.
The 3rd and 4th respondents opposed the above application on the grounds that, firstly, the ex-parte orders had been obtained through misrepresentation and deliberate concealment of material facts. In that, the two Speakers of Parliament had jointly resolved that the Bill did not affect county governments. That the said position was within the applicants’ and the 9th to 11th respondents’ knowledge as well as evidenced by the correspondence exchanged. Secondly, that the Act was enacted in accordance with the Constitution and the Public Finance Management Act. Thirdly, that the national government’s main source of revenue is taxes and the Act is intended to foster the collection of revenue of over Kshs 211 billion. Accordingly, they argued that the suspension of the Act was bound to hinder the collection of such revenue which is not capable of being recovered in the event the amended petition is unsuccessful.
7.
Fourthly, that taxation is a policy decision which falls within the exclusive mandate of the Executive. As such, the court lacked jurisdiction to delve into policy decisions. Lastly, that the applicants and the 9th to 11th respondents had not met the threshold to warrant the issuance of the orders sought. It is on the premise of the aforementioned grounds that they also lodged an application dated June 30, 2023 seeking inter alia, variation and setting aside of the ex-parte orders.
8.
Equally, the 1st and 2nd respondents filed an application dated July 1, 2023 seeking variation and setting aside of the ex-parte orders. Their application was based on more or less similar grounds as the 3rd and 4th respondents, save that they asserted, in addition, that the learned Judge ought to have exercised judicial restraint in favour of an inter-partes hearing of the application for conservatory orders as opposed to issuing the ex-parte orders.
9.
The 5th, 6th and 8th respondents also opposed the application for grant of conservatory orders on the same grounds as the 1st, 2nd, 3rd and 4th respondents. However, the 5th respondent added that the Act and the impugned provisions therein enjoyed a presumption of constitutionality. The presumption could only be rebutted after the amended petition was heard and determined on merit. Accordingly, in his opinion, conservatory orders or suspension of the Act could not issue at the interlocutory stage.
10.
The application for conservatory orders and the two applications seeking to set aside the ex-parte orders were heard together by Thande, J. By a ruling dated July 10, 2023, the learned judge found that the applicants and the 9th to the 11th respondents had established a prima facie case with a probability of success. Further, that unless the conservatory orders were extended, there was real likelihood that the amended petition would be rendered a mere academic exercise. In her view, the prejudice that would be occasioned to the public by being subjected to a law which may be determined as unconstitutional far outweighed the prejudice that would be occasioned to the 1st to 8th respondents should the amended petition fail. Ultimately, the learned Judge allowed the application for conservatory orders and dismissed the two applications seeking to set aside the ex-parte orders. She also certified that the amended petition raises substantial questions of law; and remitted the matter to the Chief Justice to empanel a Bench of an uneven number of Judges of the High Court to determine the same.
11.
Thereafter, the 1st and 2nd respondents, on one hand, and the 3rd and 4th respondents, on the other, filed notices of appeal intimating their intention to challenge the High Court’s decision in the Court of Appeal. They further filed applications before the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules. The 1st and 2nd respondents filed Civil Application No E304 of 2023 while the 3rd and 4th respondents filed Civil Application No E310 of 2023. Both applications sought stay of the conservatory orders issued by the High Court on July 10, 2023.
12.
The applications were anchored on the grounds that; the intended appeals were arguable with high probability of success; the manner in which the High Court dealt with the application for conservatory orders amounted to judicial overreach; the suspension of the Act has the effect of halting the operations of the government; the government stands to suffer substantial financial loss in reduced revenue collection which cannot be recovered; the effect of the conservatory orders are dire and irreversible; and public interest would be best served in issuing orders of stay.
13.
In similar fashion, the 5th, 6th and 8th respondents supported the applications. However, the applicants, the 9th and 11th respondents` opposed the applications contending that they had not met the requisite principles to warrant the orders sought. To them, public interest lay in not interfering with the conservatory orders issued by the High Court.
14.
Upon hearing Civil Application No E304 of 2023, the Court of Appeal vide a ruling dated July 28, 2023 found that the intended appeals raised arguable points. Further, unlike the High Court, the court found that public interest tilted in favour of staying the conservatory orders issued by the High Court. As a result, the Court of Appeal granted orders under its rule 5(2)(b) and lifted the conservatory orders suspending the Act pending the hearing and determination of the intended appeals. The court indicated that its decision would also apply to Civil Application No E310 of 2023. It also went on to issue the following directions:
""i.
We direct the applicants (the 1st, 2nd, 3rd and 4th respondents herein) to file their appeals within the next 14 days.
ii.
Parties to file and serve their submissions within the next 30 days.
iii.
Both appeals be heard and determined within 60 days from the date of this ruling.”
15.
Aggrieved by the Court of Appeal decision, the applicants lodged an appeal, Petition No E022 of 2023, as well as the current motion before this court. In support of the motion, the applicants lodged an affidavit sworn by the 1st applicant on August 5, 2023 and joint written submissions of even date. It is instructive to note at this juncture that the said submissions were 48 pages long contrary to this Court’s Practice Direction No 17(a)(i). The practice direction in question provides that submissions in relation to appeals from the Court of Appeal should not exceed 15 pages.
16.
The motion which was lodged under a certificate of urgency was placed before the duty Judge (Njoki, SCJ) on August 8, 2023. On the same day, the duty judge certified the matter as urgent and issued the following orders:
“
i.
…
ii.
That the applicants do serve the notice of motion dated August 5, 2023 together with submissions on the respondents by close of business on Wednesday August 9, 2023.
iii.
That upon service, the respondents do file and serve their responses together with the submissions within seven (7) days.
iv.
That the applicants do file and serve any rejoinder (if any) together with supplementary submissions within seven (7) days from service of the responses.
v.
All documents shall be filed both in hard and soft copies…”
17.
Based on the aforementioned timelines, the respondents ought to have filed their responses and/or submissions on or before August 16, 2023. It follows therefore that the applicants should also have lodged their rejoinder, if any, on or before August 23, 2023.
18.
Subsequently, on August 15, 2023, each applicant, without leave of the court, filed written submissions in support of the motion on the court’s online platform. They availed the hard copies thereof on August 16, 2023. The logical inference from such filing is that the applicants intended to remedy the anomaly in their initial joint written submissions. The applicants admitted as much when the matter was mentioned before the Deputy Registrar of this court on August 25, 2023.
19.
As for the respondents, who filed their responses and submissions on record, they admitted during the said mention that they had done so outside the stipulated time frame. More specifically, the 1st and 2nd respondents filed a replying affidavit sworn by Prof Njuguna Ndungu as well grounds of opposition on August 17, 2023 on this court’s online platform. They further lodged written submissions on August 25, 2023 on the online platform. Afterwards, they only availed hard copies of the replying affidavit and their written submissions at the court’s registry on August 28, 2023.
20.
Mr Mutinda, who appeared for the said espondents, attributed the delay to multiple litigation relating to the Act pending before the superior courts below. He went on to explain that his clients were required to file responses in a total of 12 matters within the same timelines as the motion at hand. Owing to voluminous documentation and complexity of the matters, it was overwhelming to meet the timelines set by this court, he submitted. He also urged that no prejudice had been occasioned by the delay. In the end, he asked the Deputy Registrar to indulge the 1st and 2nd respondents and deem their pleadings as duly filed the delay notwithstanding.
21.
The 3rd and 4th respondents filed their written submissions on time on the online platform, that is, on August 16, 2023. However, they lodged a notice of preliminary objection on August 17, 2023 on the said platform. They later availed the hard copies on August 22, 2023. Mr Mbarak who appeared for the 3rd and 4th respondents attributed the delay to the same grounds as the 1st and 2nd respondents. He also asked the Deputy Registrar to deem their pleadings as having been properly filed.
22.
The 5th respondent filed a replying affidavit sworn by Josephine Mugure and written submissions on August 17, 2023 on the court’s online platform. He equally availed the hard copies thereof on even date. On his part, Mr Muhoro, who appeared for the 5th respondent submitted that the delay was occasioned by difficulties that he experienced with the court’s online platform on August 16, 2023. He claimed that he sent an email to the court on the same and attached copies of the 5th respondent’s pleadings. Nonetheless, he sought the court’s indulgence to deem the pleadings as being properly before it.
23.
Similarly, the 8th respondent lodged a replying affidavit sworn by David Benedict Omulama and written submissions on August 17, 2023 on the court’s online platform. The hard copies thereof were also availed on even date. However, there was no appearance for the 8th respondent when the matter was mentioned before the Deputy Registrar. As such, no explanation was offered for the delay in filing all documents within time.
24.
Lastly, the 9th respondent also filed his replying affidavit and written submissions on August 17, 2023 on the court’s online platform. He only availed the hard copies of the replying affidavit on August 28, 2023. Like others, the 9th respondent attributed the delay in meeting the set timelines to multiple litigation and voluminous documentation. He also submitted that the delay was not deliberate and urged the court to admit his pleadings out of time.
25.
At the conclusion of the mention, the Deputy Registrar indicated that he lacked jurisdiction to vary the orders issued by the duty Judge on August 8, 2023. Consequently, he directed that the effect of non-compliance would be determined by the court. He also declined to grant leave to the 3rd applicant to file a rejoinder.
26.
Taking all the above matters into account, we must state that, this court has on several instances underscored the importance of compliance with its orders, rules and practice directions. With regard to filing and service of documents within the requisite time, the court has in a long line of decisions stressed that it will not countenance breaches of timelines set by the rules or by the court, and affirmed the general constitutional principle that justice shall not be delayed. See Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others, SC Petition No 5 of 2016; [2018] eKLR and Kenya Railways Corporation & 2 others v Okoiti & 3 others, SC Petition (Application) No 13 of 2020 & Petition 18 of 2020 (Consolidated)); [2022] KESC 68 (KLR). It goes without saying that compliance with court orders goes to the root of the rule of law as well as the dignity of any court.
27.
Neither the Supreme Court Act nor the Supreme Court Rules or this court’s Practice Directions permit the applicants to file written submissions in the manner that they did. Rule 31 of this court’s Rules stipulates that an interlocutory application, such as the applicants’, should be filed together with written submissions. Therefore, we find it irregular for parties to file joint submissions as well as separate submissions at the same time. Not only would it be repetitive but also unnecessary and a waste of precious judicial time. In any event, based on the directions issued, the applicants’ submissions were to be served together with the motion. In the end and without belabouring the point, we hereby strike out the four sets of the applicants’ written submissions. In addition, we caution litigants to adhere to the court’s practice directions relating to the length of written submissions lodged before the court, as explained in the preceding paragraph.
28.
Moving onto the respondents’ responses and/or submissions, we are not convinced with the explanation for the delay. To begin with, litigants and advocates should accord this court the respect and decorum it deserves as the apex court of the land. Further, nothing has been placed before us to substantiate the contention by the 5th and 9th respondents that the delay was occasioned by difficulties in accessing the court’s online platform.
29.
Be that as it may, to accede to the respondents’ prayer to deem the responses and/or submissions filed out of time as properly before the court is tantamount to sanctioning an illegality. The respondents ought to have first sought leave of the court to file their responses out of time prior to filing the same. See Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Application No 16 of 2014; [2014] eKLR and University of Eldoret & another v Hosea Sitienei & 3 others, SC Application No 8 of 2020; [2020] eKLR. Consequently, save for the 3rd and 4th respondents submissions, we strike out the responses and submissions filed out of time without leave of the court.
30.
Turning to the substance of the motion before us the gist of the affidavit in support of the motion and the applicants’ joint submissions is that the appeal lodged before this court is anchored on article 163(4)(a) of the Constitution. The core of the dispute also revolves around the interpretation and application of the Constitution, specifically article 23(3)(c) of the Constitution which deals with conservatory orders. According to the applicants, the manner in which the Court of Appeal interpreted and applied article 23(3) and its own mandate under article 164(3) and rule 5(2)(b) of the Court of Appeal Rules resulted in constitutional injustice. They claimed that the appeal seeks to preserve the substratum of the matter pending before the High Court.
31.
The applicants acknowledged that this court has held that it is bereft of jurisdiction to entertain appeals arising from rule 5(2)(b) of the Court of Appeal Rules. Nonetheless, citing Bia Tosha Ltd v Kenya Breweries Ltd & 6 others, SC Petition No 15 of 2020 [2023] KESC 14 KLR (Bia Tosha 2020), they contended that this court has equally pronounced itself on exceptional circumstances that would warrant it to entertain such an appeal. Towards that end, they posited that the nature of the constitutional dispute in issue; the fact that it is yet to be heard and determined by the High Court; and the jurisdictional error committed by the Court of Appeal in the matter at hand, fall within the exceptional circumstances.
32.
To further bolster their argument on this court’s jurisdiction, the applicants relied on Deynes Muriithi & 4 others v Law Society of Kenya & another, SC Applic No 12 of 2015; [2016] eKLR. In that regard, they argued that the impugned ruling and orders has caused grave injustice to the applicants by pre- empting the substance of the proceedings before the High Court. Further, that the ruling was inconsistent with the Court of Appeal’s earlier decision in Denis Njue Itumbi v Law Society of Kenya & 55 others, Civil Applic No E126 of 2023 in that, in the aforementioned case, the court was faced with a similar application under rule 5(2)(b) seeking to lift interlocutory conservatory orders, which were issued ex-parte by the High Court. However, unlike the matter at hand, the Court of Appeal declined to allow the application on the ground that it was premature. This is because the court found that the High Court had not made any substantive decision capable of being challenged on appeal.
33.
Based on the foregoing, the applicants implored this court to invoke its inherent jurisdiction and correct the injustice occasioned by the impugned ruling. More so, it ought to do so in line with its mandate to assert the supremacy of the Constitution and to provide authoritative and impartial interpretation of the Constitution under section 3 of the Supreme Court Act.
34.
On the arguability of its appeal before this court, they urged that the Court of Appeal lacked jurisdiction to entertain the applications before it, because, according to the applicants, there was no decision from the High Court on merits of the amended petition. Therefore, the applications before the Court of Appeal were premature. Consequently, relying on Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1, they argued that the impugned ruling was a nullity and void for want of jurisdiction.
35.
The applicants furthermore submitted that the impugned ruling not only validated but allowed the Act to take effect immediately. In other words, the Court of Appeal unjustly predetermined and/or disposed the substance of the amended petition pending before the High Court and intended appeals, which at the time were yet to be filed before it. In turn, the applicants’ right to fair hearing and access to justice under articles 25(c), 50(1) and 48 of the Constitution were violated.
36.
They also asserted that the learned Judges erred in finding that the intended appeals to the Court of Appeal were arguable. In their view, disposal of the intended appeals would entail delving into the substratum of the matter pending before the High Court. Furthermore, it would elicit comments on the merits of issues yet to be adjudged at the High Court.
37.
They, in addition, faulted the learned Judges of appeal for failing to apply the binding test as stipulated by this court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No 5 of 2014; [2014] eKLR in exercising their discretion under rule 5(2)(b). The binding test being consideration of; (i) merits of the case, (ii) public interest and (iii) preserving constitutional values. Instead, they claimed that the Court of Appeal applied an outdated test which is only applicable in private law disputes contrary to the principle of stare decisis as delineated under article 163(7) of the Constitution.
38.
Moving on to the nugatory aspect, they reiterated that the impugned ruling gravely prejudiced the proceedings pending before the High Court. Therefore, unless the orders sought are granted, the hearing of the amended petition before the High Court will be a mere academic exercise.
39.
Moreover, they argued that it is unconscionable to subject Kenyan taxpayers to the excesses of the Act yet the High Court had found that a prima facie case, to the effect that, the Act is unconstitutional, had been established. Further, taxpayers would suffer irreparable harm in the event the amended petition in High Court succeeds.
40.
Lastly, they argued that the orders sought will not dispose the intended appeals before the Court of Appeal. Rather, the exceptional circumstances of this matter demand preservation of the substratum of the matter before the High Court by granting the orders sought.
41.
In their submissions, the 3rd and 4th respondents contended that this court is devoid of jurisdiction to entertain the motion. More so, since it challenges the exercise of the Court of Appeal’s discretion under rule 5(2)(b) of the Court of Appeal Rules yet there is neither an appeal nor intended appeal pending before this court. To buttress their position reference was made to Teachers Service Commission v Kenya National Union of Teachers & 3 others , SC Applic No 16 of 2015; [2015] eKLR; Daniel Kimani Njihia v Francis Mwangi Kimani & another, SC Applic No 3 of 2014 [2015] eKLR and Okiya Omtatah Okoiti v Sicpa Securities Sol Sa & 2 others, SC Applic No 15 of 2018; [2019] eKLR.
42.
They also submitted that, two appeals have since been filed before the Court of Appeal as per the impugned ruling. These are Civil Appeal No E598 of 2023- National Assembly & Speaker of the National Assembly v Okiya Okoiti Omtatah, Eliud Matindi & 11 others; and Civil Appeal No E623 of 2023 - State Law & another v Okiya Okoiti Omtatah, Eliud Matindi & 11 others. Further, that the Court of Appeal had directed that the said appeals, which are pending, be determined within 60 days of the impugned ruling. Therefore, in their view, the motion is premature since there is no judgment by the Court of Appeal wherein constitutional issues or matters of general public importance have been canvassed. In that regard, they cited Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others, SC Petition No 22 of 2014; [2018] eKLR. Consequently, the 3rd and 4th respondents claimed that the motion is incompetent and should be struck out with costs.
43.
Before delving into the merits of the motion, we have to address the issue of jurisdiction. Jurisdiction is a pre-requisite for a court before it delves into any matter before it. A court’s jurisdiction flows from either the Constitution or legislation. Further, a court cannot bestow upon itself jurisdiction beyond what is conferred by the law. See Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others, SC Applic No 2 of 2011; [2012] eKLR.
44.
The Motion at hand arises from the exercise of the Court Appeal’s discretion under rule 5(2)(b) of the Court of Appeal Rules. It is well settled that the purpose of rule 5(2)(b) is to preserve the substratum of an appeal or intended appeal before the Court of Appeal. Equally, the Court of Appeal in issuing orders under rule 5(2)(b) exercises original and discretionary jurisdiction. It does not dispose of the appeal or intended appeal before it. In other words, it does not make definitive findings on the substantive merits of the appeal or intended appeal. See the Court of Appeal decision in Equity Bank Limited v West Link Mbo Limited, Civil Applic No 78 of 2011; [2013] eKLR.
45.
Moreover, this court has time and time again pronounced itself on its jurisdiction to entertain applications challenging the exercise of the Court of Appeal discretion under rule 5(2)(b). Some of those decisions have been cited by the parties herein. In the Teachers Service Commission case this court held that it lacked jurisdiction to determine such applications. In doing so, the court observed that in exercising its discretion under rule 5(2)(b), the Court of Appeal does not determine the appeal before it. Therefore, there is no substantive determination of either a constitutional question or matter of general public importance by the Court of Appeal, which has risen from the High Court to the Court of Appeal. Consequently, such an application does not meet the constitutional parameters of this court’s appellate jurisdiction under article 163(4) of the Constitution. See also Sonko v Clerk County Assembly of Nairobi City & 11 others, SC Applic No 14 (E022) of 2021; [2021] KESC 14 (KLR).
46.
Flowing from the foregoing, we find that the motion does not fall within the court’s appellate jurisdiction under article 163(4)(a) as invoked by the applicants. We are equally not convinced that the decision of the Court Appeal has occasioned grave injustice to warrant invocation of our inherent jurisdiction as we did in the Deynes Muriithi case. Besides, the intended appeals before the Court of Appeal have since been filed and are to be disposed within 60 days of the impugned ruling. Furthermore, the hearing of the amended petition before the High Court is scheduled to commence this September, 2023. In the circumstances, we find that the issues in dispute would be properly ventilated in the appeals before the Court of Appeal as well as in the amended petition before the High Court.
47.
Before we conclude, it is important to point out that the applicants misapprehended the tenor of this court’s decision in Bia Tosha 2020. It is important to clarify that this court in the said decision did not pronounce itself on any exceptional or unique circumstances that would warrant it to entertain an appeal emanating from rule 5(2)(b) as alluded by the applicants. The appeal also did not arise from an order made under rule 5(2)(b) and we reiterated the settled position that this court lacks jurisdiction to entertain an appeal arising from exercise of the Court of Appeal’s discretion under the said rule. Furthermore, in entertaining the appeal therein, which arose from an interlocutory ruling of the High Court granting conservatory orders, we were satisfied that it had met the threshold under article 163(4)(a) of the Constitution, in that, the issue in dispute had been considered and determined on merit by the High Court as well as the Court of Appeal. See Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013 [2014] eKLR. Therefore, the circumstances in the Bia Tosha 2020 are distinguishable from those in the motion at hand.
48.
Lastly, taking into account the public interest nature of the motion and guided by this court’s decision on costs enunciated in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others; SC Petition 4 of 2012; [2013] eKLR, we make no orders as to costs.
49.
Before issuing final orders, our attention has been drawn to a video clip circulating in the public domain showing, Okiya Omtatah Okoiti, the 1st applicant in the instant motion, naming judges of this court in a derogatory manner, even as this matter was pending before us. We must remind parties that the dignity and authority of this court or indeed any court of law should not be taken for granted. We would like to state without any equivocation that we shall not hesitate to cite and punish any party or person whose conduct interferes or attempts to interfere with the course of justice in relation to any matter pending determination before the court or whose conduct deliberately undermines the court’s authority or dignity. We find the message delivered in that video clip contemptuous and debasing of the dignity of this court.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/69/eng@2023-09-08
Application E012 of 2021,Vulcan Lab Equipment Ltd v Ethics and Anti Corruption Commission & another (Application E012 of 2021) [2023] KESC 70 (KLR) (Civ) (8 September 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",8 September 2023,2023.0,Nairobi,Civil,Vulcan Lab Equipment Ltd v Ethics and Anti Corruption Commission & another,[2023] KESC 70 (KLR)               ,,"Brief facts
The applicant filed an originating motion dated April 30, 2021 seeking review of the ruling declining to grant certification. The applicant also filed a notice of motion dated April 13, 2023 and filed on June 7, 2023 seeking leave to amend the originating motion. The applicant contended that the Court of Appeal when declining to grant certification, failed to appreciate that private citizens entered into contracts with Government agencies all the time and the procurement law was structured in a way that private citizens lacked the means of knowing whether the officials of those Government agencies had complied with their statutory obligations and internal policies, before entering into such contracts. The applicant contended that the intended appeal met the threshold to be certified as a matter of general public importance. 
The notice of motion sought leave to the originating motion on grounds that the applicant failed to include the orders it was seeking in the originating motion. The 1st respondent opposed the notice of motion on grounds that: the application was filed two years after the original originating motion of April 30, 2021, hence the inordinate delay in filing the application had not been explained; should such an extension be granted, it would have been extended by a huge margin; and the application was a futile exercise and an abuse of the court’s process. 
Issues
What was the effect of failure to file the printed  of a pleading at the Supreme Court, after filing the electronic ? ","This ruling will dispose of two applications by Vulcan Lab Equipment Ltd, the applicant. The first is an originating motion dated April 30, 2021 seeking review of the ruling declining to grant certification. The second is the notice of motion dated April 13, 2023 and filed on June 7, 2023 seeking leave to amend the originating motion dated April 30, 2021 and filed on June 7, 2023.
2.
Uponperusing the originating motion dated April 30, 2021 brought under article 163(4)(b) of the Constitution of Kenya, section 16 of the Supreme Court Act, and rule 33(2) and (3) of the Supreme Court Rules seeking a determination of the following questions:
i.
Whether the indoor management rule is binding on semi-autonomous government agencies;
ii.
Whether the Supreme Court should determine the conflicting position taken bycourt vis a vis the indoor management rule’s applicability to semi-autonomous government agencies and government agencies;
iii.
Whether an acquitted/innocent contracting party can be faulted on account of the failure of a semi-autonomous government agency to follow its own internal procurement procedures;
iv.
Whether imputations of corruption can legitimately be attached or attributed to a litigant who has already been acquitted by the criminal court on the basis of the indoor management rule;
v.
Whether an acquittal from which there is no challenge, entitles the acquitted party the presumption of innocence in law and whether another court can separately condemn the innocent party based on the same set of facts;
vi.
Whether the presumption of innocence can be displaced by the civil court (Court of Appeal) in making a decision to deny the applicant a contractual remedy;
vii.
Whether innocent third parties, in dealing with a semi-autonomous government agency, are required to be satisfied that its officials have followed relevant statutory requirements, and if so, (i) to what extent does the law impose such a duty, and (ii) to what extent should an innocent third party look into the internal arrangements of the government agency during its procurement process;
viii.
Whether the civil court should deny an innocent contracting party its contractual and legal remedies where there are public servants that have been found guilty and convicted of the offence;
ix.
Whether the application of the indoor management rule to transactions with semi-autonomous government agencies or government agencies transcends the specific circumstances of this particular case and has a significant bearing on the public interest;
x.
Whether the determination of this issue shall have a significant bearing on the public interest; and
3.
Uponalso considering the grounds in support of the application in the supporting affidavit sworn on April 30, 2021 by Vishal Kochar, the applicant’s managing director, where he further contends that the Court of Appeal in declining to grant certification, failed to appreciate that private citizens enter into contracts with government agencies all the time and the procurement law is structured in a way that private citizens lack the means of knowing whether the officials of those government agencies have complied with their statutory obligations and internal policies, before entering into such contracts;
4.
Alsoconsidering the applicant’s written submissions dated January 10, 2022 contending that the applicant’s intended appeal meets the threshold to be certified as a matter of general public importance having met the principles outlined in Town Council of Awendo v Nelson Oduor Onyango & 13 others [2015] eKLR; that the issue(s) to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case and has a significant bearing on the public interest and that the issues raised in the intended appeal raise questions with a bearing on the proper conduct of the administration of justice; and
5.
Furtherconsidering the 1st respondent’s written submissions dated July 14, 2023 wherein it is urged that the application for review has not met the requirements for the grant of orders under article 163(4)(b) and article 163(5) of the Constitution as was set out in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR as it fails to raise issues of general public importance; that there is nothing novel about the issues raised by the applicant; that the application fails to raise any issue where the law requires clarification or the uncertainty that the court needs to clear and clarify; that the applicant has also failed to demonstrate that the intended appeal raises matters that are relevant to real public interest and concern since the questions raised by the applicant as issues of public importance are purely contractual, arising out of a transaction executed between the applicant and the School Equipment Production Unit, the 2nd respondent, therefore not capable of transcending the circumstances of the case; and
6.
Notingthe averments in the 2nd respondent’s replying affidavit sworn on July 17, 2023 by George Korongo, Advocate, the grounds of opposition and written submissions dated July 17, 2023, wherein it is contended that the questions raised by the applicant do not transcend the circumstances of this particular case; that the application does not meet the requirements of article 163(4)(b) of the Constitution; that the applicant has failed to demonstrate that there is uncertainty regarding the state of the law and; that the determination of facts in context between parties cannot be in itself a basis for granting certification for an appeal to the Supreme Court; and
7.
Bearing in mind that the applicant has also filed a notice of motion dated April 13, 2023 pursuant to the provisions of article 163 of the Constitution, section 3 & 3A of the Supreme Court Act and rules 3 and 31 of the Supreme Court Rules seeking leave to amend its originating motion dated April 30, 2021 on grounds that the applicant failed to include the orders it is seeking in the Originating Motion being:
i.
The Supreme Court does review and set aside the decision of the Court of Appeal in Nairobi Civil Application No Sup 12 of 2020 declining to certify the questions as raising matters of general public importance;
ii.
The Supreme Court does review and set aside the said decision rejecting the request for certification on the grounds that the issues raised in the intended appeal are not novel and they do not transcend the dispute between the parties herein;
iii.
The Supreme Court does review the said ruling and declare that the Court of Appeal erred in law in failing to certify the matters herein as raising questions of general public importance deserving to be considered by the Supreme Court on appeal;
iv.
The Supreme Court does grant leave to the applicants to appeal against the decision of the Court of Appeal in Nairobi Civil Appeal No 197 of 2018;
v.
Costs of this application to be provided for; and
8.
Notingthe grounds in the applicant’s supporting affidavit sworn by Vishal Kochhar on April 13, 2023 and the written submissions dated April 13, 2023 where the applicant submits that the application for amendment of the originating motion is meritorious; that this court has the inherent power to make such orders or give such directions as may be necessary for the ends of justice; that the application seeks to correct an inadvertent mistake to the extent of including the orders sought in the application to enable the court to adjudicate over the real issues in dispute and that the respondents are not likely to suffer any prejudice; and
9.
Also considering the 1st respondent’s grounds of opposition and written submissions dated June 14, 2023 opposing the notice of motion on grounds that the application was filed two years after the original originating motion of April 30, 2021, hence the inordinate delay in filing the application has not been explained; that should such an extension be granted, it will have been extended by a huge margin and; that the application is a futile exercise and an abuse of the court’s process;
10.
We now opine as follows:
i.
As a matter of fact, the applicant filed its originating motion dated April 30, 2021 on this court’s e-filing online platform on April 30, 2021, which was the last day for filing an application seeking review of a certification ruling from the Court of Appeal. The invoice from the e-filing platform proves this. As per rule 33(2) of this Court’s Rules, such a review should be sort within 14 days. Rule 33(2) of this Court’s Rules provides that:
“
Where the Court of Appeal has certified or has declined to certify a matter as one of general public importance, an aggrieved party may apply to the court for review, within fourteen days.”
ii.
However, the applicant failed to also file the printed  of the originating motion and only proceeded to present the physical  on June 7, 2023, almost two years after filing the electronic . Rule 12 of this court’s rules is instructive as it provides that:
“ (1)
Pleadings and any other document filed in the court shall be in both printed and electronic form.
2.
A party filing any document shall ensure consistency in the printed and the electronic forms.
3.
Incase of any inconsistency between the hard  and soft , the hard  shall prevail.
4.
Where a document is lodged in a sub-registry, the deputy registrar receiving the same shall transmit it to the Registry.""
iii.
In Sonko v Clerk, County Assembly of Nairobi City & 11 others, SC Petition (Application) No 11 (E008) of 2022; [2022] eKLR, we discussed the import of rule 12 of the Supreme Court Rules by finding that:
“
A plain reading of the rule would lead to the simple conclusion, as properly expressed by the Registrar in her letter of May 18, 2022 that the printed  of any pleading, while matching the electronic , shall be filed simultaneously with the latter. This must remain the operative rule in this court.” [Emphasis added]
iv.
There is no doubt that the applicant has physically filed its originating motion almost two years from the date of delivery of the ruling, more specifically, a delay of 1 year and 11 months. What do we take of the applicant’s actions of sitting on the printed  for a period of almost two years? Can the motion be deemed to be properly before us? The originating motion, although filed electronically, failed to comply with the procedure provided for under rule 12 of the Court’s Rules. In Kenya Hotel Properties Limited v Attorney General & 5 others, SC Application No 2 (E004) of 2021 [2021] eKLR, we specifically held that filing is complete when a party submits pleadings and documents in both printed and electronic form. It was our finding that:
“Be it as it may, we have perused the record and noted that the said Supplementary Record, although electronically filed, did not comply with the filing procedures provided for under rule 12(1) of the Supreme Court Rules, 2020 which state that filing is complete when a party submits both printed and electronic form. Therefore, for our purpose, the said supplementary record is not properly filed.”
v.
The applicant did not provide an explanation as to why he failed to present the printed copies to the registry as is required under this court’s rules. Instead, the applicant proceeded to file another application seeking leave to amend its application for review, though being fully aware that it had sat on the printed  of the originating motion. We thus find that the originating motion dated April 30, 2021, having been filed on June 7, 2023 was not properly filed. As a corollary, the applicant’s notice of motion dated April 13, 2023 and filed on June 7, 2023 falls by the wayside as it has no leg to stand on.
vi.
Costs follow the event, and therefore the applicant shall bear the costs of the respondents.
11.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/70/eng@2023-09-08
Petition (Application) E014 of 2023,Ashmi Investment Limited v Riakina Limited & another (Petition (Application) E014 of 2023) [2023] KESC 66 (KLR) (4 August 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",4 August 2023,2023.0,Nairobi,CIvil,Ashmi Investment Limited v Riakina Limited & another,[2023] KESC 66 (KLR)               ,,"Brief facts
The applicant contended that they were the registered owner of the suit properties as allocated to it having paid the allotment fees. The Court of Appeal affirmed its judgment upheld the High Court decision cancelling the applicant’s survey, deed plan and the resultant titles to the suit properties. Aggrieved the applicant filed the instant appeal on grounds that the decisions were reached without any cogent proof of illegality or fraud tendered by the 1st respondent; and that it did not violate the doctrine of lis pendens as the titles issued during the pendency of the trial were a culmination of the registration process.
The respondent filed a preliminary objection on grounds that the appeal was frivolous as the Supreme Court lacked jurisdiction as moved by the appellant and that the notice of appeal was filed out of time contrary to rule 36 (1) of the Supreme Court Rules.
Issues
Whether a dispute on the ownership of land as a bona fide allottee, and the court’s application of the doctrine of lis pendens warranted an appeal to the Supreme Court on grounds of constitutional interpretation. 
What factors did the Supreme Court consider before granting conservatory relief pending the hearing and determination of an appeal?
Whether a notice of appeal that was filed 15 days after the decision of the Court of Appeal was rendered owing to a national holiday being gazette within the 15 days, was filed in time
","Upon perusing the applicant’s notice of motion dated May 4, 2023 and filed on May 19, 2023 pursuant to article 163(4)(a) of the Constitution 2010; sections 21(1)(a), 24 (1) of the Supreme Court Act No 7 of 2011; rules 3(5), 31 & 32 of the Supreme Court Rules, 2020 seeking the following orders:
1.
Spent;
2.
Spent;
3.
That the honourable court be pleased to issue conservatory orders staying the execution of the ruling dated April 14, 2023 in Civil Appeal No 384 of 2019, Ashmi Investment Limited v Riakina Limited and National Land Commission pending the hearing and determination of this petition of appeal;
4.
Spent;
5.
That the honourable court be pleased to issue conservatory orders staying the execution of the Judgment dated November 19, 2021 in Civil Appeal No 384 of 2019, Ashmi Investment Limited v Riakina Limited and National Land Commission, pending the hearing and determination of this petition of appeal;
6.
Spent;
7.
That this honourable court be pleased to issue a temporary injunction restraining the 1st respondent, its members, its agents, servants, employees and/or representatives from entering, taking possession of and in any other manner interfering with the suit property pending the hearing and determination of this petition of appeal;
8.
That this honourable court be pleased to grant such other appropriate relief as it may deem fit, to give effect to the orders sought herein; and
9.
That the costs of this application be provided for; and
2.
Upon perusing the grounds on the face of the application; the supporting affidavit sworn on May 4, 2023 by Abdirahman Mohamed Elmi, and written submissions dated May 4, 2023 and filed on May 19, 2023 wherein the applicant contends that it is the registered owner of LR Nos 29957 and 29955 (hereinafter the suit properties) as allocated to it having paid the allotment fees; that the Court of Appeal in its ruling dated April 14, 2023 affirmed its judgment dated 1November 9, 2021 where it upheld the High Court decision cancelling the applicant’s survey, deed plan and the resultant titles to the suit properties; that this decision was reached without any cogent proof of illegality or fraud tendered by the 1st respondent; and that it did not violate the doctrine of lis pendens as the titles issued during the pendency of the trial was a culmination of the registration process; and
3.
Upon considering the applicant’s further argument that it has met the test laid down by this court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC Application No 5 of 2014; [2014] eKLR by demonstrating that it has an arguable appeal based on the aforementioned grounds; that the appeal would be rendered nugatory if the subject matter is not preserved since the 1st respondent during the pendency of the Court of Appeal proceedings invaded the suit properties, erected a perimeter wall and installed a security person who has made it impossible for the applicant to go anywhere near the suit properties; and that public interest rests in favour of allowing the application as pertinent questions have been raised including the place of the court to infer fraud where it is not specifically pleaded and no evidence has been led to prove the same to the required standard; as well as dispossession of a legitimate allottee of property in the absence of proof of fraud and illegality; and
4.
Upon perusing the 1st respondent’s notice of preliminary objection dated May 30, 2023 and filed on June 13, 2023, opposing the application and petition of appeal on the grounds that the appeal is frivolous for this court lacks jurisdiction as moved by the appellant; and that the notice of appeal was filed/lodged out of time contrary to rule 36(1) of the Supreme Court Rules; and
5.
Upon considering the applicant’s written submissions dated May 9, 2023 in opposition to the preliminary objection wherein the applicant asserts that this court has jurisdiction because, from the onset, its claim was anchored on its right to own the suit properties as the bona fide allottee; and thus, the question before the court was whether the applicant or 1st respondent had acquired a right to the suit properties under article 40 of the Constitution. Hence, the appeal has attributes of constitutional interpretation and/or application that arise from the main suit and require it to be heard and determined by the superior courts below which this court has discretion to assess as was held by the court in Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney General & 2 others Sup Ct Petition No 45 of 2018 [2020] eKLR. Furthermore, the applicant contends that section 26 of the Land Registration Act, legislation derived from article 68 of the Constitution, calls Upon the superior court to question whether the applicant has a legitimate title of the suit properties under article 40, and whether the 1st respondent violated the same in anyway; and
6.
Additionally, the applicant argues that the notice of appeal was lodged within the prescribed timeline considering that April 21, 2023 was a holiday and is excluded under rule 36(1) of the Supreme Court Rules, section 57 of the Interpretation and General Provisions Act and as determined by this court in Bookpoint Limited v Guardian Bank Limited & another; SC Application No 4 (E006) of 2021, [2021] eKLR; and
7.
Having taken into account the entirety of the application, the preliminary objection, responses and submissions put forth, we opine as hereunder:
8.
A preliminary objection challenging our jurisdiction having been raised in response to the application and appeal, the same has to be addressed in limine. The crux of the preliminary objection is two pronged. First, that the notice of appeal was filed out of time contrary to rule 36(1) of the Supreme Court Rules, 2020 and secondly, that the appeal does not meet the threshold of article 163(4)(a) of the Constitution.
9.
On the first objection we note that under rule 36(1) of the Supreme Court Rules, a notice of appeal ought to be filed within fourteen (14) days from the date of judgment or ruling which is the subject of appeal. Rule 36(2)(b) thereof stipulates that the filing of the notice of appeal is, at the first instance, with the registrar of the court from which the appeal originates. The ruling subject of appeal in this instance was delivered on April 14, 2023. It is uncontroverted that the applicant lodged the notice of appeal to the Court of Appeal, through its online virtual platform on April 28, 2023. As indicated under section 57(b) of the Interpretation and General Provisions Act, public holidays are excluded in computing time. Since April 21, 2023 was gazetted as a public holiday vide Gazette Notice No 5045 dated April 19, 2023, we find that the applicant filed the notice of appeal within the fourteen-day window, expiring on April 29, 2023.
10.
We appreciate that in line with the Covid-19 Practice Directions on Electronic Case Management issued by the Court of Appeal and in particular Direction 8(3) thereof, filings before the Court of Appeal are entirely virtual. Thus, the date of filing effectively coincides with the date of lodging through the virtual platform. The court has previously exercised its discretion to excuse the confusion arising out of the transition between the Court of Appeal filing process and the filing before the Supreme Court in relation to the notice of appeal. In Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2022] KESC] 24 (KLR) (Civ) (19 May 2022) (ruling), we held as follows:
“We are Satisfied therefore that the electronic notice of appeal was timeously lodged in the Court of Appeal strictly in accordance with Direction 8(3) aforesaid and subsequently filed in this court within the time set, we find that it is properly on record and reject the objection by the 1st respondent, being satisfied that it was electronically served on June 17, 2021 which was the same day that the notice of appeal was filed.”
11.
This was in response to a similar objection regarding the electronic lodging of the notice of appeal before the Court of Appeal and the transmission of the hard  to this court in line with rule 12 of this court’s rules as explained in the case of Kenya Hotel Properties Limited v Attorney General & 5 others; SC Application No 2 of 2021 (E004 of 2021); [2021] eKLR; We are therefore satisfied that just like in the cited cases, the objections concerning non-compliance with rule 36(1) of this court’s rule cannot stand.
12.
On the second limb of the objection, both parties appreciate the parameters of our jurisdiction. We need not re-emphasize that jurisdiction of a court flows from either the Constitution or legislation or both. And, jurisdiction is everything. (See Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR). Only those appeals arising from cases involving interpretation or application of the Constitution can be entertained by the Supreme Court. The appeal must originate from the Court of Appeal case where issues of contestation revolved around interpretation or application of the Constitution. That the interpretation or application has formed the basis for determinations at the superior courts below and the same issue progressed through the normal appellate mechanism to reach this court.
13.
The gist of the applicant’s case from the onset before the superior courts focused on determining the ownership of the suit properties between the applicant and the 1st respondent. This is readily discerned from paragraph 13 of the plaint filed before the High Court and the prayer seeking a declaration as a bona fide owner of the suit properties. In doing so, the applicant invoked the doctrine of bona fide owner in the wake of double allotment of the suit properties. In the appeal before us, which stems from that before the Court of Appeal, the applicant raised grievances on the court’s application of the doctrine of lis pendens and the findings of fraud as against the evidence adduced at the trial including the affidavit introduced at the Court of Appeal sworn by one Zacharia Ndege.
14.
We caution, as we did in Daniel Kimani Njihia v Francis Mwangi Kimani & another Sup Ct Civil Application No 3 of 2014 [2015] eKLR, that the Supreme Court is not just another layer of appeal. Our circumscribed jurisdiction under article 163(4)(a) of the Constitution does not permit the court to adjudicate factual contestations unless they can fit the narrow prism of constitutional interpretation and application. From our careful perusal of the record, we are satisfied that the dispute as to the ownership of land as a bona fide allottee under the circumstances and the court’s application of the doctrine of lis pendens bearing in mind the appellant’s argument surrounding this court’s advisory opinion concerning the dispute between the National Land Commission and the Ministry of Lands are issues that involve the interpretation and application of article 40 of the Constitution. The issues surrounding the inference of fraud and the attendant evidence do not fall for our determination as they were fully ventilated before the superior courts below. The objection therefore partially succeeds and is to that extent only allowed.
15.
In saying so, we think it is necessary to allow the appellant to ventilate its appeal under the strict confines of article 163(4)(a) of the Constitution. The court recently entertained a similar dispute involving contested ownership of land in Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2022] KESC] 30 (KLR) (21 April 2023) (Judgment) as of right.
16.
With our finding on the preliminary objection, we now turn to consider the prayers for conservatory relief. We note that the application is uncontroverted as the respondent fully relied Upon the objection in response to the same. Nevertheless, it is not lost to us that the applicant still has to satisfy the court that it is deserving of the said orders. The court’s jurisdiction to grant interim relief is hinged on sections 21 and 24 of the Supreme Court Act. The objective of the interim relief is to protect the substratum of the appeal.
17.
As set out in Gatirau Peter Munya case, it is evident to us that the appeal satisfies the three tests of arguability, in view of the self-evident arguments raised in the appeal, the appeal would be rendered nugatory if the court does not intervene and public interest in the sense that it is important for the constitutional right to own property, the exercise of authority by public bodies resulting to double allocations of titles to land and the misapplication of the doctrine of lis pendens which is a legal argument that goes to jurisdiction.
18.
On costs, award of the same is discretionary and follows the principle set out by this court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR that costs follow the event. However, as the appeal is yet to be determined, it is only prudent that the costs abide the outcome of the appeal.
19.
Consequently, we make the following orders:
a.
The preliminary objection partly succeeds to the extent that the applicant will restrict its appeal to the following issues:
i.
Whether the applicant was a bona fide owner of the suit properties within the provisions of article 40 of the Constitution;
ii.
Whether the Court of Appeal misapplied the doctrine of lis pendens and thereby denying the applicant a right to property.
b.
Notice of motion dated May 4, 2023 and filed on May 19, 2023 be and is hereby allowed.
c.
Conservatory orders be and are hereby issued staying the execution of the ruling dated April 14, 2023 in Civil Appeal No 384 of 2019, Ashmi Investment Limited v Riakina Limited and National Land Commission pending the hearing and determination of the appeal;
d.
Conservatory orders staying the execution of the Judgment dated November 19, 2021 in Civil Appeal No 384 of 2019, Ashmi Investment Limited v Riakina Limited and National Land Commission, pending the hearing and determination of this appeal.
e.
A temporary injunction be and is hereby issued restraining the 1st respondent, its members, its agents, servants, employees and/or representatives from entering, taking possession of and in any other manner interfering with the suit property pending the hearing and determination of this appeal.
f.
The costs of the application to abide the outcome of the appeal.
",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/66/eng@2023-08-04
Petition (Application) 34 (E035) of 2021,Kampala International University v Housing Finance Company Limited (Petition (Application) 34 (E035) of 2021) [2023] KESC 67 (KLR) (Civ) (4 August 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",4 August 2023,2023.0,Nairobi,Civil,Kampala International University v Housing Finance Company Limited,[2023] KESC 67 (KLR)               ,,"Brief facts
The applicant contended that it filed its appeal without the proceedings of the Court of Appeal and the High Court as they had not been typed by then and that the record of appeal was incomplete without the proceedings of the courts. The applicant further contended that it was necessary to amend the petition of appeal so as to bring out the inadvertently omitted background information on the matters raised in the arbitration and that the information would enable the court to make a determination from a fully informed position.
The applicant argued that the amendment would give the court a wider latitude to either hear and ventilate through the issues raised before the arbitrator and give its final determination or remit the same back to the arbitrator for a fresh hearing. The applicant stated that application ought to be allowed in the spirit of the court’s judicial authority under article 159 of Constitution of Kenya, 2010 (Constitution) and that no prejudice would be suffered by the respondent should the orders sought be granted. The applicant finally contended that the amendment was necessary so as to bring out the background information and material and that the information had a direct bearing on the main issue of the appeal. 
Issues
Whether the Supreme Court had discretion to allow amendments to a petition to determine the real questions in dispute. 
Whether the Supreme Court could delve into the merits or the likelihood of success of a matter in an application to amend a petition and to file a supplementary record of appeal. 
","Upon perusing the notice of motion dated March 17, 2023 and filed on May 5, 2023 by the petitioner indicated as brought pursuant to rules 18 and 23 of the Supreme Court Rules, seeking leave to amend the petition of appeal and file a supplementary record of appeal; and
2.
Upon perusing the grounds on the face of the application and the supporting affidavit of Hassan Basajjabalaba, the Chairman of the petitioner’s Board, sworn on March 11, 2023, wherein the applicant contends that; it filed its appeal without the proceedings of the Court of Appeal and the High Court as they had not been typed by then; the record of appeal is incomplete without the proceedings of the courts; it is necessary to amend the petition of appeal so as to bring out the inadvertently omitted background information on the matters raised in the arbitration; the information will enable the court to make a determination from a fully informed position; the amendment will give this court a wider latitude to either hear and ventilate through the issues raised before the arbitrator and give its final determination or remit the same back to the arbitrator for a fresh hearing; this application ought to be allowed in the spirit of this court’s judicial authority under article 159 of Constitution; no prejudice will be suffered by the respondent should the orders sought be granted; and it is in the interest of justice for the amendment to be allowed; and
3.
Upon considering the applicant’s further argument in its submissions dated April 17, 2023 and filed on May 5, 2023 where it relies on rule 18 of the Supreme Court Rules 2012 (now rule 26 of the Supreme Court Rules 2020) and the principles set out in this court’s ruling in Attorney General v Zinj Limited Sup Ct Petition (Application) No 1 of 2020 [2021] eKLR on filing of additional evidence, and contends that the amendment is necessary so as to bring out the background information and material that will remove vagueness or doubt over the case and that the information has a direct bearing on the main issue of the appeal; and
4.
Upon perusing the respondent’s replying affidavit sworn by Regina Kajuju Anyika on May 24, 2023 in opposition to the application, and its submissions dated May 31, 2023, it contends that the petition of appeal in the present case must be limited to the question whether the Court of Appeal properly applied the principles enunciated by this court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party) Sup Ct Petition No 12 of 2016 [2019] eKLR and Synergy Industrial Credit v Cape Holdings Limited Sup Ct Petition No 2 of 2017 [2019] eKLR in dismissing the applicant’s application for leave to appeal the decision of the High Court dated October 21, 2022, and noting that the appeal herein is an interlocutory appeal, pursuant to rules 40 and 41 of the Supreme Court Rules, 2020 the typed proceedings from the High Court and the Court of Appeal are not necessary; and
5.
Upon further considering the respondent’s arguments that; based on this Court’s decision in Geo Chem Middle East v Kenya Bureau of Standards Sup Ct Petition No 47 of 2019 [2020]eKLR, this court lacks jurisdiction to grant the prayers sought in the application and to give a final determination or remit the same to the arbitrator for fresh hearing as sought in the amended petition; the factual background sought to be introduced are matters already pleaded in the various pleadings in the record of appeal; the application lacks merit, is an abuse of the court process, and is merely filed to delay and deny the respondent the opportunity to enjoy the fruits of its judgment arising from the arbitration award made on September 27, 2019; and
6.
considered the application, response and the submissions filed by the petitioner and by the respondent we therefore opine as follows:
i.
The provisions of section 21(2) of the Supreme Court Act 2011 and rule 3(5) of the Supreme Court Rules 2020 grant this court inherent power to make any ancillary or interlocutory orders as may be necessary for the ends of justice. This court therefore has discretion to allow amendments to determine the real questions in dispute and to do substantial justice. We echo our position in Stephen Maina Githiga & 5 others v Kiru Tea Factory Company Ltd Sup Ct Application No 12 of 2019 [2019] eKLR, where we held as follows:
“
(27)
... Rule 3(5) of the Supreme Court Rules gives this court inherent power to make such orders, or give such directions as may be necessary for the ends of justice. We are satisfied that the purpose of the proposed amendment is to define the real question in controversy, and that the respondents will still have an opportunity to respond to the amendment, thereby addressing any potential prejudice that they may have suffered.”
Thus, the purpose of any amendment is to define the real question in controversy and the respondent will, in any event, have an opportunity to respond to the same.
ii.
In the same vein, the court has powers to grant leave to file a supplementary record under rule 40(4) of the Supreme Court Rules, 2020 when satisfied that the amendment seeks to introduce a critical document omitted. In Surya Holdings Limited & 2 others v CFC Stanbic Limited & another Sup Ct Petition No 8 of 2019 [2020] eKLR we stated as follows:
“
In considering whether to exercise discretion and grant leave to file documents out of time, we have time and again restated that the onus is on the applicant to explain the delay and that no prejudice will be caused to the opposing party. Rule 40(4) of the Supreme Court Rules, 2020 obligates an applicant to seek leave to file a Supplementary record of appeal to include a document omitted from the record of appeal unless such a supplementary record is filed within 15 days of lodging the record of appeal.""
iii.
On the prayer to amend the petition, a perusal of the draft amended petition reveals that the applicant seeks to set out the background of what transpired before the arbitrator including an additional prayer to, ‘either quash the Arbitral Award subject to HC Misc Cause No E564 of 2019 and judgment be entered as prayed in the claim before the arbitrator, or the court invokes its powers under article 159 of the Constitution and orders the parties to hold in equal rights in respect of the property subject of charge in equal shares’. In our view, the applicant’s argument as we perceive it is that it merely intends to place the issues in disputation in perspective to facilitate the just determination of the appeal.
iv.
In our earlier ruling delivered on January 27, 2023 in this matter (Kampala International University v Housing Finance Company Limited (Petition (Application) 34 (E035) of 2022) [2023] KESC 5 (KLR) (27 January 2023) (Ruling)), the court noted some of the contentions that rendered the appeal arguable. taking into account the respondent’s perception as to the nature and extent of issues in the intended appeal, the court, like in the earlier ruling, shall not at this juncture delve into the merits or the likelihood of success. The parties will have ample time to fully ventilate their arguments in line with our jurisdiction under article 163(4)(a) of the Constitution. The respondent’s prejudice to be suffered, if any, will be discernible then. For these reasons, we are therefore inclined to allow the prayer to amend the petition of appeal as sought.
v.
On the leave to file a supplementary record of appeal containing the proceedings of the High Court and Court of Appeal, it is apparent that the same were not available at the time of filing the record of appeal. The unavailability of the proceedings of the superior courts below and the time taken to secure them is not attributed to the fault of the applicant. The respondent has not controverted this limb of argument or demonstrated any likely prejudice if this prayer is granted. This renders the prayer as one for allowing.
vi.
In the circumstances, the interest of justice is best served by allowing the amendment of the petition and for the petitioner to file the supplementary record containing the proceedings before the superior courts below for the purposes of placing before the court all matters in controversy for the court’s determination.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/67/eng@2023-08-04
Reference 1 (E001) of 2021,County Government of Nairobi v Attorney General (Reference 1 (E001) of 2021) [2023] KESC 65 (KLR) (Civ) (14 July 2023) (Advisory Opinion),Advisory opinion ,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko",14 July 2023,2023.0,Nairobi,Civil,County Government of Nairobi v Attorney General,[2023] KESC 65 (KLR) ,,"A. Introduction
1.
By a reference dated July 15, 2021, the County Government of Nairobi (the applicant herein), sought this court’s Advisory Opinion under article 163 (6) of the Constitution on the following four issues, reproduced verbatim:
1.
Whether the outstanding legal debt during the transition from the National Government to the devolved government as provided under sections 4 and 7 of the Transition to Devolved Government Act should have been absorbed by the National Government and not the County Government;
2.
Whether the transfer of functions from the County Government to the National Government vide the Deed of Transfer dated February 25, 2020 in terms of articles 187, 189 of the Constitution and sections 24, 25 and 28 of the Intergovernmental Relations Act should have also included the transfer of liabilities including the Kshs 60 billion owed in legal debt from the County Government to the National Government;
3.
Whether the county accounting officers should personally be held liable for the failure of the County governments to obey orders requiring payment of any money by way of damages or otherwise, or of any costs in legal debts; and
4.
Whether the arrest warrants issued against County Executive Officers on account of failure to pay the legal debt owed by the County Government violate their rights under articles 27, 28, 29, and 48 of the Constitution.
2.
The reference was supported by the affidavit of Lydia Kwamboka, the County Attorney of the applicant sworn on July 15, 2021.
B. Background
3.
By the operation of sections 3(d) and 7(2)(a)(e)(f) and (g) of the Transition to Devolved Government Act, all the assets and liabilities of its predecessor, the Nairobi County Council, were deemed to have been transitioned into the applicant’s assets and liabilities register. Further, pursuant to articles 187 and 189 of the Constitution as well as sections 25 and 26 of the Intergovernmental Relations Act, the applicant, through a Deed of Transfer of Functions dated February 25, 2020 (hereinafter ‘the Deed of Transfer’) unequivocally transferred the following services to the National Government through the Nairobi Metropolitan Services (hereinafter ‘NMS’): the county health services, county transport services, county planning and development services and county public works, utilities, and ancillary services, but failed to transfer corresponding liabilities.
4.
The applicant now seeks clarification of an alleged ambiguity in the legal statutes and framework, affecting the settlement of debts owed by the defunct Municipal Councils including the Nairobi City Council after the transition to devolved governments, and debts and liabilities sharing between the latter and the National Government, following the execution of the Deed of Transfer and transfer of functions aforesaid.","E. Analysis
i. Whether the application for an advisory opinion is premature
26.
The Attorney General’s preliminary objection is two-pronged. First, it was urged that the applicant’s reference was premature as the applicant had failed to seek the Attorney General’s advice, before moving the court for an advisory opinion. It was also urged that this inaction was deliberate. Consequently, the Attorney General contended that the court’s jurisdiction under article 163(6) of the Constitution should be ousted.
27.
Second, it was argued that the respondent, through the solicitor general had instructed the applicant’s advocates on record to withdraw the reference, as continuation of these proceedings lacks the applicant’s authority. These contentions were re-emphasized when this reference came up for hearing. It is imperative to note that the applicant did not controvert this challenge in its written submissions and its advocates on record failed to appear before the court when this reference came up for hearing to do the same.
28.
On our part, we have pronounced ourselves, as regards preliminary objections in the case of Independent Elections and Boundaries Commission v Jane Chepngerer and 2 others, SC Civil Application No 36 of 2014; [2015] eKLR where we stated:
“
It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law…”
29.
On the same issue, this court affirmed in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others, SC Application No 50 of 2014; [2015] eKLR that;
“… a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”
30.
Accordingly, an objection that disputes the jurisdiction of a court of law is one raising a pure point of law. We find that the respondent’s preliminary objection falls within these demarcations and warrants our determination at this stage.
31.
We now turn focus to the issue, whether the advisory opinion is premature for want of the Attorney General’s prior advice. The first point of call is rule 53
(c)
of the Supreme Court Rules, 2020 which provides that: rule 53
1.
The court may, after giving the parties an opportunity to be heard, reject a reference in whole or in part, if –
…
(c)
the matter in respect of which the reference is made can, in the opinion of the court, be resolved by the advice of the Attorney – General, and such advice has not been sought. [Emphasis added]
F. Final Orders
44.
In that context, and responding to the preliminary objection before us, our orders are as follows:
i.
The preliminary objection by the Attorney General is upheld;
ii.
The reference dated July 15, 2021 and filed on July 19, 2021 be and is hereby struck out; and
iii.
Each party shall bear its costs.
We are further guided by our decision In the Matter of the Interim Independent Electoral Commission SC Application No 2 of 2011; [2011] eKLR [Re IIEC] where the court considered the question whether seeking advice from the Attorney-General, or the requirement for seeking such advice before moving the court for an advisory opinion, would be tantamount to interference with the independence of the Interim Independent Electoral Commission. The court pronounced itself as follows:
“In the instant matter, it is our opinion that, seeking the advice of the Attorney-General, or being required to do so by a rule of procedure, does not compromise the independence of a State organ in any way, nor does it vest a veto power in that office. While the applicant after obtaining advice from the office of the Attorney-General is not necessarily bound by the same, for the purpose of this court, the fact that such advice was sought in the first place, will demonstrate the applicant’s commitment, as well as fidelity to due process”.
33.
Consequently, In the Matter of the National Gender and Equality Commission, Reference No 1 of 2013; [2014] eKLR, we directed that, even though the locus standi of the party, and the nature of the subject matter, are two paramount considerations, there are other factors which though essential, will be weighted on a case-by-case basis. The issue whether the opinion of the Attorney-General has been sought is one such factor. In that matter, we concluded that;
“
Though there is no mandatory requirement to first seek the Attorney-General’s opinion, this court has held that, as a matter of good practice, such opinion should be sought…
….
Consequently, as a matter of due process, we would restate that the applicant, same as other government institutions and agents, should adopt the practice of resorting to the office of the Attorney-General first” [Emphasis added].
34.
Similarly, the need to seek the advice of the Attorney General was reiterated In the Matter of Speaker, County Assembly of Siaya County, Reference No 4 of 2017; [2020] eKLR.
35.
Flowing from the above, we see no reason to derogate from this court’s rules and set procedure, as well as settled legal standards. We, therefore, restate that, as a matter of good practice and anchored on rule 53 aforesaid, such opinion should be sought. We further reaffirm that in line with rule 53(1)(c), we may, after allowing the parties a chance to be heard, reject a reference in whole or in part, if the matter in respect of which the reference is made, can in our opinion be resolved by the advice of the Attorney General if such advice has not been sought.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/65/eng@2023-07-14
Petition 17 (E021) of 2022,Janmohamed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another v Lagat & 4 others; Tiony & another (Intended Interested Party) (Petition 17 (E021) & 24 (E027) of 2022 (Consolidated)) [2023] KESC 64 (KLR) (14 July 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",14 July 2023,2023.0,Nairobi,Civil,"Zehrabanu Janmohamed SC (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi)
1st Appellant
Rai Plywood (K) Ltd
2nd Appellant
and
Nathaniel K Lagat
1st Respondent
Susan Cherubet Chelugui & David K. Chelugui (Suing as the Administrators of the Estate of the Late Noah Kipngeny Chelugui)
2nd Respondent
District Land Registrar Uasin Gishu
3rd Respondent
The Registrar Of Titles
4th Respondent
The National Land Commission
5th Respondent
and
Kimaiyo Tiony
Intended Interested Party
Moses Kiniiya Nene
Intended Interested Party",[2023] KESC 64 (KLR) ,,"The applicants sought leave to be admitted as interested parties in the instant petition. They sought to be allowed to be granted an opportunity to submit written and oral arguments in the petition. The applicants alleged to be holders of a power of attorney of the 1st respondent over land that was allegedly the subject of the instant case.
The respondents opposed the application on grounds that the applicants lacked locus standi to approach the court as the 1st respondent was a substantive party to the proceedings and that the land that they referenced in their application was separate and distinct form the suit property. 
Issues
Whether a holder of a power of attorney could apply to be joined as an interested party in a suit in which the principal was a substantive party to a suit.
Held
In determining applications to be joined as an interested party, the Supreme Court was guided by rule 24 of the Supreme Court Rules 2020, and the principles established in  Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others and  Francis Karioki Muruatetu & Another v Republic & 5 Others. 
The 1st respondent, the alleged grantor of the Power of Attorney to the applicants, was at all times an active party to the proceedings before the trial court and at the Court of Appeal. There was no basis upon which the applicants could be admitted as interested parties. 
The power of attorney could not be activated on behalf of the very person, who had been and remained a party to the proceedings. The applicants had not set out any personal interest or stake that was clearly identifiable and proximate, or the prejudice they were likely to suffer in case of non-joinder.
Application dismissed.","We therefore make the following orders:
a.
The notice of motion dated January 17, 2023 and lodged on January 24, 2023, is hereby dismissed;
b.
The costs of this application shall be borne by the applicants.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/64/eng@2023-07-14
Petition (Application) E004 of 2023,Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others; Law Society of Kenya (Intended Amicus Curiae) (Petition (Application) E004 of 2023 & Petition E002 of 2023 (Consolidated)) [2023] KESC 63 (KLR) (14 July 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, W Ouko",14 July 2023,2023.0,Nairobi,Civil,Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others; Law Society of Kenya,[2023] KESC 63 (KLR) ,,"The Law Society of Kenya sought to be enjoined as amicus curiae in the instant suit. The crux of the petition revolved around the jurisdiction of the Employment and Labour Relations Court (ELRC) vis-à-vis the jurisdiction of the High Court to entertain disputes that did not emanate from an employer-employee dispute. In particular, the question was whether the determination of the constitutionality of the NSSF Act, 2013 was the mandate of the High Court or the ELRC. LSK proposed an amicus brief that related to the question of the jurisdiction of the ELRC to determine the aforementioned issues.","We now determine as follows:
i.
It is common ground that the crux of the dispute in the consolidated appeal pertains to the parameters of the ELRC’s vis-à-vis the High Court’s jurisdiction as far as the determination of the constitutionality of NSSF Act, 2013 is concerned; the particular issues being; a determination of whether ELRC has jurisdiction to entertain a dispute which does not arise from an employer-employee dispute; and whether the determination of the constitutionality of the NSSF Act, 2013 was the mandate of the High Court under article 165(3)(d)(i) or the ELRC under article 162(2)(a) of the Constitution.
ii.
Having appraised the proposed amicus brief we note that the points of law set out above, which LSK intends to advance, relate to the question of the ELRC’s jurisdiction to determine the constitutionality/validity of the NSSF Act, 2013.
iii.
Nonetheless, we cannot help but note that the arguments in the proposed amicus brief have largely been addressed in one way or another by the parties to the consolidated appeal through their pleadings and/or submissions. As such, the proposed amicus brief does not introduce novel aspects of the legal issue in question. See Francis Karioki Muruatetu & Another v Republic & 5 others, SC Petition No 15 of 2015 as consolidated with Petition No 16 of 2015 [2016] eKLR. In addition, we are not convinced that the motion was brought within reasonable time. For those reasons, we find that LSK has not met the conditions which would warrant its admission as amicus curiae in the consolidated appeal.
iv.
While costs should generally follow the event, guided by this court’s decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others, SC Petition No 4 of 2012; [2013] eKLR, we find that in these circumstances, an order that each party to bear their own costs is just and will serve the ends of justice. This is because to order otherwise may have the effect of barring bona fide applications for admission of persons who would assist the court as amicus curiae. We also recognize that the applicant was motivated by public interest to advance the law save that the issues it intends to raise are well covered by the pleadings and submissions on record.
11.
Consequently and for the reasons afore-stated, we make the following orders:
i.
The notice of motion dated May 15, 2023 and lodged on May 16, 2023 by LSK is hereby dismissed.
ii.
Each party shall bear their own costs.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/63/eng@2023-07-14
Petition (Application) E006 of 2022,Gachuhi & another v Evangelical Mission for Africa & another (Petition (Application) E006 of 2022) [2023] KESC 62 (KLR) (Civ) (30 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",30 June 2023,2023.0,Nairobi,Civil,Gachuhi & another v Evangelical Mission for Africa & another,[2023] KESC 62 (KLR) ,,,"We now opine as follows:
i.
Examining the record and the Judgments of the superior courts below, it is inarguably clear that the High Court interrogated and applied the requirements for setting aside an arbitral award under Section 35 of the Arbitration Act and set aside the same on grounds that it upset Sections 35 (2) (b) (ii) of the Arbitration Act and was against public policy;
ii.
Similarly, in its Judgment, the Court of Appeal confined itself to the issue, whether the High Court erred in setting aside the arbitral award under Section 35 of the Arbitration Act. To answer this question, it interrogated the findings of the trial court within the parameters settled by the jurisprudence of this Court. It affirmed the trial court’s decision;
iii.
Consequently, we agree with the respondents that no issues of contestation revolving around the interpretation or application of the Constitution have arisen to warrant the exercise of this Court’s jurisdiction under Article 163 (4) (a) of the Constitution;
iv.
Guided by our finding in Geo Chem [supra], we find that we lack the jurisdiction to entertain the petitioners’ application for stay of execution and the petition dated March 10, 2023; and
v.
Having so found, the other issues arising from the parties' rival submission must fall by the way side.
15.
Consequently and for reasons aforesaid, we make the following Orders:
i.
The Notice of Motion dated March 30, 2023 and filed on April 4, 2023 be and is hereby allowed;
ii.
The Notice of Motion dated March 23, 2023 and filed on March 28, 2023 be and is hereby dismissed;
iii.
The Petition dated March 10, 2023 and filed on March 16, 2023 be and is hereby struck out;
iv.
The petitioners shall bear the respondents’ costs; and
We hereby direct that the sum of Kshs 6,000/-, deposited as security for costs upon lodging of this appeal, be refunded to the petitioners;
It is so Ordered.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/62/eng@2023-06-30
Petition 41 of 2018,"Muriithi (Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC (Executrix of Estate of Daniel Arap Moi) & another (Petition 41 of 2018) [2023] KESC 61 (KLR) (30 June 2023) (Judgment) (with dissent - MK Ibrahim & N Ndungu, SCJJ)",Judgement ,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",30 June 2023,2023.0,Nairobi,Constitutional,"Gitonga Mwangi Muriithi (Suing as the Legal Representative of the Estate of Mwangi Stephen Muriithi)
Petitioner
and
Zehrabanu Janmohamed SC, (Suing as the Executrix of the Estate of Hon. Daniel Toroitich Arap Moi)
1st Respondent
Raymark Limited
2nd Respondent",[2023] KESC 61 (KLR) ,,,"E. Analysis
53.
Before considering the issues as set out above, we are constrained to pronounce ourselves on the question as to whether this court has jurisdiction to entertain this appeal in the first place. This would not have been necessary, had the issue not been raised by the respondents in the course of the main hearing. It is the 1st respondent’s argument that the appeal is frivolous, vexatious and an abuse of the process of court. The appeal, argues the 1st respondent, exceeds the parameters of leave granted by this court. In support, the 2nd respondent submits that the issues raised in the appeal were never part of the pleadings at the trial stage. Furthermore, he argues, the appeal does not raise any weighty constitutional questions to warrant this court’s further intervention.

F. Final orders of the court
i.
The appeal dated November 2, 2018 is hereby dismissed;
ii.
Each party shall bear its own costs; and
iii.
We hereby direct that the sum of Kshs 6,000/-, deposited as security for costs upon lodging of this appeal, be refunded to the appellant.
It is so ordered.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/61/eng@2023-06-30
Petition 5 (E007) of 2021,Haki Na Sheria Initiative v Inspector of Police & 2 others; Kenya National Human Rights & Equality Commission (Interested Party) (Petition 5 (E007) of 2021) [2023] KESC 51 (KLR) (23 June 2023) (Judgment),Judgement ,Supreme Court,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",23 June 2023,2023.0,Nairobi,Civil,Haki Na Sheria Initiative v Inspector of Police & 2 others; Kenya National Human Rights & Equality Commission,[2023] KESC 51 (KLR) ,,"A. Introduction
1.
This appeal challenges constitutionality of the provisions of section 8 and 9 of the Public Order Act which provides for the mandate of the Cabinet Secretary of Interior and a police officer in charge of a county or division to issue curfew orders and curfew restriction orders respectively.
2.
The appellant also submits that as a result of the said curfew orders specific constitutional rights and freedoms of the citizens were infringed or violated including the right to life under article 26; the right to equality and freedom from discrimination under article 27; the right to liberty under article 29; freedom of conscience, religion, belief under article 32 and the right to movement under article 39 of the Constitution.
3.
The appellant instituted this case before the High Court Constitutional & Human Rights division challenging the directive issued by the then Cabinet Secretary for Internal Security imposing a curfew in Wajir, Garissa, Mandera and Tana River Counties from 6.30pm to 6.30 am between the months of April 2015 to June 2015. The curfew orders and restrictions were imposed following a heinous terrorist attack on April 2, 2015 at Garissa University where at least 148 innocent Kenyans were killed and numerous others injured.
4.
Both the High Court and the Court of Appeal dismissed the appellant’s case and made a finding that section 8 and 9 of the Public Order Act was not unconstitutional and that the alleged limitation of human rights and freedoms within section 8 and 9 of the Public Order Act is justifiable, reasonable and necessary under article 24 of the Constitution.
B. Background
i. Proceedings in the High Court
5.
The appellant filed a constitutional petition before the Garissa High Court petition No 6 of 2015 which challenged constitutionality of sections 8 and 9 of the Public Order Act, on which the curfew was predicated. It also contended that the continued enforcement of the curfew severally curtailed the residents’ rights of movement and worship. The effect of the curfew reduced the number of hours in the day leading to a serious negative impact on the socio-economic activities and livelihoods of the people living in these counties since economic activities in these areas are particularly active during the night due to the severe high temperatures, these activities include but not limited to retail trading, video shows, travel, and social gatherings.
6.
The appellant prayed for the High Court to grant inter alia the following orders; An order of injunction restraining the respondents, whether by themselves, agents, police, military officers, or other assigns, from continuing to enforce the orders of curfew affecting Garissa, Wajir, Mandera, and Tana River County residents and interfering with the free movement of the residents of the aforementioned counties, an order lifting the curfew and a declaration that that curfew imposed on the aforementioned counties is illegal, unconstitutional, and null and void.
7.
The appellant also prayed for a declaration that sections 8 and 9 of the Public Order Act are unconstitutional and void, that the 1st respondent acted without authority to impose the curfew on the counties, that the citizens’ right to religion especially during the month of Ramadhan be safeguarded and an order for the payment of damages to communities and residents to be assessed.
8.
The High Court identified four key issues for determination: whether the petition can be allowed even though the respondent and the interested party did not file replying affidavits; whether sections 8 and 9 of the Public Order Act are unconstitutional; whether the curfew imposed on the residents of Garissa, Wajir, Mandera, and Tana River Counties infringed on their fundamental rights and was unconstitutional, null and void, and whether the prayers sought can be granted.
9.
On March 14, 2017, the High Court (Dulu J) dismissed the petition with no order as to costs and made the following findings. On the issue of failure by respondents and the interested party to file replying affidavits to the petition, the learned judge found that the points in dispute were legal rather than factual therefore, a replying affidavit was not necessary as it is only required when controverting facts.
10.
On the question of the unconstitutionality of sections 8 and 9 of the Public Order Act, the learned judge observed that powers to declare a state of emergency are different from those of the imposition of a curfew or curfew restriction orders. The presidential powers to declare a state of emergency under article 58 of the Constitution require the national assembly, however, there was no such requirement for curfew orders and curfew restriction orders. Therefore, the powers conferred on the President to declare a state of emergency differ from the powers bestowed on the Cabinet Secretary to declare curfew orders and curfew restrictions. Ultimately, it found that sections 8 and 9 of the Public Order Act were not unconstitutional.
11.
On the violation of the fundamental rights and freedoms, the learned judge while admitting that certain fundamental rights had been limited by the imposition of the curfew due to the prevalence of insecurity, held that the curfew order was justified at the time it was imposed and not unconstitutional.","F. Determination
30.
We shall first dispense with the issue of jurisdiction. The appellant has filed this appeal as a matter of right pursuant to article 163(4)(a) of the Constitution. The guiding principles set by this court to interpret whether this court has jurisdiction to hear and determine this appeal have been set out in several cases by this court. In the case of Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another [2012] eKLR and Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2013] eKLR, this court established that an appeal must originate from a matter where the issues contested revolved around the interpretation or application of the Constitution and the same is now being contested before the Supreme Court. Where the case has had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a) of the Constitution.
31.
We have reviewed the record of appeal and heard the submissions by the parties and find that this appeal faults the challenges the Court of Appeal’s finding on whether the provisions of sections 8 and 9 of the Public Order Act are constitutional vis a vis article 58 and the rights and freedoms under articles 26,27,29,32 and 39 of the Constitution which were purportedly violated as a result of enforcement of curfew orders and restrictions in Wajir, Garissa, Mandera and Tana River Counties between April 2, 2015 and June 18, 2015. We find that this appeal is properly before us pursuant to article 163(4)(a) of the Constitution.
(i) Whether sections 8 and 9 of the public order are unconstitutional?
32.
The second issue for our determination is whether sections 8 and 9 of the Public Order Act is constitutional vis a vis article 58 of the Constitution. We shall reproduce the provisions and analyse constitutionality thereof.
“
8.
Curfew orders
(1)
The Cabinet Secretary, on the advice of the Inspector-General of the National Police Service may, if he considers it necessary in the interests of public order so to do, by order (hereinafter referred to as a curfew order) direct that, within such area and during such hours as may be specified in the curfew order, every person, or, as the case may be, every member of any class of persons specified in the curfew order, shall, except under and in accordance with the terms and specified in the curfew order, remain indoors in the premises at which he normally resides, or at such other premises as may be authorized by or under the curfew order.
(2)(a)
It shall be a condition of every permit granted under subsection (1) of this section that the holder thereof shall at all times while acting under the authority thereof during the hours of darkness carry a light visible at a distance of twenty-five feet.
(b)
Subject to paragraph (a) of this subsection, a permit under subsection (1) of this section may be granted subject to such conditions, to be specified in the permit, as the authority or person granting it may think fit.
(3)
A curfew order shall be published in such manner as the authority making it may think sufficient to bring it to the notice of all persons affected thereby, and shall come into force on such day, being the day of or a day after the making thereof, as may be specified therein, and shall remain in force for the period specified therein or until earlier rescinded by the same authority or by the Minister as hereinafter provided:
Provided that no curfew order which imposes a curfew operating during more than ten consecutive hours of daylight shall remain in force for more than three days, and no curfew order which imposes a curfew operating during any lesser number of consecutive hours of daylight shall remain in force for more than seven days.
(4)
Deleted by Act No 19 of 2014, s. 4(b).
(5)
The variation or rescission of a curfew order shall be published in like manner as that provided in subsection (3) of this section for the publication of a curfew order.
(6)
Any person who contravenes any of the provisions of a curfew order or any of the terms or conditions of a permit granted to him under subsection (1) of this section shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment.
(7)
A certificate under the hand of the authority making, varying or rescinding a curfew order, specifying the terms, and the date and manner of publication, of such order, variation or rescission, shall be prima facie evidence thereof in all legal proceedings.
(8)
Any person who, without lawful excuse, carries or has in his possession, in any area in which a curfew order is in force and during the hours during which the curfew imposed thereby is operative, any offensive weapon shall be guilty of an offence:
Provided that no person shall be convicted of an offence under this section if he proves to the satisfaction of the Court that he carried or had in his possession the offensive weapon—
i.
solely for domestic or defensive purposes within enclosed premises which he lawfully occupied or in which he was lawfully present; or
ii.
with the authority of his employer and solely for domestic or defensive purposes within enclosed premises in the lawful occupation of his employer”.
33.
Section 9 of the Public Order Act provides for curfew restriction orders as follows:
“
(1)
A police officer in charge of the police in a county or a police officer in charge of a police division may, if he considers it necessary in the interests of public order within the area of his responsibility so to do, by order (hereinafter referred to as a curfew restriction order) prohibit, during such hours as may be specified in the curfew restriction order, all persons, or, as the case may be, all members of any class of persons specified in the curfew restriction order, from entering, being or remaining, except under and in accordance with the terms and conditions of a written permit granted by an authority or person specified in the curfew restriction order, in or at any premises specified in the curfew restriction order:
Provided that no person shall, by or in pursuance of a curfew restriction order, be prohibited or prevented from entering, being or remaining in any premises at which he normally resides, or, during reasonable hours of business, work or employment, any premises at which he normally has his place of business, work or employment.
(2)
A permit under subsection (1) of this section may be granted subject to such conditions, to be specified in the permit, as the authority or person granting it may think fit.
(3)
A curfew restriction order shall be published in such manner as the authority making it may think sufficient to bring it to the notice of all persons affected thereby, and shall come into force on such day, being the day of or a day after the making thereof, as may be specified therein, and shall remain in force for such period, not exceeding twenty-eight days, as may be specified therein or until earlier rescinded by the same authority or by the Cabinet Secretary as hereinafter provided.
(4)
Every curfew restriction order shall, forthwith on its being made, be reported to the Commissioner of Police, and the Commissioner of Police may, if he thinks fit, vary or rescind the curfew restriction order.
(5)
The variation or rescission of a curfew restriction order shall be published in like manner as that provided in subsection (3) of this section for the publication of a curfew restriction order.
(6)
Any person who contravenes any of the provisions of a curfew restriction order or any of the terms or conditions of a permit granted to him under subsection (1) of this section shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment.
(7)
A certificate under the hand of the authority making, varying or rescinding a curfew restriction order, specifying the terms, and the date and manner of publication, of such order, variation or rescission, shall be prima facie evidence thereof in all legal proceedings”.
34.
Article 58 of the Constitution provides as follows on the declaration of a state of emergency:
“
1)
A state of emergency may be declared only under article 132 (4)(d) and only when—
a.
the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and
b.
the declaration is necessary to meet the circumstances for which the emergency is declared.
2)
A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of the declaration, shall be effective only—
a.
prospectively; and
b.
for not longer than fourteen days from the date of the declaration, unless the National Assembly resolves to extend the declaration.
3)
The National Assembly may extend a declaration of a state of emergency—
a.
by resolution adopted—
i.
following a public debate in the National Assembly; and
ii.
by the majorities specified in clause (4); and
b.
for not longer than two months at a time.
4)
The first extension of the declaration of a state of emergency requires a supporting vote of at least two-thirds of all the members of the National Assembly, and any subsequent extension requires a supporting vote of at least three-quarters of all the members of the National Assembly.
5)
The Supreme Court may decide on the validity of—
a.
a declaration of a state of emergency;
b.
any extension of a declaration of a state of emergency; and
c.
any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.
6)
Any legislation enacted in consequence of a declaration of a state of emergency—
a.
may limit a right or fundamental freedom in the Bill of Rights only to the extent that;
i.
the limitation is strictly required by the emergency; and
ii.
the legislation is consistent with the Republic’s obligations under international law applicable to a state of emergency; and
b.
shall not take effect until it is published in the gazette.
7)
A declaration of a state of emergency, or legislation enacted or other action taken in consequence of any declaration, may not permit or authorize the indemnification of the State, or of any person, in respect of any unlawful act or omission”.
35.
Having set out the legislative provisions on curfew orders and curfew restriction orders under contention as against constitutional provisions on state of emergency, we now turn to the analysis of constitutionality of the legislative provisions.
36.
We have previously pronounced ourselves on the test on determining constitutionality of legislative provisions. In the case of Law Society of Kenya v Attorney General & another petition No 4 of 2019[2019] eKLR this court held as follows at paragraph 36:
“
Before determining the above issues, we consider it pertinent to restate the approach that every court should take when determining the question whether any statutory provision is unconstitutional or not. It is alleged in the petition of appeal that the cited provisions of WIBA should be struck off for being in violation of the former and present constitutions. In addressing that issue, it must always be borne in mind that the legislature’s primary constitutional mandate is the making of laws. Those laws set the ultimate direction of all activities in a State and the actions of all persons. Thus, there exists principles that underline the determination of constitutional validity of a statute or its provisions because it is the function of the courts to test ordinary legislation against the governing yardstick: Constitution.”
37.
This court further enumerated on the applicable presumption and onus dischargeable as follows at paragraph 37:
“
At the forefront of these principles is a general but rebuttable presumption that a statutory provision is consistent with Constitution. The party that alleges inconsistency has the burden of proving such a contention. In construing whether statutory provisions offend Constitution, the courts must therefore subject the same to an objective inquiry as to whether they conform with Constitution.”
38.
Additionally, in the same paragraph, the Supreme Court enumerated the principle that, “the true essence of a statutory provision as well as its effect and purpose must be considered.”
39.
Reference is also made to this court’s precedent and findings made by the courts on legislative interpretation in the following respective cases; Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, and Hamdarddawa Khana v Union of India and others 1960 AIR 554 and Pepper v Hart [1992] 3 WLR.
40.
The Supreme Court of India in the case of Reserve Bank of India v Peerless General Finance & Investment Co Ltd & others [1987] 1 SCC 424 considered the intent of text and context in interpretation and held as follows.
“
Interpretation must depend on the test and the context. They are the bases of interpretation. One may well say if the test is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual.”
41.
The appellant contends that the provisions of section 8 and 9 of the Public Order Act are unconstitutional as they give sweeping powers to the Cabinet Secretary and the Police without checks and balances or parliamentary and judicial oversight contrary to the provisions of article 58 and 95 of the Constitution. It is its case that the provisions do not provide timelines on duration of curfews and further that the provisions infringe on an array of human rights. The appellant also contends that the provisions are archaic and contrasted the provisions to the colonial statutes on issuance of passes which were written permits granted by an authority under inter alia the Native Passes Regulations 1900.
42.
It is the respondents' case that the impugned provisions are not unconstitutional as they meet the objective of the Public Order Act which is to attain the legitimate purpose of ensuring safety, peace, and order at the attainment of national security in a given area of the country. Further that sections 8 and 9 of the Act presuppose a state of security, peace, and stability that is free from criminal activities and violence.
43.
The court in determining the purpose of a curfew held as follows in the case of Muslims for Human Rights (MUHURI) & 4 others v Inspector General of Police & 2 others [2014] eKLR
“
The underlying objective of a curfew is to enable security personnel to move into an area affected by criminal acts leading to public disorder, or such other acts that affect normal operations of the residents of the affected area…”
44.
In analyzing constitutionality of sections 8 and 9 of the Public Order Act, we shall begin by considering the purpose of the Act. The long title of the Act provides that the objective of the Statute is to make provision for the maintenance of public order and for purposes connected therewith. With reference to curfew orders, the Cabinet Secretary responsible for Internal Security is mandated to issue the order which is premised on advice of the Inspector General of Police. The order is issued in the interests of maintaining public order.
45.
In the circumstances of this case, the curfew orders in dispute were issued following a heinous terrorist attack in Garissa and it was necessary in the circumstances to forestall any other attacks as well as maintain public order while investigations relating to the attack were conducted whilst maintaining law and order in the affected county as well as the neighboring counties. Therefore, the 2nd respondent legitimately issued the curfew order which was also a precautionary measure to avert any further potential risk upon the lives of the residents in the four (4) counties.
46.
In the case of Republic v Ministry & 3 others Ex-parte Kennedy Amdany Langat & 27 others, Judicial Review Case No 2 of 2018 and JR 709 of 201 (Consolidated) [2018] eKLR held as follows on the application of the precautionary principle.
“
126.
Therefore, applying the precautionary principle, which principle is designed to prevent potential risks, I find and hold that it is the duty of the state to take protective measures without having to wait until the reality and seriousness of those risks are fully demonstrated or manifested. This approach takes into account the actual risk to public health, especially where there is uncertainty as to the existence or extent of risks to the health of consumers. The state may take protective measures without having to wait until the reality and the seriousness of those risks are apparent.”
47.
Further, there was need to maintain national security considering that the nature of terrorism translates across the victim country’s borders. Article 238 (2) of the Constitution provides that the principles of national security are that it is subject to the authority of the Constitution and Parliament, it shall be pursued in compliance with the law and utmost respect for the rule of law, democracy and human rights and fundamental freedoms and that national security organs shall respect the diverse culture of the communities within Kenya.
48.
Sections 8 and 9 of the Public Order Act provide for the duration of hours to remain indoors and which applies to every member of any class except with a written permit. Additionally, curfew restriction orders are issued by the police in charge of a county or division restricting persons from entering, being or remaining in any premises. The Black’s Law Dictionary defines a curfew as ‘a regulation that forbids people from being outdoors or in vehicles during certain hours.’ Although the statutory provisions do not state the hours for the curfew operation, the proviso in section 8(3) caters to the limitation of hours to a curfew as it prohibits the operation of a curfew order for more than ten (10) hours consecutive hours of daylight for three (3) consecutive days or for less consecutive hours for more than seven (7) days. Further, a curfew restriction order should not exceed twenty-eight (28) days. We therefore find that the law does provide for the operation hours of a curfew which is not excessive but rational to meet the objective of the issuance of the orders.
49.
On publication of the orders, sections 8 and 9 of the Public Order Act provides that the authority making the order shall in a manner it may think sufficient notify all persons of the day the curfew shall come into force and its duration. We, therefore, find that although the proviso does not state how the publication should be issued, the 2nd respondent has the onus to ensure that the publication is widespread and that all affected persons are informed on the issuance of the curfew.
50.
The appellant contends that the provisions of sections 8 and 9 of the Public Order Act should be considered vis a vis article 58 of the Constitution on a declaration of a state of emergency. A reading of article 58 of the Constitution provides that a state of emergency is declared in the limited circumstances where the State is threatened by war, invasion, general insurrection, disorder, natural disaster, or other public emergency. The declaration is for an initial period of fourteen (14) days and any subsequent extension is subject to the approval by National Assembly and its validity or legislation enacted pursuant to the declaration can be challenged in the Supreme Court.
51.
Constitution anticipates that a declaration of a state of emergency is likely to limit the enjoyment of rights and freedoms and provides that the limitation should strictly be required by the emergency and be consistent with the Republic’s obligation under international law applicable to a state of emergency.
52.
Therefore, in contrast to the legislative provisions on curfew orders and curfew restriction orders, it is apparent that a declaration of a state of emergency affects the entire State. Consequently, the declaration must be subjected to oversight by Parliament and any legal challenge arising thereof be resolved by the courts and in this instance, the jurisdiction is limited to the Supreme Court. On the other hand, curfew orders and curfew restriction orders are limited to a particular area and therefore will not require Parliamentary approval. However, any legal challenge arising from the declaration of a curfew can be adjudicated upon in the courts. The duration of a curfew restriction order shall not exceed a period of twenty-eight (28) days which we opine is a reasonable period upon recommendation by the authority making it.
53.
Consequently, gleaning on the considerations above we find that the appellant’s arguments fail and hold that the provisions of sections 8 and 9 of the Public Order Act attain constitutional threshold as well as meet the intent and purpose of the Act.
(ii) Whether the imposition of the curfew orders violated the rights enshrined under articles 26, 27, 29, and 39 of the Constitution and whether the limitation was justifiable?
54.
The appellant contends that the curtailing of movement of people had the effect of depriving people of their livelihood contrary to article 26 of the Constitution on the right to life, and that the voluntary limitation violated the right to liberty under article 29 of the Constitution, that sections 8 and 9 of the Public Order Act provides that the curfew can be imposed on members of a specific class which purportedly causes segregation thereby violating the right to equality and freedom from discrimination contrary to article 27 of the Constitution; that persons in the areas that the impugned curfew orders were declared are majority Muslim faithful who could not conduct night prayers during the holy month of Ramadhan thereby curtailing the freedom of religion contrary to article 32 of the Constitution, and that the movement of persons where the curfew and restriction orders were imposed was in contravention of the right of movement under article 39 of the Constitution.
55.
The respondents in opposition urged that there was no infringement of rights but the orders merely limited the enjoyment of certain rights. It is their case that the right of movement was limited to ensure safety and security and maintain public order as many lives had been lost during the terrorist attack. Additionally, that the orders applied to all residents and did not discriminate against the Muslim residents right to freedom of religion.
56.
We now turn to the principles applicable. With reference to international law, some human rights treaties include special provisions allowing for derogations from particular rights in times of war or other emergencies threatening the life of the nation.
57.
Article 4 of the International Covenant on Civil and Political Rights specifies that:
“
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the states parties to the present covenant may take measures derogating from their obligations under the present covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”.
58.
Other treaties containing a derogation clause include article 15 of the European Convention on Human Rights, article 4 of the International Covenant on Civil and Political Rights, article 27 of the American Convention on Human Rights and part v of the European Social Charter. These provisions generally require states to officially notify the respective treaty regime and indicate the reasons for their derogation as well as the duration.
59.
The derogation clauses are included because, during exceptional times, it can be crucial to curtail rights in order to preserve their long-term existence. This is important because human rights themselves come under threat in situations where there is no public order. In addition, the measures must be of an exceptional and temporary nature and only in a situation that amounts to a public emergency threatening the life of a nation.
60.
In this matter, it is imperative to note that the curfew orders and restriction orders were issued as a result of an unfortunate terrorist attack. Terrorism is classified as an international threat and its suppression involves a combined multi-national and multi-agency approach. Internationally, Kenya is core in the fight against terrorism having been a victim of the heinous attacks on occasions we do not wish to recollect.
61.
The Siracusa Principles drafted in 1958 provide for the limitation and derogation principles in the International Covenant on Civil and Political Rights - ICCPR. The principles define which public emergencies fall under article 4 of the ICCPR and provide for example, that public health may be invoked to trigger emergency provisions for the purpose of allowing ‘a State to take measures dealing with a serious threat to the health of the population or individual members of the population.’ These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.
62.
The Siracusa Principles specifically state that restrictions should, at a minimum, be:
i.
“provided for and carried out in accordance with the law;
ii.
directed toward a legitimate objective of general interest;
iii.
strictly necessary in a democratic society to achieve the objective;
iv.
the least intrusive and restrictive available to reach the objective;
v.
based on scientific evidence and neither arbitrary nor discriminatory in application; and
vi)
of limited duration, respectful of human dignity, and subject to review.”
63.
In relation to the ICCPR, the Siracusa Principles specify that limitation clauses based on the covenant provisions can only be invoked if they are necessary, based on one of the grounds justifying limitations recognized by the covenant, responding to a pressing social need, pursuing a legitimate aim, are necessary in a democratic society, and proportional to the nature of the threat.
64.
During the Covid 19 pandemic the Human Rights Committee in its ‘statement on derogations from the covenant in connection with the Covid-19 pandemic’, specifies that the pandemic has put an onus on member states to take effective measures to protect the right to life and health of all individuals within their territory and all those subject to their jurisdiction, and that such measures may result in restrictions on the enjoyment of individual rights guaranteed by the covenant
65.
Article 24 of the Constitution provides as follows on the limitation of rights and fundamental freedoms; that
“
A right or fundamental freedom in the bill of rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
a.
the nature of the right or fundamental freedom;
b.
the importance of the purpose of the limitation;
c.
the nature and extent of the limitation;
d.
the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
e.
the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose”.
66.
This court in the case of Karen Njeri Kandie v Alassane Ba & another SC petition No 2 of 2015 [2017] eKLR held at paragraph 78 that:
“
Before applying the ‘reasonable and justifiable’ test, therefore, a court must first determine whether a right has been limited under a particular law . . .it is important to consider the factors set out in Constitution that will assist us to answer this question including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation and the fact that the need for enjoyment of the right one individual does not prejudice the rights of others, as well the consideration of the relationship between the limitation and its purpose, and whether there is a less restrictive means to achieve that purpose’’
67.
Chaskalson P, of Constitutional Court of South Africa held as follows on the limitation test in the case of S v Makwanyane and another [1995] ZACC 3 at paragraph 104:
“
The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. This is implicit in the provisions of s 33(1). The fact that different rights have different implications for democracy and, in the case of our Constitution, for ‘an open and democratic society based on freedom and equality’, means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case-by- case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests. In the balancing process the relevant considerations will include the nature of the right that is limited and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy and, particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question.’’
68.
Turning to the contention by the appellant, on the alleged infringement on the right of movement, we opine that the very nature of curfew orders is to limit movement of people so as to maintain security, law, and order. The operating hours of the curfew were between 6.30 pm and 6.00 am. These hours are reasonable and it was justifiable for this right to be limited for the duration of the curfew. On the alleged infringement of the right of life whose enjoyment the appellant urged infringed on the rights of the good people of the Wajir, Mandera, Garissa and Tana River counties to livelihood as the curfew orders restricted persons from being in their business premises, we find as follows. In the circumstances, the need to preserve the right to life, after over a hundred lives were lost in the terrorist attack, outweighed the limitation on the restriction of business trading hours. In any event, during the curfew period, the residents were notified of the curfew and were therefore obliged to adjust their business trading hours.
69.
On the alleged discrimination, segregation and infringement of the freedom of religion, the appellant urged that sections 8 and 9 of the Public Order Act speaks to the issuance of curfew orders against a class of persons. A reading of the provision shows that the curfew orders apply to “every member of any class of persons specified in the curfew order” and that the exception is only granted to persons who have a written permit from the authority. In this instance, the curfew order applied to all the residents of the four counties and did not segregate any class of persons as alleged. It was unfortunate that the curfew run during the month of Ramadhan thereby restricting the Muslims from attending night prayers. However, the limitation of the freedom of religion was justifiable in the circumstances.
70.
Consequently, relying on the provisions of Constitution, International Law, and the principles on the reasonable and justifiable test and taking into account all factors attendant to this cause, we find that the limitations were justifiable and reasonable in the circumstances and that there was no violation of the enjoyment of human rights as alleged by the appellant.
G. Orders
i.
The appeal is hereby dismissed
ii.
Each party shall bear its own costs.
iii.
We hereby direct that the sum of Kshs 7,000/-, deposited as security for costs upon lodging of this appeal, be refunded to the appellants.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/51/eng@2023-06-23
Application E013 of 2023,Miruka v Kenya Revenue Authority & 5 others (Application E013 of 2023) [2023] KESC 50 (KLR) (23 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, SC Wanjala, I Lenaola, W Ouko",23 June 2023,2023.0,Nairobi,Civil ,Miruka v Kenya Revenue Authority & 5 others,[2023] KESC 50 (KLR) ,,"Brief facts
The applicant filed the instant appeal seeking to be granted whistle blower award and protection. The applicant contended that he had given his ideas, information and intelligence to the Kenya Revenue Authority to map out and register all landlords and estate property owners and agents to curb tax evaders. He sought compensation for his efforts. His petition before the High Court was dismissed and his first appeal was yet to be determined by the Court of Appeal. Aggrieved by the alleged delay the applicant filed the instant appeal before the Supreme Court. ","7.
We have considered the application, affidavits, submissions filed and now opine as follows:
i.
This application has not been filed pursuant to the provisions of article 163(4)(a) or (b) of the Constitution, as read together with section 15, 15A and 15B of the Supreme Court Act which grants this court jurisdiction to hear appeals from the Court of Appeal on matters relating to the interpretation and application of the Constitution and those involving matters certified as involving general public importance. The application is also not seeking certification or review under article 163(4)(b) of the Constitution.
ii.
In any event, in Sum Model Industries Ltd v Industrial and Commercial Development Corporation, Sup Ct civil application No 1 of 2011 [2011] eKLR we held that a certification for leave to appeal to the Supreme Court on a matter of general public importance ought to be first filed at the Court of Appeal and a party with the Court of Appeal’s decision in this regard, is at liberty to seek a review of that decision from the Supreme Court. This is the import of rule 33 that the applicant has invoked.
iii.
There is neither an appeal nor an intended appeal preferred to this court from the Court of Appeal. The applicant has not made reference to any decision by the Court of Appeal in the present case. The genesis of the matter is High Court Petition No 538 of 2016 filed by the applicant. The same was dismissed and the applicant appealed to the Court of Appeal in Nairobi Civil Appeal No E005 of 2020, which appeal is yet to be heard and determined on its merits.
iv.
The applicant has instead invoked the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, and has sought orders that are not in the nature envisaged under the Constitution or the Supreme Court Act for which this court has original jurisdiction.
v.
Rules 7 and 33 of the Supreme Court Rules quoted by the applicant are not reflected in the prayers sought by the applicant or the grounds in support of the application. Rule 7 relates to the sittings of this court while rule 33 relates to certification of a matter as involving general public importance, which, as already stated, the applicant has not complied with.
vi.
As we held in Hermanus Phillipus Steyn v Giovanni Gnecchi- Ruscone Sup Ct Application No 4 of 2013 [2013] eKLR, it is trite law that a court of law has to be moved under the correct provisions of the law, which the applicant has failed to do.
8.
Consequently, for reasons aforesaid, we make the following orders:
i.
The notice of motion dated March 17, 2023 be and is hereby dismissed;
ii.
Each party to bear own costs.
Orders accordingly.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/50/eng@2023-06-23
Application E009 of 2023,Munguti & 6 others v Zibu & 13 others (Application E009 of 2023) [2023] KESC 49 (KLR) (23 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",23 June 2023,2023.0,Nairobi,Civil,Munguti & 6 others v Zibu & 13 others,[2023] KESC 49 (KLR) ,,"Brief facts
At the heart of the dispute between the parties was the question of ownership of certain assets in the form of immovable properties, money in the bank, and control and management of the 7th applicant. The assets were allegedly acquired using donor funds from the 2nd respondent and other donors; the 2nd respondent remitted funds to the 1st applicant to register the 7th applicant as well as to purchase land with a view to setting up a children’s home and drug addiction rescue and rehabilitation centre. The first two plots were registered in the name of the 7th applicant while the latter property in the name of the 1st applicant. 
The instant application sought among others the review and setting aside of the Court of Appeal decision declining leave to appeal to the instant court; the grant of leave of the court to file an appeal against the judgment of the Court of Appeal in Civil Appeal No 260 of 2018, Henry Muli & others v Cyrus Robert Sala Zibu & others; and the certification of their appeal as raising matters of general public importance. 
The applicants submitted that the Court of Appeal did not analyse each of the framed issues and consider the arguments advanced for certification, to the effect that the instant court needed to clarify the law. It was the applicants’ argument that the position relating to remedies available upon the finding of the existence of a trust was unsettled. ","We Now Therefore Opine as Follows:
5.
Restating the principles governing applications for certification as enunciated by the court in Hermanus Phillipus Steyn; that the applicant must satisfy the court that the issue to be canvassed on appeal before the court is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest; where a point of law is raised, that such a point is a substantial one the determination of which will have a significant bearing on the public interest; the question or questions of law must have arisen in the courts below and must have been the subject of judicial determination; that where the certification is occasioned by a state of uncertainty in the law arising from contradictory precedents, the Supreme Court may either resolve the uncertainty or refer the matter to the Court of Appeal with appropriate directions; that mere apprehension of miscarriage of justice is not a proper basis for granting certification and the matter must still fall under article 163(4)(b) of the Constitution; that the applicant must identify and concisely set out the specific elements of general public importance which he or she attributes to the matter for certification; and that determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court; and
6.
Upon applying these strictures to the rival Submissions; on the one hand, that the appeal raises matters of general public importance and that the Court of Appeal did not consider the arguments raised by the applicants with respect to resulting trusts, and on the other hand that the issues raised by the applicants as forming matters of general public importance do not meet the threshold established in the Hermanus Phillipus Steyn case because the appeal relates to private interests over land; the single issue for consideration and determination is whether the applicants have made a case to the satisfaction of the court to warrant us to review the decision of the Court of Appeal denying the applicants the certificate to appeal to this court; and
7.
Upon examining the record, it is inarguably clear that at the heart of the dispute between the parties is the question of ownership of certain assets in the form of immovable properties (plot numbers 3762, 3763, and 3792), money in the bank, and control and management of the 7th applicant. The assets were allegedly acquired using donor funds from the 2nd respondent and other donors; the 2nd respondent remitted funds to the 1st applicant to register the 7th applicant as well as to purchase land with a view to setting up a children’s home and drug addiction rescue and rehabilitation centre; that the first two plots were registered in the name of the 7th applicant while the latter property in the name of the 1st applicant; and
8.
Upon determination of these issues, the Environment and Land Court held that the relationship between the 1st applicant and the 2nd respondent resulted in the creation of an implied trust; that the 1st-6th applicants, who are the officials of the 7th applicant, in the circumstances were trustees of the 2nd respondent and his donor friends in respect to the subject plot, funds in the bank, moveable and immoveable assets registered in the name of the 1st applicant, his agents, spouse, servants and or appointees; that the implied trust between the 2nd respondent and the 1st applicant graduated and became a public trust in which the respondents and the people of Makueni County were beneficiaries of; a mandatory injunction compelling the 1st applicant to register Plot No 3792 in the name of the 7th applicant; and
9.
On Appeal, the Court of Appeal isolated four issues to consider; whether the 2nd respondent demonstrated that the funds sent to the 1st applicant were sourced from the former and his friends from Germany; whether the 7th applicant received funds from other donors not connected to the 2nd respondent; whether a resulting trust was created in favour of the 2nd respondent, over all funds, movable and immovable assets respectively registered in the applicants’ and the 1st applicant’s names, as well in the names of 1st applicant’s agents, spouse, servants or appointees and; whether the orders made were within the jurisdiction of the Environment and Land Court; and
10.
Upon considering these issues, the appellate court found, just like the trial court, that the 1st applicant bought the three plots in question with funds remitted to him by the 2nd respondent and other donors connected to the 2nd respondent; that the 1st applicant failed to present proof that he had purchased any of the plots with funds from any other source; and that in registering one of the plots in his name automatically created a resulting or implied trust in favour of the 2nd respondent from whom the funds in the form of donations for the purchase of the plots originated; and
11.
Upon affirming further the trial court’s conclusions and bearing in mind that the declaratory orders issued by that court concerned the issue of trust over the subject plot and related assets, the appellate court was satisfied that the Environment and Land Court had the jurisdiction under article 162(2) of the Constitution to entertain the dispute and determine it; and
12.
Considering the principles enunciated in Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & 5 others; CA No 51 of 2014; [2015] eKLR that a resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest upon the transferee; that a resulting trust will automatically arise in favour of the person who advances the purchase money; and whether or not the property is registered in his name or that of another, is immaterial; it is our view that the issues, as determined by the superior courts below, are settled; and
13.
Further Satisfied that the courts below, besides the Court of Appeal’s decision in Twalib Hatayan & another v Said Saggar (supra) have, in the following cases, in a long list of others, firmly and consistently established the above principles of a resulting trust; Peter Ndungu Njenga v Sophia Watiri Ndungu; CA No 2 of 2000; [2000] eKLR and Juletabi African Adventure Limited & another v Christopher Michael Lockley; CA No 75 of 2016; [2017] eKLR and N W K v J K M & Another; ELC No 422 of 2011; [2013] eKLR; and
14.
Distinguishing the instant case from this court’s decision in Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others; SC Application No 3 (E008) of 2022; [2022] eKLR, the issue raised by applicants in the latter was whether it was open to the court to imply and import the doctrine of trust into land sale transactions and into shareholding of a company as to disentitle the registered holder of land or shares, respectively, obtained for valuable consideration without offending the constitutional right to property under article 40 of the Constitution and other statutory provisions. On the other hand, in the former, the 1st applicant is challenging the right to property with respect to a resulting trust having failed to present proof that he had purchased any of the plots with funds other than those from the 2nd respondent and his donor friends. Secondly, the remedy available as a result of an implied trust was never an issue before the superior courts below. A declaration of the existence of a resulting trust is itself a remedy in an action like this one; and
15.
Therefore persuaded that no instance of state of uncertainty in the law arising from contradictory precedents on the issues raised have been pointed out to us; that the questions presented in the present application do not transcend the circumstances of this particular case; and that the issues in dispute arise from a private claim between the parties that resulted in a trust. Likewise, in the specific circumstances of this case, we do not see any significant question of law that requires further input from this court. All the applicants are asking us to do, is to grant them another opportunity to have a ""third"" bite at the cherry by revisiting factual issues that have concurrently been resolved by the two courts below; and
16.
And bearing in mind that the two courts below us reached the conclusion that, in view of the relationship between the parties herein, an implied trust resulted; that decision being founded on pure evidence which pointed to the fact that the 1st appellant was attempting to reap where he did not sow by insisting “to derive personal benefits from projects that were intended to benefit the less fortunate in the society”. Being conclusions based on facts, we are precluded from attempting to reevaluate them; and
17.
In the circumstances, we see no justification to disagree with the determination of the Court of Appeal that the application has not passed the threshold for the grant of leave to appeal to this court pursuant to article 163(4)(b); and
18.
Therefore, we dismiss this application and make the following orders:
a.
The application dated February 28, 2023 and filed on March 31, 2023 is hereby dismissed.
b.
The decision of the Court of Appeal delivered on February 3, 2023, declining leave to appeal to this court is hereby affirmed.
c.
The costs of this application shall be borne by the applicants.
19
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/49/eng@2023-06-23
Petition 15 (E022) of 2021,Muthuuri & 4 others v Attorney General & 2 others (Petition 15 (E022) of 2021) [2023] KESC 52 (KLR) (23 June 2023) (Judgment),Judgement ,Supreme Court,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",23 June 2023,2023.0,Nairobi,Civil,Muthuuri & 4 others v Attorney General & 2 others,[2023] KESC 52 (KLR) ,,"A. Introduction
1.
The genesis of this dispute can be traced back to a circular issued on January 1, 1969 where the then Police Commissioner granted graduate police officers in the rank of constable a salary higher than their counterparts who were not graduates. Over time, this practice developed into a policy within the police force (as it was then known) as evinced by a subsequent letter from the Permanent Secretary in charge of personnel management dated July 26, 1995. In that letter, the Permanent Secretary directed that graduate police constables be “differentiated” and designated as University Graduate Constables and placed in job group J.
2.
It is apparent from the pleadings before us, that the program was intended to encourage graduates with degrees in the relevant fields to apply for recruitment in the lower echelons of the police force which guaranteed them a higher salary than those in the same cadre but without a degree. It appears to us that the programme was designed to entrench professionalism in the police force.
3.
It should be apparent that the two documents, the 1969 circular and the letter of 1995, predate the current Constitution which was promulgated in 2010. Article 244 of which defines the functions and objects of the National Police Service (the force has come to be known). The article enjoins the service “to strive for the highest standards of professionalism and, to train staff to the highest possible standards of competence and integrity” so as to respect human rights and fundamental freedoms and dignity.
4.
The Constitution also establishes the National Police Service Commission (named in the proceedings as the 2nd respondent) and the office of the Inspector- General (the 3rd respondent). The National Police Service Commission (NPSC) under article 246(3)(a) is the body mandated to “recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service”.
5.
Pursuant to, the National Police Service Act was enacted in 2011 to make further provisions in respect of the National Police Service. By section 28 thereof, the 2nd respondent is empowered to make regulations generally for the better carrying into effect of any provisions of the Act, and in particular to provide for: “(a) appointments, confirmation of appointments, promotions and termination of appointments.”
6.
Based on this, the 2nd respondent has made the National Police Service Commission (Recruitment and Appointment) Regulations, 2015. In November 2016, it also promulgated the Career Progression Guidelines for the National Police Service Uniformed Personnel. These two instruments, in addition t and the National Police Service Act, are critical in the determination of this petition, bearing in mind also that the Constitution has also created the Salaries and Remuneration Commission “to set and regularly review the remuneration and benefits” of all State officers: and to advise the national and county governments on the remuneration and benefits of all other public officers.","E. Analysis and Determination
47.
Before we turn to consider each of these issues, we must dispose of the two preliminary points raised by the respondents in their submissions. First, they have argued that the ELRC lacked jurisdiction in the first place to entertain the petition before it because it did not raise any constitutional issues and secondly, that the 5th appellant’s name be struck out from these proceedings for being a busybody. On the latter question, it is apparent from the record that the 5th appellant has all along, from the ELRC through to this court been a party, though it is common factor that he is not a police officer. In terms of rule 36 of the Supreme Court Rules, we conclude that the 5th appellant has the locus standi to be in this appeal.
48.
The short answer to the first question regarding the jurisdiction of the ELRC to entertain the dispute is that, apart from the fact that the respondents have not cross-appealed this issue, we note that this question is being introduced for the first time before us. It was neither raised in the ELRC nor determined by the Court of Appeal. The general rule is that parties are bound by their pleadings. However, a court may make a determination on an unpleaded issue where in the course of the hearing, parties have canvassed the issue and left it to the court to determine. See Odd Jobs v Mubia [1970] EA 476. This was not the case here. We cannot, in those circumstances, consider or determine the question in vacuo without the benefit of the opinions of the learned judges of the two superior courts below.
Both objections must therefore fail.
i. Jurisdiction under article 163(4)(a)
49.
Given this court’s special and circumscribed jurisdiction, before considering the merits of arguments in any appeal before it, as a matter of practice, it first ascertains if it has properly been moved. As Nyarangi, JA said in his long- established and classic statement in the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, jurisdiction is everything. If we find, for instance, that we do not have jurisdiction, we must down our tools at that point, save in exceptional circumstances. In this appeal, the respondents have contended that this court lacks jurisdiction to entertain the petition since the appellants’ contracts of employment do not have statutory underpinnings as to render a breach thereof actionable by way of constitutional petition; and that the appellant’s grievance before the ELRC did not raise any constitutional issues.
50.
It is settled that appeals from the Court of Appeal will lie to this court under article 163(4) of the Constitution, either on matters of constitutional interpretation and application, or upon certification, by either the Court of Appeal or this court, on matters of general public importance.
51.
It is apparent to us from the record of appeal, that all through from the chain of courts starting with ELRC, to the Court of Appeal through to this court, the issue has remained the interpretation and application of articles 27, 41 and 47 of the Constitution. Our simple answer to this question, is that the court is clothed with the requisite jurisdiction to determine the instant appeal.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/52/eng@2023-06-23
Petition (Application) 12 (E014) of 2022,Barclays Bank of Kenya Limited (Now Absa Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayer’s Office); Kenya Bankers Association & another (Interested Parties) (Petition (Application) 12 (E014) of 2022) [2023] KESC 44 (KLR) (Civ) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, SC Wanjala, N Ndungu, I Lenaola, W Ouko",8 June 2023,2023.0,Nairobi,Civil,Barclays Bank of Kenya Limited,[2023] KESC 44 (KLR) ,,"Brief facts
The application sought to; strike out the 2nd interested party’s replying affidavit sworn by Shafi Shaikh on October 19, 2022 and filed on October 21, 2022; to expunge from the record the additional new evidence therein; and costs of the application. The applicant contended that; the 2nd interested party’s impugned replying affidavit was incurably defective for reasons that it adduced additional evidence without leave of court; that the impugned affidavit raised new grounds of appeal and pleaded new facts, substantially changing the primary parties’ case; and that such conduct amounted to disregard of the court’s procedural laws and was an outright abuse of the court’s process. 
The 2nd interested party moved the court by way of a motion dated July 5, 2022 and filed on July 8, 2022 under the provisions of rules 31(1), (2),(4),(5) and 24 of the Supreme Court Rules, 2020, seeking; leave to be admitted as an interested party; an order directing the Deputy Registrar of the court to supply the applicant with pleadings filed by the parties in the appeal; leave to submit affidavit evidence and written submissions in support of the appeal; any other order the court deemed fit to grant; and costs of the application. The court allowed the application and admitted the 2nd interested party and directed it to file its affidavit in response to the petition within 14 days and any other party to file a rejoinder, if need be, within 14 days of service. ","We now opine as follows: -
In agreement with the applicant, we find that the contents of the 2nd interested party’s replying affidavit constitute new and additional evidence.
Pursuant to the provisions of rule 26 of this Court’s Rules and the principles established in the Mohamed Abdi case (supra), such evidence can only be adduced following the grant of leave by this court.
(i)
The application dated July 5, 2022 and filed on July 8, 2022, upon which it is urged such leave was sought and granted, was brought pursuant to rules 31(1),(2),(4),(5) and 24 of the Supreme Court Rules, 2020 which set out the procedure for interlocutory applications and joinder of an interested party. Consequently, by its ruling delivered on October 7, 2022, this court limited itself to the issue of joinder only; and
(ii)
As a result, the new additional evidence adduced in the 2nd interested party’s replying affidavit, excluding the copy of the Judgment of the Court of Appeal at pages 39-47, is irregular and inadmissible. Regarding the issue as to whether the 2nd interested party’s affidavit introduces new grounds of appeal, we hold that this is a substantive question that will be properly determined in the main appeal.
[11]
Consequently, for reasons aforesaid, we make the following orders:
(i)
The notice of motion application dated November 25, 2022 and filed on December 2, 2022, be and is hereby partially allowed;
ii.
The offending annexures of the 2nd interested party’s replying affidavit sworn by Shafi Shaikh on October 19, 2022 and filed on 21st October 2022, collectively marked as “SS-3”, be and are hereby expunged from the record; and
iii.
Costs of the application shall abide the outcome of the appeal.
It is so ordered.",Allowed in part ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/44/eng@2023-06-16
Petition 6 (E007) of 2022,"Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment)",Judgement ,Supreme Court,Supreme Court,"MK Koome, SC Wanjala, N Ndungu, I Lenaola, W Ouko",16 June 2023,2023.0,Nairobi,Civil,"Dande & 3 others v Inspector General, National Police Service & 5 others",[2023] KESC 40 (KLR) ,,"A. Introduction
1.
The appellants filed three petitions of appeal before this court dated March 24, 2022, March 9, 2022 and April 12, 2022 pursuant to the provisions of article 163(4)(a) of the Constitution, section 15(2) of the Supreme Court Act No 7 of 2011 and rules 3(5), 31 & 32 of the Supreme Court Rules, 2020. The appeals arise out of the Judgments of the Court of Appeal at Nairobi (Makhandia, Ngugi & Nyamweya JJA) in Civil Appeal Nos 246 of 2016, 378 of 2018, and 147 of 2019 delivered on February 18, 2022, February 4, 2022, and March 4, 2022, respectively.
B. Background
2.
The 1st - 3rd appellants were senior employees of British American Asset Managers Limited (BAAM), a subsidiary of British American Asset Managers Company (K) Ltd (Britam), responsible for Unit Trusts, Discretionary Portfolios, Cash Management Solutions, and Alternative Investments. At all material times, the 1st appellant was the Chief Executive Officer, the 2nd appellant was the Senior Portfolio Manager and the 3rd appellant was the Assistant Company Secretary.
3.
Sometime in 2013 and during the course of the appellants’ employment, BAAM entered into a joint-venture project with Acorn Group Limited (Acorn) for the development of real estate and other business ventures, within Nairobi County and elsewhere. Acorn was to be responsible for the real estate development activities while BAAM was to be responsible for real estate finance and exit activities. It was also a term in the agreement that BAAM would acquire a 25% stake in Acorn with two seats on the Board and committee membership for oversight purposes. Thus, Acorn and BAAM became the special purpose vehicles for the sole purpose of executing specific projects.
4.
Following the joint-venture agreement, BAAM successfully carried out several Investments and even launched the BAAM Cash Management System. However, when it attempted to launch the real estate business, the same was allegedly not received well by Dr Wairegi, the then Managing Director of Britam, who thought that the real estate should have been launched by Britam and not BAAM. In several instances therefore, Britam communicated its misgivings about BAAM’s cooperation with Acorn alleging among other things that, Acorn was not an expert in real estate.
5.
Soon thereafter, a dispute arose between Britam and the appellants. The main issue in contention was whether the 1st - 3rd appellants, as managers of BAAM, could commence any real estate project and sign agreements directly with BAAM clients without any benefit to Britam shareholders. As a result of the dispute, the 1st - 3rd appellants resigned from Britam on various dates between August and September 2014. Subsequently, the 1st - 3rd appellants formed a rival company, Cytonn Investments Limited (the 4th respondent).
6.
As a consequence, BAAM instituted various civil suits against the appellants and Acorn on or about October 2014, seeking restitution of funds allegedly fraudulently transferred by the 1st - 3rd appellants to Acorn and its affiliates without BAAM’s approval under the guise of investing in real estate as part of the joint venture aforesaid. BAAM also lodged complaints against the appellants with various professional bodies to which they belonged, namely the Advocates Disciplinary Committee, the Certified Financial Analyst Institute (CFA) and the Institute of Certified Public Accountants (ICPAK). In addition, criminal proceedings against the appellants were instituted upon complaints lodged by BAAM.","D. Analysis and Determination
58.
Having considered the respective parties’ pleadings and submissions in the appeal before us, the following issues emerge for determination;
i.
Whether the appellants have properly invoked this court’s jurisdiction under article 163(4)(a) of the Constitution.
ii.
Whether the appeal, or any part of it, is moot, leaving no live controversy requiring adjudication.
iii.
Whether the scope of judicial review has evolved to include merit review of an administrative decision or other action complained of.
iv.
Whether the decision to investigate, arrest and prosecute the appellants constituted an abuse of power by the 1st and 2nd respondents.
v.
Whether the appellants are entitled to the right to access to information under article 35(1)(b) of the Constitution.
vi.
What relief is available to parties?",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/40/eng@2023-06-16
Petition 32 (E036) of 2022,Fanikiwa Limited v Sirikwa Squatters Group & 20 others; Mibei & 10 others (Applicant) (Petition 32 (E036) & 35 (E038) of 2022 (Consolidated)) [2023] KESC 39 (KLR) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko",16 June 2023,2023.0,Nairobi,Civil,Fanikiwa Limited v Sirikwa Squatters Group & 20 others; Mibei & 10 others,[2023] KESC 39 (KLR) ,,"A. Introduction
1.
There are three appeals pending hearing before this Court all arising from the judgment of the Court of Appeal at Eldoret, Civil Appeal 45 & 44 of 2017 (Consolidated) (PO Kiage, K M’inoti & M Ngugi, JJA) delivered on November 18, 2022.
2.
The three pending appeals Supreme Court Petition No 32(E036) of 2022 Fanikiwa Limited v Sirikwa Squatters group & 20 others (Fanikiwa); Supreme Court Petition No 35(E038) of 2022 Mary Jepkemboi Too & Sophie Jelimo Too (Suing as administrators’ ad litem in the Estate of Mark Kiptarbei Too v Sirikwa Squatters group & 20 others and Supreme Court Petition No 36 (E039) of 2022 Lonrho Agribusiness (EA) Ltd & David Korir v Sirikwa Squatters group & 20 others were consolidated by consent on January 16, 2017 with the lead file being Fanikiwa .
3.
Additionally, as a result of the Court of Appeal Judgment, twelve applications have been filed before us. These constitute an application by Fanikiwa to adduce additional evidence, an application by Sirikwa to strike out both the 8th respondent’s replying affidavit and John Hulme’s affidavit sworn on January 9, 2013, and ten applications for joinder of parties. The focus of this ruling is the joinder of parties’ applications. Nine parties, representing the 1st -10th applicants respectively seek to be joined in the consolidated appeal as interested parties. The 10th party, (11th applicant) the Law Society of Kenya (LSK) seeks admission as an amicus curiae.
B. Background
4.
The litigation resulting in the impugned judgment was initiated by Sirikwa Squatters Group (Sirikwa). In the petition filed in the High Court, Sirikwa claimed, inter alia, that they were entitled to land parcels known as LR No 9606, 9608, 742/2, 7739/7R, 12398, 10793, and 10794 (suit property), all in Uasin Gishu District. The basis of this claim was that all the members of Sirikwa were descendants of persons who originally occupied the suit property, but who were forcefully evicted from the suit property by white settlers in the 1920’s. Sirikwa was constituted of people who worked as farmhands and labourers for the registered proprietors of the suit property. The registered proprietors of the suit property changed severally, and at the time of filing suit, the land was registered in the name of the 7th respondent Lonrho Agri-Business East Africa Limited (Lonrho).
5.
It was argued in the trial court that following a request made by Sirikwa to the former President of the Republic of Kenya (the late Moi), the President approved that the suit property be allocated to Sirikwa. It was contended that this never materialized because the Commissioner of Lands (2nd respondent), the Chief Registrar of Titles (3rd respondent), the Director of Land Adjudication and Settlement (4th respondent), the Director of Survey (5th respondent) and the District Lands Officer, Uasin Gishu District (6th respondent) failed to implement the Presidential directive or to execute the necessary conveyance, and/or issuance of titles to Sirikwa. Instead, it was claimed, they fraudulently issued titles to other individuals without following due process.
6.
Thus, Sirikwa petitioned the High Court seeking, inter alia, a declaration that their rights and fundamental freedom and protection to right to property had been violated or infringed or was about to be violated in regard to the suit property through the arbitrary issuance of titles to Lonrho amongst others. It also sought orders cancelling all the titles or any title issued and/or emanating from the suit property as well as damages for breach and/or violation of their constitutional rights.
7.
In his judgment delivered on February 9, 2017, the learned judge (A Ombwayo) found that Sirikwa had a legitimate expectation to be registered as the owner of the suit property. He concluded that Sirikwa had established their claim under the principle of legitimate expectation, and directed, inter alia, that all the resultant titles or any title issued by or emanating from the suit property, issued to Lonrho and Mark Too or any beneficiaries be cancelled and the register rectified accordingly.
8.
The trial court judgment prompted three appeals and a cross-appeal. These were Eldoret Civil Appeal No 44 of 2017, lodged by Lonrho Agribusiness and Mr Korir. Herein, the learned Judge was faulted for: finding that Sirikwa had legitimate expectation to the suit properties; holding that conversion of the titles to the suit properties was unlawful; failing to hold that the suit properties were private property; and for failing to hear many affected parties. Eldoret Civil Appeal No 45 of 2017 filed by Fanikiwa faulted the learned Judge for canceling the applicants’ forty-four titles carved out of the suit properties and registered in its name without affording it an opportunity to be heard. Eldoret Civil Appeal No 68 of 2017 filed by Mary Jepkemboi Too and Sophie Jelimo Too, the administrators of the estate of Mr Too, faulted the learned Judge for holding that the suit properties were surrendered for purposes of settling members of Sirikwa and for canceling indefeasible titles The cross-appeal filed by Sirikwa challenged the learned Judge’s finding that Mr Too had legitimately purchased 27 hectares from the suit properties and that no fraud or wrongdoing had been proved against him.
9.
The three appeals were consolidated with Civil Appeal No 45 of 2017 being the lead file. It was then brought to the attention of the Court that many parties were likely to be affected as a result of the judgment of the trial court which canceled resultant titles emanating from the suit property. The Court of Appeal issued an order dated October 1, 2018 and directed Fanikiwa to publish within 14 days a notice in one of the daily newspapers with wide circulation notifying the public of the judgment issued by the trial court, its effect, and the existence of the three appeals.
10.
Following the public notice and applications for joinder, seventy- eight individuals and seven financial institutions were joined as respondents in the appeal. The individual applicants based their applications for joinder on the assertion that they were innocent purchasers for value without notice and that their titles were canceled without being heard. On their part, the financial institutions hinged their applications on the fact that they were not afforded an opportunity to be heard, and that they stood to suffer massive loss because they held valid charges over some of the nullified titles on the strength of which they had advanced substantial loans to the registered owners.
11.
Consequently, by a judgment delivered on November 18, 2022, the Appellate Court, (Kiage, M’inoti, Mumbi Ngugi, JJA) dismissed the consolidated appeals; varied the trial court judgment to the extent that the nullification of the titles of the individual and financial institution respondents who were joined to the appeal was set aside; and allowed Sirikwa’s cross-appeal. This is what triggered the consolidated appeal and the ten applications for joinder of parties before us.","Consequently, we make the following orders:
a.
The notice of motion application dated December 6, 2022 filed by Ezekiel Kibet Mibei and Naftali Kiplimo Mibei is disallowed.
b.
The notice of motion application dated December 30, 2022 filed by Solomon Estimoa Luvai and 624 other applicants is disallowed
c.
The notice of motion application dated January 10, 2023 filed by Simon Macharia Maina & 48 others is disallowed.
d.
The notice of motion application dated January 11, 2023 filed by Mark Somoey & 13 others is disallowed.
e.
The notice of motion application dated January 13, 2023 filed by Kibwari PLC is disallowed
f.
The notice of motion application dated January 13, 2023 filed by John K. Sitenei & 9 others is disallowed.
g.
The notice of motion application dated February 17, 2023 filed by Charles Sang’anyi Nyameino & 26 others is disallowed.
h.
The notice of motion application dated January 12, 2023 filed by James Kipkerebulit Yatich & 438 other applicants is disallowed.
i.
The notice of motion application dated February 8, 2023 filed by the University of East Africa -Baraton is disallowed.
j.
The notice of motion application dated February 7, 2023 filed by the Law Society of Kenya is disallowed.
k.
There shall be no order as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/39/eng@2023-06-16
Petition 32 (E036) of 2022,Fanikiwa Limited v Sirikwa Squatters Group & 20 others (Petition 32 (E036) & 35 (E038) of 2022 (Consolidated)) [2023] KESC 57 (KLR) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko",16 June 2023,2023.0,Nairobi,Civil,Fanikiwa Limited v Sirikwa Squatters Group & 20 others,[2023] KESC 57 (KLR) ,,"A. Introduction
1.
The notice of motion before the court is dated January 9, 2023 and filed by the appellant, Fanikiwa Limited, pursuant to articles 10, 20, 24, 25, 159 and 259 of the Constitution, sections 20 and 21 of the Supreme Court Act and rules 3 and 26 of the Supreme Court Rules and prays for orders that;
i.
That this honourable court do admit additional evidence to be adduced by the appellant as outlined in the affidavits by Sophia Chemengen Too and Jeremy Paul Henry Hulme in such manner as this court may direct and/or direct that the evidence of Sophia Chemengen Too and Jeremy Paul Henry Hulme be taken by the trial court or the Registrar of this court;
ii.
That the costs of this application be in the cause.
2.
The application is supported by the affidavit of Sophia Chemengen Too, co-administrator of the estate of the 8th respondent Mark Kiptarbei Too, a former director of the applicant, and is premised on the following, summarized, grounds:
i.
That the Judgment delivered on February 9, 2017 by the Environment and Land Court, at Eldoret, in Constitutional Petition No 4 of 2016, issued an order to cancel the proprietorship of Lonrho Agribusiness (EA) Ltd, the 7th Respondent, in respect to title numbers 9606, 9607, 9608, 745, 745/2, 7739/7R, 12398, 10793 and 10794 (hereinafter the suit properties) and also ordered that the title deeds for these parcels be issued to the 1st respondent, Sirikwa Squatters Group.
ii.
That the suit properties were awarded to the 1st respondent on the basis that the 7th respondent had surrendered the parcels to the Kenya government for onward settlement of the 1st respondent’s members.
iii.
That the decision by the trial court was founded upon a perceived legitimate expectation purportedly arising from “a letter dated October 11, 2001 by the Director of Land Adjudication and Settlement” and “an approval by the late President Moi on October 28, 1998’’.
iv.
That the trial court further ordered “cancellation of all resultant titles or any title issued and/or emanating” from the suit properties. That this order annulled the titles to the properties lawfully purchased by the applicant by way of a Sale Agreement dated September 30, 2003.
v.
That the applicant was not a party before the trial court but subsequently lodged an appeal before the Court of Appeal challenging the decision of the trial court.
vi.
That the Court of Appeal by a judgment delivered on November 18, 2022 held that: the 1st respondent “was indubitably entitled to the five properties on the basis of express conferment by Lonrho Agribusiness (EA) Ltd;” that the express conferment alluded to is a letter by Jeremy Paul Henry Hulme, the General Manager of the registered owner of the suit properties and; that “Mr. Hulme had power and authority to surrender the land and specify the purpose of the surrender”; that the “the true basis of Sirikwa’s claim is the voluntary surrender of these parcels by the registered owner, not the approval or concurrence by the former President”.
vii.
That Mr. Hulme did not testify in the superior courts and the conclusion reached by the Court of Appeal was not based on any evidence.
viii.
That the additional evidence sought to be introduced relates to; whether Lonrho Agribusiness (EA) could have surrendered land which had already been sold and transferred to purchasers; and whether Mr Too was Chairman of Lonrho Agribusiness (EA) at the time of the Sale Agreement dated September 30, 2003.
ix.
That the additional evidence could not have been tendered earlier for the reasons that the appellant was not a party in the trial court, had no notice that the constitutional right to its properties were at risk of impeachment; that the focal point before the trial court was whether the land was surrendered to the Kenya government for settlement of the 1st respondent’s members not conferment by Mr Hulme and that the evidence of Mr Hulme became a core issue due to the determination by the Court of Appeal.
x.
That the evidence to be tendered is specific, direct, concise, and not argumentative; that the evidence could not be adduced earlier; and the evidence has only been established after the Court of Appeal judgment where the evidence of Mr Hulme became a core issue for determination.
xi.
That the evidence will be beneficial for the court to render a judgment that is fair and just to both the parties herein and the numerous land owners whose ownership is impacted by the judgment.
xii.
That no prejudice will occur to any party.
xiii.
That the court has discretion to admit additional evidence and for this discretion to be exercised in the appellant’s favour for substantive justice to be advanced.
3.
Sophia Chemengen Too’s supporting affidavit sworn on January 11, 2023 states that the additional evidence the applicant seeks admitted relates to four distinct issues namely:
a.
Evidence by Mr Jeremy Hulme to the effect that he did not write or sign the letter dated November 9, 2000.
b.
Evidence by Mr Jeremy Hulme that the surrender of the leasehold titles under Registration of Titles Act (RTA) was in consideration of Lonrho Agribusiness (EA) Ltd obtaining freehold titles under Registered Land Act (RLA).
c.
Evidence by Mr Jeremy Hulme of the impact that the judgment has on numerous purchasers.
d.
Evidence that the late Mark K Too held one (1) share in the applicant company and he ceased to be the Chairman of Lonrho in September 2000.
4.
A perusal of the affidavit sworn by Jeremy Paul Henry Hulme January 9, 2023 annexed to the instant application shows that the applicant seeks to adduce the following additional evidence:
a.
A copy of a letter produced as annexure ‘JPHH 1 in paragraph 19 of the affidavit. The letter is dated November 9, 2000 from the deponent to the Chairman of Sirikwa Squatters Group informing him that the titles to land reference numbers 9608,745/2, 12398, 7739/7 and 9607 was surrendered to the Kenya Government on November 2, 2000 and requesting him to pursue the matter with the relevant ministry for the final resettlement of the squatters. It is deponed that this letter is a forgery. The other additional evidence sought to be adduced is;
b.
A bundle of surrender instruments from Lonrho Agribusiness Group to the Government of Kenya for Land Reference numbers 745, 9607, 9608, 9609,10793, 10794/2, 11481 and 12398 produced as annexure ‘JPHH-2’ in paragraph 32 of the affidavit.
5.
The 2nd to 21st respondents signed a consent in support of the application. The application is opposed by the 1st respondent who filed a replying affidavit sworn by Benjamin Chepng’otie Ronoh on January 18, 2023. The deponent contends that the applicant is engaging in a re-enactment of the case which is being presented as ‘additional evidence;’ that the issue that the titles to parcels of land reference numbers 9606, 9607, 9608, 745, 742/2, 773917R, 10793 and 10794 was not surrendered in the year 2000 is incorrectly guised as additional evidence since the factual position was determined in the plethora of correspondence produced in the records of appeal and determined by the Court of Appeal; that the applicant was aware of the matter before the Environment and Land Court but did not deem it necessary to join or participate in it; that when the applicant joined the matter before the Court of Appeal and was granted leave to file additional evidence, it chose to introduce evidence in a piecemeal manner.
6.
The 1st respondent further contends that the Agreement for Sale dated September 30, 2003 between Lonrho Agribusiness (EA) Limited and Mark K Too provided that Too was the majority shareholder and director of Lonrho Agribusiness (EA) Limited; that the applicant was granted an opportunity to be heard and that the new evidence lacks any credibility, and should not be admitted.
7.
Additionally, the 1st respondent contends that the Court of Appeal already analysed the issues regarding the sale and purchase of the suit properties, the ‘approval’ by the former President, the ‘surrender’ of the parcels of land for the purpose of resettlement and whether Mr. Hulme had the power and authority to effect conferment. It is contended that these issues do not form the core of the appeal and are not matters for the Supreme Court’s determination at this stage. It is also urged that the Court of Appeal arrived at the finding that the 1st respondent was entitled to the legitimate expectation to be allocated the land based on several documents and this finding was not based on the sole document allegedly written by Jeremy Paul Hulme.
A. Background
The proceedings before the Environment and Land Court
8.
The 1st respondent, Sirikiwa Squatters Group, filed a constitutional petition in the High Court against the 2nd to 11th respondents herein. The petition was subsequently transferred to the Environment and Land Court for determination. The 1st respondent prayed inter alia for a declaration that its constitutional right to property and/or interest over the suit properties be protected and also prayed in particular for;
a.
An Order directing the Commissioner of Lands and the 2nd to 5th respondents to perform their constitutional duties and abide with the letter reference No DS/C/1/10/1/Vol.11/01 dated 11th Day of October 2001 by the Director of Land Adjudication & Settlement, Mr A Shariff, on behalf of the Ministry of Land and Settlement and communication by His Excellency the President of the Republic of Kenya (Retired) directing the approval and issuance of Title deeds for parcel Nos 9606, 9607, 9608, 745, 742/2, 7739/7R 12398, 10793 and 10794 all in Uasin Gishu District for resettlement and allocation to Sirikwa Squatters Group.
b.
A declaration for the protection of Sirikwa Squatters Group’s right to property as it was in real danger of being arbitrarily acquired by the 6th, 7th, 8th ,9th and 10th respondents and their beneficiaries to the detriment of the petitioners.
c.
Damages as against the 1st, 2nd, 3rd ,4th , 5th , 6th , 7th , 8th , 9th and 10th respondents for breach and/or violation of the petitioners constitutional right to properties and protection of the same.
d.
A declaration that the acts of the 9th and 10th respondents of carrying out survey works on the suit parcel of land Ref Nos 9606, 9607, 9608, 745, 742/2, 7739/7R 12398, 10793 and 10794 all in Uasin Gishu without the authority of the Director of Surveys either generally or specifically was thus an illegality, and the said works are of no legal effect and the 9th and 10th respondents are liable in damages and/or compensation to the petitioners for their illegal acts on terms and/or quantum to be assessed by the court.
e.
That together with the grant of the orders above, the honourable court hereby forthwith cancels all the titles or any title issued and/or emanating from LR Nos 9606, 9607, 9608, 745, 742/2, 7739/7R 12398, 10793 and 10794 all in Uasin Gishu to the 6th, 7th respondents and all other beneficiaries and their registers be rectified accordingly.
f.
Costs and any other relief.
9.
The issues delineated by the court for determination were:
a.
Whether the petitioners had legitimate expectation to acquire and be allocated the property.
b.
Whether the disputed parcels of land were private or public land upon surrender.
c.
Which remedies should the court grant?
10.
By a judgment delivered on February 9, 2017, the Court, (A Ombwayo, J), relying on the presidential approval to Sirikwa Squatters Group application dated October 22, 1998, the letters from the Commissioner of Lands dated July 17, 2007 and the letters from the Director of Land Adjudication and Settlement dated June 22, 2007, November 9, 2005 and May 20, 2006 held that all these proved availability of the land for resettlement of the group. The court found that the events as captured in the letters proved that the members of the group had the legitimate expectation to be registered as the owners of the suit properties.
11.
In addition, the trial judge found that the lands in dispute were registered under the Registration of Titles Act-RTA (repealed), and therefore the surrender of the lease was governed by the RTA which did not provide for conversion from leasehold to freehold. The trial judge cited section 44 of the RTA on surrender of land to the Government and found that the lands in dispute reverted to the government upon surrender and were to be managed under the regime of the Government Lands Act (GLA) and not to be converted to the regime of RLA as had happened. The court held that the conversion from GLA to RLA was not lawful and therefore all transactions that followed were a nullity.
12.
Ultimately, the court issued an order directing the 1st, 2nd, 3rd, 4th and 5th respondents (the 2nd to 6th respondent herein) to perform their constitutional duties and abide with the letter reference No DS/C/1/VOL 11/01 dated the 11th day of October, 2001 by the Director Land adjudication & Settlement Mr. A. Shariff on behalf of the Ministry of Land and Settlement, His Excellency the President of the Republic of Kenya (Retired) direct approval of the [ transfer?-see note above ]October 28, 1998 and issue Title Deeds for parcel Nos 9606, 9607 9608, 745, 742/2, 7739/7R, 12398, 10793 and 10794 all in Uasin Gishu District into the names of the 1st respondent for them to resettle and allocate their members.
13.
The trial court further found that the actions of the 6th, 7th & 8th respondents (7th -9th respondents herein) were illegal and an attempt to deprive the 1st respondent of their allocated parcels of land. It also held that the work of the surveyors was illegal and of no legal effect. It proceeded to cancel all the resultant titles or any title issued and/or emanating from LR No 9606, 9607 9608, 745, 742/2, 7739/7R, 12398, 10793 and 10794 all issued to the 7th and 8th respondents herein and all other beneficiaries and ordered for the Registers to be rectified accordingly.
14.
The trial court also found that the registration of the 7th respondent, Mr Too, as the owner of approximately 27 ha of the suit land having paid approximately ksh 30,000,000, did not offend the 1st respondent’s legitimate expectation as the 7th respondent had not been found to be involved in any fraud or wrongdoing. Therefore the court ordered that he be allocated not less than 27 hectares of the suit land and that in the meantime status quo to be maintained in respect of the approximately 27ha occupied and utilized by him.","C. Analysis
31.
This motion raises the question of whether the applicant has met the threshold for the grant of leave to present additional evidence pursuant to rule 26 of the Supreme Court Rules,2020. In particular, rule 26 (1) and 2 provide:
“
(1)
The court may call or admit additional evidence in any proceedings.
(2)
A party seeking to adduce additional evidence shall make a formal application to the court.”
32.
This court has previously pronounced that it ‘must act with abundant caution and care in the exercise of its discretion to grant leave for the filing of further affidavits and/or admission of additional evidence’. (Raila Amollo Odinga & another v IEBC & others [2013] eKLR.)
33.
Further, the principles governing admission of additional evidence in appellate courts in Kenya were enunciated by this court in the case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] eKLR as follows:
“
a.
the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
b.
it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
c.
it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
d.
Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
e.
the evidence must be credible in the sense that it is capable of belief;
f.
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
g.
whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
h.
where the additional evidence discloses a strong prima facie case of willful deception of the court;
i.
The court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The court must find the further evidence needful.
j.
A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.
k.
The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”
34.
Additionally, the court re-affirmed that it “will only allow additional evidence on a case-by-case basis and even then sparingly with abundant caution.”
35.
Noting the applicable principles enumerated we now turn to consider the prayer sought by the applicant to adduce additional evidence. It bears restating the additional evidence sought to be adduced in this matter. The applicant through Sophia Chemengen Too’s affidavit seeks to adduce additional evidence that relates to four distinct issues namely; evidence by Mr Jeremy Hulme to the effect that he did not write or sign the alleged letter dated November 9, 2000; evidence by Mr Jeremy Hulme that the surrender of the leasehold titles under Registration of Titles Act was in consideration of Lonrho Agribusiness (EA) Ltd obtaining freehold titles under Registered Land Act; evidence by Mr Jeremy Hulme of the impact that the judgment has on numerous purchasers and evidence that the late Mark K. Too held one (1) share in the applicant company and he ceased to be the Chairman of Lonrho in September 2000. We pause here to point out that even though it has been deposed that ‘the evidence to be tendered is neither bulky nor argumentative and that it is specific, direct and extremely concise’, this evidence has not been produced to us thus we are left merely speculating as to its contents.
36.
The additional evidence outlined in Jeremy Paul Henry Hulme’s affidavit is a letter, marked ‘JPHH 1’ dated November 9, 2000, from Mr Hulme to the Chairman of Sirikwa Squatters Group requesting him to pursue the surrender by Lornho Agribusiness Limited of the titles to LR Nos 9608, 745/2, 12398, 7739/7 and 9607 with the relevant government ministry for the final resettlement of the squatters, relied on by the appellate court. This letter forms part of the court record. It is nonetheless deponed that this letter is a forgery.
37.
It is evident that both superior courts relied on this letter to make a finding that the 1st respondent was entitled to the five properties on the basis of express conferment by Lonrho Agribusiness. Indeed, the appellate court delivered itself on the following terms:
“….one would have expected the General Manager of the registered owner, writing barely a week after the surrender, to indicate as much. But what does Mr Hulme really say? He emphatically states that the five properties had already been surrendered to the Government and requests Sirikwa to liaise with the relevant Government Ministry 'for final resettlement' of its members 'on the land already surrendered to the Government.' The clear intent manifest in the letter is that the surrender was for purposes of settling the squatters. If indeed the suit properties were surrendered merely for conversion of tenure and transfer to beneficiaries who excluded Sirikwa, it would be expected that the General Manager of the company surrendering the properties would say so upfront. Instead, he states the contrary.It should also be borne in mind that in an affidavit sworn on April 26, 2007 by David Kiptanui Yego, the Vice Chairman of Sirikwa, he deposed that there was a tripartite agreement between Lonrho Agribusiness, Sirikwa and the Government regarding surrender of parcels of land by Lonrho Agribusiness for settlement of Sirikwa squatters. Taking the above into consideration, we are satisfied that the trial court did not err in holding that Sirikwa had legitimate expectation that it would be allocated the suit properties. Those properties were surrendered to the Government for the express purpose of settling members of Sirikwa. The surrender was not contrary to the law because it was by the registered owner, who had power and authority to surrender the land and to specify the purpose of the surrender, which was to settle members of Sirikwa.”
38.
This letter has been a running theme in both superior courts. We note that this is the first time a claim of forgery is being made with regards to it. Even though the applicant was not a party in the trial court, Lonrho Agribusiness EA, the 7th respondent and the former employer of Mr Hulme, has been a party in this matter since the trial court and has never raised the issue of the letter being a forgery. We cannot fathom why the applicant would wait until the 11th hour to make this claim. As such, we are not convinced that this evidence could not be adduced earlier.
39.
The applicant also seeks to adduce evidence that the surrender of the leasehold titles was made for the issuance of freehold titles under the RLA as produced in his evidence marked ‘JPHH2’. This evidence relates to LR Nos 745, 9607, 9608, 9609, 10793, 10794/2, 11481 and 12398. The issue of surrender of the properties is also a common thread in this matter and the 7th respondent, Lonrho Agribusiness Limited, has been a party from the onset of this matter at the trial court. Accordingly, we are unconvinced that the additional evidence sought to be adduced by the applicant is not being utilized for the purpose of removing lacunae and filling gaps in evidence. As such, it is our considered view that the application is an attempt by the applicant to make a fresh case in this petition. In a nutshell, the application has not met the conditions precedent enunciated in the Mohamed Abdi Mahamud case (supra). Consequently, we find that applicant has not met the threshold for the grant of an order for admission of additional evidence.
Orders
40.
Having considered the application dated January 9, 2023 and submissions and the response and submissions by the 1st respondent we find as follows:
a.
The application dated January 9, 2023 is dismissed.
b.
There shall be no order as to costs.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/57/eng@2023-06-16
Petition 32 (E036) of 2022,Fanikiwa Limited v Sirikwa Squatters Group & 20 others (Petition 32 (E036) & 35 (E038) of 2022 (Consolidated)) [2023] KESC 58 (KLR) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, N Ndungu, I Lenaola, W Ouko",16 June 2023,2023.0,Nairobi,Civil,Fanikiwa Limited v Sirikwa Squatters Group & 20 others,[2023] KESC 58 (KLR) ,,"The 1st respondent filed an application that sought for the Supreme Court to strike out the 8th respondent’s affidavit for being filed out of time, to strike out the petitioner’s applications; one that sought to adduce additional, and a joinder application that sought to introduce new parties to the proceedings before the Supreme Court.","Consequently, we make the following orders:
i.
The notice of motion application dated January 30, 2023 is hereby dismissed.
ii.
There shall be no order as to costs.
19.
It is so ordered.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/58/eng@2023-06-16
Petition 13 of 2019,Githiga & 5 others v Kiru Tea Factory Company Ltd (Petition 13 of 2019) [2023] KESC 41 (KLR) (16 June 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola",16 June 2023,2023.0,Nairobi,Civil,Githiga & 5 others v Kiru Tea Factory Company Ltd,[2023] KESC 41 (KLR) ,,"A. Introduction
1.
The petition of appeal dated April 3, 2019 and lodged on April 26, 2019 is brought pursuant to article 163(4)(a) of the Constitution. It arises from the ruling of the Court of Appeal at Nyeri (Ouko (P) (as he then was), Sichale & Otieno-Odek, JJA) in Civil Application No 137 of 2017 delivered on March 28, 2019. The Court of Appeal dismissed the applicants’ application seeking to review a contempt ruling delivered on February 22, 2019.
B. Background
2.
On or about July 9, 2009, Kiru Tea Factory Company Ltd (KTFC) and Kenya Tea Development Agency Holdings Limited (KTDA-HL) entered into a management agreement with KTDA-HL being an agent of KTFC. In turn, KTDA- HL assigned its obligations under the agreement to Kenya Tea Development Agency Management Services Limited (KTDA-MS) creating a further agency relationship. KTDA-HL through its agent, KTDA-MS provided KTFC with company secretarial services as and when required through their Company Secretary, John Kennedy Omanga. This arrangement continued until September 11, 2017 when the Board of Directors of KTFC replaced John Kennedy Omanga with Benard Kiragu Kamau as its Company Secretary responsible for the conduct of elections in its Electoral Areas and Buying Centre Committees.
3.
However, on October 5, 2017, John Kennedy Omanga on behalf of KTDA-HL and KTDA-MS purportedly published an announcement in the daily newspapers convening an Annual General Meeting (AGM) of KTFC scheduled for November 20, 2017. Further, on October 9, 2017, John Kennedy Omanga allegedly issued a notice of a meeting in the Company’s Buying Centre Committee in two Electoral Areas known as Mioro and Kiambuthia. As a consequence, a dispute arose between various members of the Board of Directors of KTFC and its Company Secretary. The dispute involved two factions, having a war of attrition with each faction competing for control of the affairs of the KTFC. One faction was led by Mr Geoffrey Chege Kirundi (Kirundi) while the opposing faction was led by Mr Stephen Maina Githiga (Githiga). The subject matter of the dispute was the holding of a general meeting and the nomination of persons as members of the Board of Directors of KTFC or Tea Buying Centre Committees.","D. Analysis and Determination
38.
This court in a ruling in SC Application No 12 of 2019 delivered on September 4, 2020 framed the following issues for determination;
i.
Whether a court presiding over contempt proceedings has a right to ignore deliberately the responses/defences placed before it by the cited contemnors.
ii.
Whether a court hearing a contempt application can revive the original un-amended contempt of court application in chambers, prosecute and convict on the same upon striking out the amended contempt application.
iii.
Whether a court in presiding over proceedings which have been heard fully on an amended pleading can upon striking out the amended pleading proceed suo motu to determine the original pleading without invitation and participation of either party in the proceedings.
iv.
Whether a court hearing a contempt of court application can convict the alleged contemnors without affording them a hearing.
v.
Whether a court hearing a contempt of court application can overlook a miscarriage of justice to convict for contempt.
39.
Before interrogating the issues as framed, we would like to address two preliminary issues. The first issue is on the jurisdiction of this court to entertain the appeal. we note that even though the issue of jurisdiction was determined by this court vide a ruling dated September 4, 2019, it is important to elaborate on the same as it was argued by the parties during the hearing. Second, we shall also address ourselves to the issue of striking out of the 3rd, 4th, 5th, and 6th respondents from the proceedings.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/41/eng@2023-06-16
Petition 17 (E021) of 2022,Janmohamed (Suing as the Executrix of the Estate of the Late  HE Daniel Toroitich Arap Moi) & another v Lagat & 3 others (Petition 17 (E021) & 24 (E027) of 2022 (Consolidated)) [2023] KESC 59 (KLR) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",16 June 2023,2023.0,Nairobi,Civil,"Zehrabanu Janmohamed SC (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi)
1st Appellant
Rai Plywood (K) Ltd
2nd Appellant
and
Nathaniel K Lagat
1st Respondent
Susan Cherubet Chelugui & David K Chelugui (Suing as the Administrators of the Estate of the Late Noah Kipngeny Chelugui)
2nd Respondent
District Land Registrar Uasin Gishu
3rd Respondent
Registrar Of Titles
4th Respondent",[2023] KESC 59 (KLR) ,,"The plaintiff had filed an application for waiver of fees that had been dismissed by the Registrar of the Supreme Court. Aggrieved the plaintiff filed for review before a single judge of the Supreme Court that was aggrieved. Further aggrieved, the plaintiff filed the instant application.","In conclusion, none of the conditions for the grant of leave to adduce additional evidence have been satisfied;
9.
Having carefully considered the application, responses and submissions by the parties herein, we find no merit in the application and make the following orders:
i.
The motion dated January 13, 2023 and filed on January 18, 2023, is hereby dismissed;
ii.
The costs of this application shall be borne by the applicant.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/59/eng@2023-06-16
Application E002 of 2023,Kagina v Kagina & 2 others (Application E002 of 2023) [2023] KESC 54 (KLR) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, I Lenaola, W Ouko",16 June 2023,2023.0,Nairobi,Civil,Kagina v Kagina & 2 others,[2023] KESC 54 (KLR) ,,"The application sought for among others a review of the Court of Appeal’s decision declining to grant certificate of leave to appeal against the decision of the Court of Appeal. The applicant contended that: the intended appeal raised matters of general public importance as it presented controversy on the law of succession and required precedence on the threshold of what constituted intermeddling and the application of section 45(1) and (2)(a) and (b) and section 55 of the Law of Succession Act Cap 160 Laws of Kenya. The applicant further contended that the matter transcended the circumstances of the case and had an important bearing on the public interest. The applicant’s grievance was that the respondents, who were his co-administrators in the estate of the deceased, had intermeddled with the estate and had either subdivided and sold, alienated or earmarked fraudulently to sell certain properties of the estate. ","Consequently, for reasons aforesaid, we find no issue deserving further input of this court and make the following orders:
i.
The originating motion filed on February 17, 2023 be and is hereby dismissed.
ii.
No orders as to costs.
Orders accordingly.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/54/eng@2023-06-16
Petition 17 of 2020,"Katiba Institute v Attorney General & 9 others (Petition 17 of 2020) [2023] KESC 47 (KLR) (16 June 2023) (Judgment) (with dissent - N Ndungu, SCJ)",Judgement,Supreme Court,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",16 June 2023,2023.0,Nairobi,Civil,Katiba Institute v Attorney General & 9 others,[2023] KESC 47 (KLR)               ,,"A. Introduction
1.
This appeal concerns the nomination and subsequent appointment of three members of the Judicial Service Commission (the JSC/Commission) under article 171(2)(g) and (h) of the Constitution; the questions being whether the nomination and appointment of Patrick Gichohi (the 5th respondent), Olive Mugenda (the 6th respondent) and Felix Koskei (the 7th respondent) as members of the JSC was valid. Secondly, whether section 15 of the Judicial Service Act, 2011 (JS Act) is inconsistent with the provisions of the Constitution for not providing for the qualifications of persons to be appointed under article 171(2)(h), for failure to provide for a competitive process of appointment and for purporting to give the President a role in the appointment of members of the JSC under article 171(2)(b), (c), (d), (f) and (g) of the Constitution.
2.
In considering these questions, it will be relevant to look at the origin and history of the Commission. History is always important in determining questions like these because generally, legal decisions are deeply connected to the past – often to the recent past. Chapter Ten – section 184 of the Constitution of Kenya, which was Schedule Two to the Kenya Independence Order in Council, 1963, established the Commission for the first time under the Westminster Model Constitution with a slim membership of only five, comprising the Chief Justice as Chairman, two persons appointed by the Governor- General acting in accordance with the advice of the Chief Justice, from among the Justices of the Court of Appeal or the puisne Judges of the Supreme Court (equivalent of the High Court); and two persons appointed by the Governor General on the advice of the Chairman of the Public Service Commission.
3.
Under the former Constitution, JSC again comprised five members, the Chief Justice as Chairman, the Attorney General, a representative from the High Court, a representative from the Court of Appeal and the Chairman of the Public Service Commission. The members of JSC were direct appointees of the President. See section 68(1).
4.
As the Judiciary grew in its complement and expanded in its geographical spread, so did the need to expand the composition and functions of the Commission as reflected in various reports such as Report of the Committee to Inquire into Terms and Conditions of Service of the Judiciary, 1991-1992, the Report of the Committee on the Administration of Justice, 1998, and the Final Report of the Task Force on Judicial Reforms, 2009 - 2010. Although the latter Report advised against including a nominee of the PSC as a member of JSC and explained that following the de-linking of the Judiciary from mainstream civil service in 1993, the role of the PSC in the JSC would be superfluous, the final (present) Constitution retained its membership. In accordance with the aforementioned reports, the JSC’s composition was expanded, and its functions enhanced.
B.Background
5.
On February 9, 2018 the President nominated the 5th respondent as a representative of the PSC under article 171(2)(g) and the 6th and 7th respondents as representatives of the public to the JSC under article 171(2)(h). Thereafter, on February 13, 2018 the President forwarded the names of the three respondent nominees to the National Assembly for vetting and approval.
6.
Pursuant to section 6 of the Public Appointments (Parliamentary Approval) Act, the National Assembly, after giving public notice of the vetting exercise, conducted an approval hearing on February 21, 2018. In the process, it received three written objections on the suitability of the 6th respondent. Two of the objections, however, failed the criteria of admission and were struck out, leaving only one by Dr George Lukoye (the 8th respondent). The 8th respondent was the Secretary of the Kenyatta University Chapter of the Universities Academic Staff Union. He brought the complaint and swore an affidavit on behalf of the Union.
7.
According to the affidavit, the 6th respondent was alleged to have occupied the office of the Vice Chancellor of Kenyatta University for 10 years without being lawfully appointed, a matter that was litigated in ELRC Petition No 128 of 2016, Okiya Omtatah Okoiti v Kenyatta University Council & 6 others. It was further claimed that she had influenced Kenyatta University Council and/or Council Committee to recommend a fraudulent exorbitant exit package payment in her favour. That exit package was the subject of another court case in ELRC Civil Case No 2010 of 2016, Olive Mugenda v Kenyatta University & another. She was also accused of financial misappropriation, corruption, abuse of office, irregular payment of allowances and irregular recruitment of staff.
8.
The 6th respondent denied the allegations and maintained that the issues raised were sub-judice ELRC Petition No 128 of 2016 and ELRC Civil Case No 2010 of 2016 which were, at the time the complaints were lodged, pending conclusion before the Employment and Labour Relations Court. She, nonetheless, denied allegations of financial mismanagement and explained that the Ethics and Anti-Corruption Commission (EACC) which had conducted investigations in respect of these allegations found no evidence and closed the file.
9.
Ultimately, after considering the complaints and substance of the complaints, the National Assembly rejected the complaints and approved the appointments of the three respondents, who were subsequently formally appointed as members of the Commission","F. Analysis and Determination
Jurisdiction of this court
55.
It is our responsibility, as a matter of practice, to independently satisfy ourselves that this appeal is properly before the court, even if the issue of jurisdiction has not been raised. In this appeal, however, the 6th respondent’s objection to jurisdiction was limited to the argument by the appellant that the Court of Appeal drew inferences not supported by the evidence. According to the 6th respondent, this issue does not involve the interpretation or application of the Constitution.
56.
The appeal is brought as of right pursuant to article 163(4)(a) of the Constitution. From the petition in the High Court, the arguments before both superior courts below as well as the judgments of the two courts, we have no doubt whatsoever that the subject matter involves the interpretation and application of articles 171 and 250 of the Constitution. The appeal, for these reasons, meets the principles enunciated in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Pet No 3 of 2012; [2012] eKLR.
Turning to the first question,H. Disposition
136.
Consequent, upon our conclusion above, the petition of appeal dated September 7, 2020 is disposed of by making the following orders in answer to the three issues framed for determination:
i.
There is no requirement for fair competition in appointments to the JSC under article 171(2)(g) and (h).
ii.
Section 15(2) of the Judicial Service Act is, to the extent, that it confers on the President the authority to appoint members elected and nominated to the JSC under article 171(2), (b), (c), (d), (f) and (g), unconstitutional.
iii.
The approval by the National Assembly of the 5th respondent was irregular and unnecessary.
iv.
To the extent that section 15(2) confers on the President power to appoint the 5th respondent, it is inconsistent with article 171 and therefore invalid. But it is in harmony with article 171 in so far as it does not prescribe merit, diversity and fair competition as prerequisites for appointment of a representative of the PSC and the two members to represent the public in the JSC under articles 171(2)(g) and (h), respectively.
v.
Parties to bear their own costs.
vi.
We hereby direct that the sum of Kshs 6,000/- deposited as security for costs upon lodging of this appeal be refunded to the appellant.
137
It is so ordered.",Allowed in part ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/47/eng@2023-06-16
Petition (Application) E011 of 2023,"Kenya Airports Authority v Otieno, Ragot & Company Advocates (Petition (Application) E011 of 2023) [2023] KESC 56 (KLR) (Civ) (16 June 2023) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu",16 June 2023,2023.0,Nairobi,Civil,"Kenya Airports Authority v Otieno, Ragot & Company Advocates",[2023] KESC 56 (KLR)               ,,"The applicant filed the instant application seeking a stay of execution of the decree/order resulting from the judgment delivered by the Court of Appeal on May 19, 2023 in Civil Appeal No 39 of 2017 and as a consequence to stay the hearing of the enforcement proceedings pending before the High Court and any other consequential orders arising therefrom pending the hearing and determination of the petition of appeal.
The applicant contended that it had retained the services of the respondent to represent it in a suit filed by various plaintiffs in which the plaintiffs claimed that the court proceeded to strike out the suit with costs; and that the respondent demanded to be paid advocate-client costs based on the certificate of costs derived from party-to-party costs for the sum of Kshs 151, 650, 000. Since the applicant and respondent could not agree on fees, the respondent filed their bill of costs which was taxed at Kshs 8,759,022.74. That finding was upheld upon a reference before the High Court. On appeal, the impugned decision court increased the fees by one half in the sum of Kshs 196,044,750.50.","Accordingly, we make the following orders:
a.
The notice of motion dated April 19, 2023 and filed on April 25, 2023 by the applicant be and is hereby allowed.
b.
That pending the hearing and determination of the petition of appeal against the judgment delivered on May 19, 2021, this honourable court be pleased to order a stay of execution of the decree/order resulting from the judgment delivered by the Court of Appeal on May 19, 2023 in Civil Appeal No 39 of 2017 and as a consequence to stay the hearing of the enforcement proceedings pending before the High Court in Kisumu HCCC Misc Civil Cause 95 of 2011 and any other consequential orders arising therefrom.
c.
The costs of this application to abide the outcome of the appeal.
It is so ordered.",Allowed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/56/eng@2023-06-16
Petition 13 of 2020,Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition 13 & 18 (E019) of 2020 (Consolidated)) [2023] KESC 38 (KLR) (16 June 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, W Ouko",16 June 2023,2023.0,Nairobi,Civil,Kenya Railways Corporation & 2 others v Okoiti & 3 others,[2023] KESC 38 (KLR)               ,,"Introduction
1.
Before this court are two appeals, as consolidated by the consent order dated December 7, 2020.The first appeal is by Kenya Railways Corporation, the 1st appellant herein (KRC) and the second one is by the Attorney General and the Public Procurement Oversight Authority (the 2nd and 3rd appellants respectively). Both appeals are anchored on article 163(3)(b)(1) and 163(4)(a) of the Constitution as well as section 15(2) of the Supreme Court Act, 2011.
2.
The appeals challenge a portion of the judgment of the Court of Appeal delivered on June 19, 2020 in Civil Appeal No 13 of 2015 as consolidated with Civil Appeal No 10 of 2015. In particular, the appellants are aggrieved by the finding by the appellate court that the 1st appellant failed to comply with and violated article 227(1) of the Constitution and sections 6(1) and 29 of the repealed Public Procurement Disposal Act, 2005 (PPDA, 2005) in the procurement of the Standard Gauge Railway (SGR) project.
3.
The 1st and 2nd respondents Okiya Omtatah Okoiti and Wyclife Gisebe Nyakina, cross appealed challenging portions of the impugned judgment principally relating to documentary evidence that was expunged by the High Court as affirmed by the Court of Appeal.
B. Background
4.
On October 28, 2008the then President of Kenya, HE Mwai Kibaki, and the President of Uganda, HE Yoweri Museveni, issued a joint communiqué committing that both countries would replace the Mombasa-Kampala metre gauge railway line constructed during the colonial period and dubbed, “the lunatic express.” The lunatic express was facing a number of technical and capacity challenges and limitations. The communiqué intentioned the change of the outdated metre gauge system with a high-capacity railway system, that is, Standard Gauge Railway (SGR) line linking the Port of Mombasa to Kampala, with a branch line to Kisumu and Pakwach in Uganda.
5.
This commitment was based on the understanding that each country would develop the portion of the SGR line falling within its border under unified technical standards and identify financing for the construction of its portion. About a year later, the two countries reduced their commitment into a bilateral agreement signed on October 1, 2009. Kenya’s portion of the SGR line was to be constructed in two phases - phase 1 covering Mombasa to Nairobi while phase 2 would extend to Malaba from Nairobi with a branch line to Kisumu.
6.
On August 12, 2009 the Ministry of Transport executed a Memorandum of Understanding (MOU) with China Road and Bridge Corporation (CRBC), a state- owned corporation of the People’s Republic of China. Under the MOU, CRBC was to undertake, at its own cost, a feasibility study of the construction of phase 1 covering 500 kilometres and come up with a preliminary design for the project. This included consideration of the technical details, the financing required and the legal implementation of the project. In the event the results of the study were approved, CRBC would be the sole agent to design, construct and supervise all works of the project. Further, upon agreement of the design, parties were to negotiate a commercial contract with CRBC required to source funding for the project.
7.
CRBC submitted the feasibility study report in February 2011, which KRC, the statutory body mandated with the responsibility of the railway network in the country, being tasked with the responsibility to review. The feasibility and preliminary design report was approved by KRC with revisions on June 26, 2012. The approved scope of works included construction of a single-track railway, stations, workshops and freight exchange depots as well as supply and installation of facilities (signalling, communication for trains control, electricity and water supply to each station), locomotives and passenger coaches.
8.
According to KRC, following numerous deliberations between the Government of Kenya through the National Treasury and the Government of China, it was agreed that the Government of China would finance the project through Exim Bank of China, a state-owned financing institution. Thus, Exim Bank would finance 85 % of the costs for the project while Kenya would meet the remaining 15% as a counterpart funding. Additionally, part of the financing by Exim Bank would be issued as a concessional loan while the other part would be a commercial loan.
9.
KRC and CBRC executed commercial contracts. The first one was executed on August 11, 2012 for the construction of the SGR line (civil works). A subsequent commercial contract was executed on October 4, 2012for the supply and installation of facilities, locomotives and rolling stock. The totality of the two contracts was that CRBC was engaged as an engineering, construction and design contractor for the project.
10.
In a bid to meet its portion of the funding of the project, the government introduced a railway development levy at the rate of 1.5% of the customs value of imported goods to be charged on all imports. This levy was introduced by the Finance Bill of June 18, 2013, which is currently provided for under section 117A of the Customs and Excise Act.","In the end, we find merit in the appeal to the extent set out here below and issue the following orders:
i.
The Court of Appeal judgment dated June 19, 2020 is hereby set aside.
ii.
The cross appeal dated September 23, 2022 be and is hereby dismissed.
iii.
We affirm the superior courts’ decision on the expunging of documents.
iv.
The procurement process for the Standard Gauge Railway project was undertaken in conformity with the provisions of article 227 of the Constitution .
v.
The Standard Gauge Railway procurement was undertaken as a government to government contract hence exempt from the provisions of the Public Procurement Disposal Act, 2005 by virtue of section 6(1) of the said Act.
vi.
Each party bears their own costs. It is so ordered.",Allowed in part ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/38/eng@2023-06-16
Petition (Application) E004 of 2023,Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others (Petition (Application) E004 of 2023 & Petition E002 of 2023 (Consolidated)) [2023] KESC 42 (KLR) (Election Petitions) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola",16 June 2023,2023.0,Nairobi,Civil,Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others,[2023] KESC 42 (KLR)               ,,"Two appeals were lodged before the instant court against the Court of Appeal’s judgment at the instance of the County Pensioners Association (the 3rd applicant) and by the Kenya Tea Growers Association and Agricultural Employers Association (the 1st and 2nd applicants respectively). The 3rd applicant filed a notice of motion seeking orders inter alia that- a conservatory order be issued restraining the National Social Security Fund Board of Trustees (1st respondent), the Attorney General (5th respondent) and the Federation of Kenya Employers (13th respondent) and their respective agents, proxies or employees from implementing sections 18, 19, 20 and 71 of the National Social Security Fund (NSSF) Act, 2013 (the Act) pending the hearing and determination of its appeal. 
The gist of the 3rd applicant’s motion was that; the Employment and Labour Relations Court (ELRC) held that the Act was unconstitutional and that subsequently, the Court of Appeal set aside the ELRC’s decision on the ground that the ELRC lacked jurisdiction to entertain the dispute. The 3rd applicant stated that its appeal raised arguable issues which included that; the Court of Appeal misconstrued articles 162(2)(a) and 165(3)(b)(d) and (5) of the Constitution of Kenya, 2010 (the Constitution) as far as the scope of the jurisdiction of the ELRC vis a vis the High Court was concerned. The 3rd applicant further argued that its appeal would be rendered nugatory unless the order sought was granted. 
The 1st respondent opposed the 3rd applicant’s motion on the grounds that; the 3rd applicant lacked locus standi to lodge its appeal and motion; in that, having been joined as an interested party at the ELRC, it could not purport to take over the role of the primary parties by filing its appeal and the motion; furthermore, the 3rd applicant’s membership consisted of former employees of local authorities who were contributors to the Local Authorities Pension Trust (Laptrust) and that the Laptrust scheme was closed in 2012. The 1st respondent thus stated that the Act did not apply to the 3rd applicant nor to its contributors; and as such, the 3rd applicant had no conceivable interest or grievance it could pursue. 
The 1st and 2nd applicants motion apart from seeking a similar order restraining the implementation of sections 18,19, 20 and 71 of the Act, as the 3rd applicant, the 1st and 2nd applicants sought stay of execution and/or implementation of the judgment by the Court of Appeal pending the hearing and determination of their appeal. They argued that their appeal was arguable as the Court of Appeal erred in assuming jurisdiction and determining the merits of the proceedings before the ELRC, which it had declared as null and void. They further argued that their appeal would be rendered nugatory because the implementation of the Act would impose a heavy and unbearable financial burden on its members and if their appeal succeeded, they would not be able to recover the contributions made. ","Consequently and for the reasons afore-stated, we make the following orders:
i.
The 1st and 2nd applicants’ notice of motion dated March 2, 2023 and filed on March 3, 2023 is hereby dismissed.
ii.
The 3rd applicant notice of motion dated February 16, 2023 and filed on February 17, 2023 is hereby dismissed.
iii.
Costs of the motions shall abide the outcome of the consolidated appeal.
iv.
The consolidated appeal be set down for hearing on a priority basis.
It is so ordered",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/42/eng@2023-06-16
Application E010 of 2023,Kioi & another (Suing on behalf of the Estate of Mwangi Kioi (Deceased) v Mukolwe & another (Sued as administrators of the Estate of David Nyambu Jonathan Kituri (Deceased) & another (Application E010 of 2023) [2023] KESC 53 (KLR) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola",16 June 2023,2023.0,Nairobi,Civil,Kioi & another (Suing on behalf of the Estate of Mwangi Kioi (Deceased) v Mukolwe & another (Sued as administrators of the Estate of David Nyambu Jonathan Kituri (Deceased) & another,[2023] KESC 53 (KLR)               ,,"The instant application sought the review of the ruling and orders of the Court of Appeal dismissing the application for grant of certification. Among the orders sought by the applicants were; a certificate that the applicants' intended appeal raised a matter of general public importance and that substantial miscarriage of justice may occur if an appeal was not lodged against the judgment delivered by the Court of Appeal.
The applicants had instituted their claim through an originating summons where they sought orders under the doctrine of adverse possession in relation to the suit property. The High Court dismissed the applicants’ action on the ground that it had failed to prove the claim of adverse possession. Subsequently, the applicants filed an appeal to the Court of Appeal which upheld the decision of the High Court and dismissed the appeal. The applicants aggrieved by the judgment of the Court of Appeal sought certification to appeal to the instant court. The Court of Appeal dismissed the application for certification.
The applicants contended that the Court of Appeal failed to appreciate the gravamen of the application; and that the main issue that was yet to receive a firm and jurisprudence-setting address by the instant court was the interplay between the doctrine of adverse possession and entry into a property pursuant to a sale agreement that was not completed by no fault of the purchaser. The applicants urged that it was of importance to a sufficiently large section of the public; the point of law transcended the facts of the individual case as there were numerous other cases that had different outcomes with respect to the same issue and had a significant bearing on the public interest. ","Accordingly, we are persuaded that in the circumstances, that, the instant application lacks merit and hereby make the following orders:
a.
The notice of motion dated March 3, 2023 and filed on March 12, 2023 seeking review of the Court of Appeal’s ruling delivered on February 17, 2023 in Civil Application Sup No 4 of 2018 be and is hereby dismissed.
b.
The applicants shall bear the costs of the application.
Orders accordingly.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/53/eng@2023-06-16
Petition 21 (E023) of 2020,Member of Parliament Balambala Constituency v Abdi & 7 others (Petition 21 (E023) of 2020) [2023] KESC 35 (KLR) (16 June 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko",16 June 2023,2023.0,Nairobi,Civil,Member of Parliament Balambala Constituency v Abdi & 7 others,[2023] KESC 35 (KLR)               ,,"A. Introduction
1.
Before the court is a petition dated December 16, 2020 and filed on December 21, 2020. The appeal is filed pursuant to article 163(4)(a) of the Constitution and is anchored on the interpretation and application of articles 10, 189, 201(d) and 232 of the Constitution. It revolves around the purported creation of new administrative units by the 2nd respondent (Cabinet Secretary for Interior and Coordination of National Government) within Garissa County and challenges the decision of the Court of Appeal which upheld the decision of the High Court (Mativo, J), in Constitutional & Human Rights, Petition No 238 of 2015 delivered on October 4, 2017.
B. Factual Background
i) Proceedings at the High Court
2.
On May 15, 2015, the 2nd respondent issued two advertisements in the form of notices, Ref Nos DC/HR/1/30/105 and DC/HR/1/30/106 respectively, advertising for the position of Chief Grade II Job Group ‘H’ and Assistant Chief II, Job Group ‘F’ in Garissa sub-county. In the advertisements, the position for Chief was for the area known as Abdisamit Location in Central division and the Assistant Chiefs position was for two sub-locations. The first Assistant Chief position was for ‘Auliya’ sub-location within Abdisamit Location, Sankuri division while the other position was for Laago sub-location, Modika location in Central division. All the areas advertised fell within Garissa County.
3.
After the advertisement was issued, the 1st respondent, a resident of Garissa County, filed before the High Court, Constitutional Petition No. 238 of 2015, claiming that the advertisements were erroneous contending firstly, that in the advertisement for the Chief Position, it purported to show that Abdisamit Location is in Central Division of Garissa sub-county yet it was in Dertu Division, Dertu Ward in Daadab Constituency. Secondly, for the position of Assistant Chief, the advertisement erroneously indicated that Auliya sub-location was in Abdisamit Location of Sankuri Division yet it was in Laago sub-location in Modika Location.
4.
The 1st respondent contended that by issuing these advertisements, the 2nd respondent had ‘purportedly created’ new administrative units namely, Auliya and Laago sublocations without participation from the citizens either directly or through their elected leaders. He also alleged that the advertisements restricted those interested in applying for the positions to only residents of the mentioned location and sub-location.
5.
The 1st respondent therefore challenged the creation of the administrative units on two grounds. First, he claimed that there was no public participation and secondly, that there had already been a determination on those elective/administrative boundaries by the High Court in Nairobi Judicial Review Application No 120 of 2012 that was heard and consolidated with Republic v Independent Electoral and Boundaries Commission & another ex-parte Councillor Eliot Lidubwi Kihusa & 5 others, Judicial Review Misc Application No 94 of 2012 [2012] eKLR which case involved several consolidated Judicial Review applications among them Nairobi Judicial Review Application No 120 of 2012 where the dispute involved the delimitation of boundaries of Balambala and Dujis Constituencies of Garissa County.
6.
The 1st respondent maintained that this decision had never been reviewed, appealed against or varied yet the 2nd respondent, in total disregard of those orders, moved Abdisamit location from Dertu division to Central division of Garissa sub-county and Auliya sub-location, from Dertu ward of Daadab Constituency to Abdisamit location of Sankuri division to Modika location. He alleged that Auliya and Abdisamit geographically fall within Dertu Location of Daadab Constituency and that the intended creation of these new sub-locations into Balambala Constituency would relocate Daadab residents to seek services at Balambala which would in turn, subject them to unnecessary hardship and would therefore be a violation of their right to fair administrative action under article 47 of the v Constitution as well as article 10 on the national values and principles of governance, article 88 that mandates IEBC, the 8th respondent to delimit constituencies as well as article 159 of the Constitution.
7.
The 2nd and 3rd respondents on their part, denied the alleged violations of the Constitution and the law and the violation of existing court orders. They maintained that it was within their mandate to create administrative units and that the issues before the trial court differed from those in the previous suit. They further maintained that their decision was in conformity with the provisions of the Districts and Provinces Act, 1992 (repealed). They furthermore pleaded that the units were created in response to an urgent need to bring services closer to the people, to aid in the maintenance of security along the Kenya- Somali border and, to aid in the provision of relief food. It was also their case that the judgment in Republic v Independent Electoral and Boundaries Commission and another ex-parte Councillor Eliot Lidubwi Kihusa & 5 others; Nairobi Judicial Review No 94 of 2012 [2012] eKLR which included the Judicial Review application filed by one Peter Odoyo Ogada in respect of Suba South and Suba North Constituencies (hereinafter referred to as “Republic v IEBC & 2 others; Nairobi Judicial Review Miscellaneous Application No 94 of 2012) only dealt with electoral boundaries and not administrative boundaries.
8.
The 8th respondent, also opposing the petition, claimed that its constitutional mandate did not include the creation of administrative units, a function vested in the 2nd respondent, and therefore the petition was misguided and ought to be dismissed.
9.
In its Judgment delivered on October 4, 2017, the High Court Mativo, J (as he then was) found that the decision rendered by the High Court in Republic v IEBC & 2 others; Nairobi Judicial Review Miscellaneous Application No 94 of 2012 that also made orders with respect to Nairobi Judicial Review Application No 120 of 2012 related to the issues raised in the present petition and that the judgment still stands. It was therefore the learned Judge’s finding that the 2nd respondent’s decision to create the said administrative units violated the decision in Nairobi Judicial Review Miscellaneous Application No 120 of 2012.
10.
On the issue of whether the 2nd respondent acted within the confines of the law while creating the said administrative units, it was the trial court’s finding that the provisions of section 4 of the National Government Coordination Act as well as the provisions of articles 10 and 189 of the Constitution offer the guiding principles in the creation of such units. More fundamentally, the trial court observed that there was no proper public participation or any serious engagement with the public as expressly provided for under article 10 of the Constitution which lists public participation as one of the values and principles of governance that bind all state organs, officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or makes or implements public policy decisions. The trial court, in addition, found that there was a violation of the provisions of article 47 on the right to fair administrative action as the decision by the 2nd respondent complained of was illegal or ultra vires as it was undertaken in violation of a court decision and hence, not grounded on the law.
11.
For the above reasons, the trial court proceeded to conclude that the 2nd respondent violated the provisions of articles 10, 189, 201(d), 232, 47 and 159 of the Constitution, the guiding principles in section 4 of the National Government Coordination Act No 1 of 2013 by purporting to create new administrative units in violation of the law and disregarding the court decision rendered in Nairobi Judicial Review Application No 120 of 2012 and made a declaration to that effect. The trial court further granted an order of certiorari quashing the decision of the 2nd respondent contained in the advertisement dated May 15, 2015 and an order of mandamus directing the 2nd and 3rd respondents to comply with the decision rendered in Nairobi Judicial Review Application No 120 of 2012.","E. Analysis
i) Whether this Court has jurisdiction to determine the Appeal
45.
The 1st respondent raised the issue of jurisdiction and was emphatic that this court lacks jurisdiction to hear this matter. The question of this court’s jurisdiction to handle appeals filed as of right under article 163(4)(a) is one that the court embarks on before determining a matter on its merits. It thus has to be settled first, in any event, as the 1st respondent, a party before the court, is opposed to this court’s jurisdiction to determine the present appeal.
46.
That being said, the question of whether this appeal is properly before this court was answered and settled by this court in a ruling delivered on October 8, 2021. In that ruling, we found that the contested issues in this appeal were issues of constitutional controversy that had been determined before the High court and the Court of Appeal and involved the interpretation and application of the Constitution. It was our finding in that regard that:
“
From the above, it is evidently clear that though section 4 of the National Government Coordination Act was the basis upon which the trial court adjudicated on whether the administrative actions of the 2nd respondent were done within the confines of the law. The provisions of Section 4 were founded on the provisions of articles 10, 189, 201(d) & 232 of the Constitution, and it is these constitutional provisions that the 2nd respondent was found to be in breach of.”
47.
The upshot therefore is that this matter is properly before us and we hold and find that we have jurisdiction underarticle 163(4)(a) of the Constitution to determine it.
48.
We now proceed to interrogate the issues of constitutional interpretation or application that form the substratum of the appeal.",Allowed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/35/eng@2023-06-16
Application 14 (E023) of 2022,National Bank of Kenya Limited (As the successor in business of Kenya National Corporation Limited) & another v Criticos (Application 14 (E023) of 2022) [2023] KESC 60 (KLR) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, W Ouko",16 June 2023,2023.0,Nairobi,Civil,National Bank of Kenya Limited (As the successor in business of Kenya National Corporation Limited) & another v Criticos,[2023] KESC 60 (KLR)               ,,"The appellant had sought for its appeal to be certified as one that raised issues of general public importance that warranted an appeal to the Supreme Court. Aggrieved the appellant filed an application at the Supreme Court to set aside the decision of the Court of Appeal. The matter of general importance that the appellant sought to be determined was whether a guarantor was discharged upon payment of the principal amount and was therefore not liable for interest, costs and other charges.  
The respondent opposed the application on grounds that no matters of general public importance affecting the banking industry had been raised.","We now opine as follows:
The notice of motion lacks merit as the applicants have not highlighted any issues, the determination of which, would transcend the circumstances of the matter at hand so as to justify a review of the Court of Appeal’s ruling. Neither have the applicants raised any substantial question of law, the determination of which, would have a significant bearing on the public interest.
9.
Consequently, for the reasons aforesaid, we make the following orders:
i.
The notice of motion dated December 22, 2022 and filed on December 28, 2022, is hereby dismissed;
ii.
The costs of this application shall be borne by the applicants.
It is so ordered.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/60/eng@2023-06-16
Petition 28 (E030) of 2022,Njuguna & 46 others v Spire Properties (K) Limited & 12 others (Petition 28 (E030) of 2022) [2023] KESC 37 (KLR) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",16 June 2023,2023.0,Nairobi,Civil,Njuguna & 46 others v Spire Properties (K) Limited & 12 others,[2023] KESC 37 (KLR)               ,,"""A. Introduction
1.
The appellants filed the petition of appeal dated September 12, 2022 pursuant to article 163(4)(a) of the Constitution. They challenge the decision of the Court of Appeal in Civil Appeal No 135 of 2018, consolidated with Civil Appeal No 139 of 2018 which was delivered on July 29, 2022.
2.
The 2nd respondent, Transnational Bank Limited, filed a preliminary objection dated November 3, 2022 challenging this court’s jurisdiction to hear and determine the appeal under article 163(4)(a) of the Constitution. The preliminary objection is supported by the 1st respondent, Spire Properties (K) Limited and is opposed by the appellants and the 5th -13th respondents.
At the oral hearing, we directed and limited the parties to the preliminary objection. Before addressing the preliminary objection, we briefly highlight the background and litigation history of the matter before the superior courts below.
B. Background & Litigation History
3.
The appellants and the 5th-13th respondents were employed by the 3rd respondent on diverse dates between 1981 and 1997 in various capacities and departments at Diani Reef Grand Hotel (the hotel). The 2nd respondent appointed the 4th respondent, RT Dunnet, as the receiver manager vide a deed of appointment dated September 2, 1998, under terms of a debenture, following the failure by the 3rd respondent to meet its obligations therein.
4.
At the point of taking over as receiver manager, the 4th respondent was presented with a list of existing staff and computation of their terminal dues owed to them as at September 2, 1998. The appellants opted to continue working at the hotel and receiving their monthly dues, even after it was placed under receivership. However, unlike those who left employment, the appellants were not paid their terminal dues. The computation of their terminal dues, which was not disputed by any party was Kshs 32, 457,007.00.
i. High Court
5.
The appellants and the 5th -13th respondents instituted Mombasa High Court Civil Case No 62 of 2007 against the 1st-4th respondents vide a plaint dated March 27, 2007. They sought a declaration that they are entitled to be paid their terminal benefits by the 1st – 4th respondents jointly and severally; judgment for the sum of Kshs 32,457,007/=; general damages; and costs and interests.
6.
In a ruling dated March 25, 2013 the High Court (Mwongo J) transferred the suit to the Industrial Court (as it then was) having found that the dispute relates to employment and labour relations. Consequently, the matter was issued a new case number, being Industrial Court Cause No 79 of 2013 and disposed of by that court.
ii. Employment and Labour Relations Court (ELRC)
7.
The appellants urged that; they were employed on permanent and pensionable terms, and were entitled to leave and/or leave allowance and gratuities calculated according to their period of service, upon termination of their employment services; the 3rd respondent did not take any loan facility and therefore the receivership was unlawfully set in motion and without justification; the purported sale of the Hotel was to defeat the payment of the appellant’s terminal benefits; that even assuming that there was a loan, the Receiver Manager was obliged in law to call for a creditor’s meeting setting out a schedule of the secured and unsecured debts indicating, what proportions of such debt would be paid out of the proceeds of sale; it had an obligation to advertise the sale in both local and international dailies so as to receive the best bid which ought to pay all the creditors; no auction sale took place; the sale of the 1st respondent to the 4th respondent was shrouded with mystery and that termination of their employment was irregular, unlawful and improper.
8.
In its defence, the 1st respondent maintained that it never entered into any contracts of employment with the appellants, and it was separate and distinct from the 2nd, 3rd and 4th respondents and therefore, it could not be held liable jointly or severally for their acts and/or omissions. The 2nd and 4th respondents on the other hand averred that the 3rd respondent obtained a loan facility from the 2nd respondent secured by all the necessary security documents prepared and perfected in connection with the loan. That the Receiver Manager was therefore appointed pursuant to the security documents, specifically the debenture, after the 1st respondent defaulted on the loan repayment. They denied the allegations of fraud and maintained that they did not terminate the appellants’ employment as they did not have capacity to do so.
9.
In its judgment dated September 8, 2017 the trial court determined that; there was an intricate web of relationships between the Parties; the appellants were employed by the 3rd respondent and remained as such up to the date the 4th respondent took over running of the business; the appointment of the Receiver Manager did not of itself terminate the contracts of employment; the 3rd respondent was not the appellants’ employer but was the principal wrongdoer who set in motion the receivership and denial of their terminal dues; and that the 2nd respondent was vicariously accountable for the actions of the 4th respondent.
10.
The trial court further determined that; the 2nd respondent did not have a justification for appointing the Receiver/Manager as it was not shown that the 1st respondent had defaulted in its obligations to the Bank of Scotland nor a demand made by the 3rd respondent to the 1st respondent; the 4th respondent had an obligation to advertise the Hotel properly highlighting actual and potential value, including to the international hotel industry; the sale of the hotel was not lawfully carried out, the appointment of the Receiver/Manager having been substantively invalid; and it made a finding that in creditors meetings held, the employees’ concerns were aired and undertakings made by the Receiver/Manager to retain them in employment.
11.
Consequently, the trial court found that; the 2nd, 3rd and 4th respondents were liable to pay the appellants terminal dues of Kshs 29,603,973; the termination of the appellants’ contracts was irregular, unlawful and improper and, granted each of them Kshs 500,000.00 to be paid by all the respondents jointly and severally; including costs and interest on terminal dues at 14% per annum from the date of filing the claim.
ii. Court of Appeal
12.
Aggrieved by the decision of the Employment and Labour Relations Court, the 1st respondent filed Civil Appeal No 135 of 2018. It urged that the trial court erred in finding that the sale of the Hotel was flawed; that there was an employment relationship between the appellant and the 1st respondent; that it made a promise to re-employ the appellants creating a legitimate expectation; that it breached obligations to the appellants; and that it erred in awarding general damages against it.
13.
The 2nd respondent filed Civil Appeal No 139 of 2018 on the grounds that the trial court erred in failing to appreciate that there was no contractual relationship of employment between it and the appellants; that it had all the rights to appoint a receiver under the debenture and that the appellants did not challenge the receivership in a Commercial Court, therefore it had no locus standi to challenge the commercial transaction between the 3rd respondent and the 2nd respondent; interfering and interpreting all contractual documents between the 2nd and 3rd respondents in favour of the appellants who were not parties to those contractual documents; that the allegations of fraud were not proved; general damages were awarded in contravention of the Employment Act; and failure by the trial court to consider their evidence, submissions and authorities.
14.
In a judgment delivered on July 29, 2022, the appellate court allowed the two appeals. It held that the ruling of Mwongo, J could not be construed as having extended the jurisdiction of the ELRC beyond the jurisdiction conferred on that court by the Constitution and by statute, and that article 162(2) of the Constitution as read with section 12 of the ELRC Act limit the jurisdiction of the court to hearing and determination of disputes relating to employment and labour relations. The appellate court’s view was that the pronouncement by the court effectively invalidating and nullifying a receivership was a matter beyond the court’s jurisdiction. Concerning liability, it held that the receiver terminated the claimants’ employment by reason of redundancy and therefore, the 1st respondent was liable. It determined that in the circumstances, a fair compensation for the claimants was an award of 6 months gross salary to each deserving claimant. On the issue of general damages, it held that since the ELRC had no jurisdiction to entertain the issue of the validity and /or legality of the appointment of the receiver, it could not award general damages on that basis. The appellate court’s order read as follows:
“
The only order that remains in favour of the claimants is the six months’ gross salary due and payable by the 1st respondent and they were entitled to costs and interests payable by the 1st respondent. The appellants herein shall bear their own costs but the claimants shall be entitled to costs and interests, payable by the 1st respondent.”
ii. Supreme Court
15.
The appellants have filed the instant appeal, being aggrieved by the decision of the Court of Appeal. It is premised on the grounds that the learned judge erred in law and fact in;
a.
Finding that article 162(2) of the Constitution as read with section 12(1) of the Employment and Labour Relations Court Act, 2011, 2011 which provides for jurisdiction of the ELRC to hear and determine disputes relating to employment and labour relations preclude the ELRC from making pronouncements invalidating and nullifying a receivership as such was a matter beyond the court’s jurisdiction;
b.
Concluding that the challenge to validity/legality of the receivership process before the ELRC was a matter beyond the court’s jurisdiction by dint of article 162(2) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act, 2011;
c.
Failing to interpret and determine that article 162(2) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act, 2011, extends to determination of the validity/legality of processes leading to determination of employment regardless of whether the process is of a commercial nature or any other nature for that matter; and
d.
Holding at paragraph 84 that it had awarded 6 months gross salary to each deserving claimant and paragraph 87 that, “the only order that remains in favour of the claimants is the six months gross salary due and payable by the 1st respondent” whereas this does not pass the dictates of article 10 of the Constitution as it is an impractical order that is self-contradicting since they cannot pay themselves.
16.
As earlier intimated, when the petition came up for hearing on April 26, 2023, we noted that the 2nd respondent had filed the notice of preliminary objection dated November 3, 2022 which we directed that it be argued first. The said preliminary objection is the subject of this determination.
""","D. Analysis and Determination
28.
Upon considering the preliminary objection filed by the 2nd respondent, the submissions filed thereto in support and in opposition, and upon hearing the oral arguments by the parties in court, the only issue for determination is whether this court has jurisdiction to hear and determine the appeal as a matter of right under article 163(4)(a) of the Constitution.
29.
This court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others, Civil Application No 2 of 2011 [2012] eKLR held that a court’s jurisdiction flows from either the Constitution or legislation or both. A court can therefore only exercise jurisdiction as conferred by the Constitution or written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by Law. The Supreme Court’s appellate jurisdiction is set out in article 163(4) of the Constitution of Kenya which states:
“
(4)
Appeals shall lie from the Court of Appeal to the Supreme Court –
a.
as of right in any case involving the interpretation or application of this Constitution; and
b.
in any other case in which the Supreme Court, or Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).”
30.
This court has set out the guiding principles for invoking its jurisdiction under article 163(4)(a) in several of its decisions including in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another (supra) and Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Sup Ct Petition No 10 of 2013 [2014] eKLR. In Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney-General & 2 others Sup Ct Petition No 45 of 2018; [2020] eKLR we stated as follows:
“
(i)
The jurisdiction reveres judicial hierarchy and the constitutional issues raised on appeal before the Supreme Court must have been first raised and determined by the High Court (trial court) in the first instance with a further determination on the same issues on appeal at the Court of Appeal.
ii.
The jurisdiction is discretionary in nature at the instance of the court. It does not guarantee a blanket route to appeal. A party has to categorically state to the satisfaction of the court and with precision those aspects/ issues of his matter which in his opinion fall for determination on appeal in the Supreme Court as of right. It is not enough for one to generally plead that his case involves issues of constitutional interpretation and application.
iii.
A mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involves little or nothing to do with the application or interpretation of the Constitution does not bring an appeal within the jurisdiction of the Supreme Court under article 163(4)(a).
iv.
Only cardinal issues of constitutional law or of jurisprudential moment, and legal issues founded on cogent constitutional controversies deserve the further input of the Supreme Court under article 163(4)(a).
v.
Challenges of findings or conclusions on matters of fact by the trial court of competent jurisdiction after receiving, testing and evaluation of evidence does not bring up an appeal within the ambit of article 163(4)(a).”
31.
It therefore follows, as we determined in Rutongot Farm Ltd v Kenya Forest Service & 3 others SC Petition No 2 of 2016 [2018] eKLR, that in order to address the issue whether this court has jurisdiction or not, the questions that need to be answered are:
(i)
What was the question in issue at the High Court and the Court of Appeal?
(ii)
Did the superior courts below dispose of the matter after interpreting or applying the Constitution?
(iii)
Does the instant appeal raise a question of constitutional interpretation or application, which was the subject of judicial determination at the High Court and the Court of Appeal?
32.
Each case must however be evaluated on its own facts. To enable us resolve the question whether a matter concerns the interpretation and application of the Constitution, we must establish whether the issues raised in the petition fall within the ambit of this court’s jurisdiction, cognisant of the fact that we examine the appeal, not on its merits, but under the lens of the requirements of article 163(4)(a) of the Constitution.
33.
The appellants have set out four grounds of appeal, compressed in their submissions into two issues for determination: whether the ELRC had jurisdiction to entertain the issue of validity and/or legality of the receivership; and whether the Court of Appeal’s judgment violated article 10 of the Constitution.
34.
Having perused the record before us, we note that the matter was first filed at the High Court, and subsequently transferred to the Industrial Court vide a ruling dated March 25, 2013. In the said ruling, Mwongo J stated as follows:
“[8].
… Section 12 of the Industrial Court Act provides: The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with article 162(2) of the provisions or this Act or any other written law which extends jurisdiction to the court relating to employment and labour relations including:- (a). disputes relating to or arising out of employment between an employer and an employee.
[9].
Given the provisions of article 162 (2) and the Industrial Court Act 2011 cited above, the primary constitutional concern in this matter is whether on a proper reading of the pleadings, the dispute herein relates to employment and labour relations. I have no doubt in my mind that the dispute herein relates to employment and labour relations. The monetary prayer is for payment of terminal benefits from employment of the plaintiffs who were allegedly employees of the 1st defendant, subsequently put under receivership of the 2nd defendant allegedly with the involvement of the 3rd defendant.
[10].
The secondary question that arises is whether, given the nature of the pleadings the dispute relates to or arises out of employment between an employer and employee in terms of section 12 of the Industrial Court Act. Again by the same argument, I have no doubt that the disputes in the plaint arise out of an employment scenario.”
35.
We note that the learned judge further stated that:
“
12
…Their jurisdiction is narrowed down to all matters relating to employment and labour relations. Whatever legal or factual scope of such matters, whether involving fraud or receivership or company law, the learned judges of the Industrial Court are entitled to address them fully and substantively. That is how wide the scope of their jurisdiction is.
13.
Thus the argument of the 3rd and 4th defendant that that court cannot deal with matters of fraud is hollow and unpersuasive so is that, that court cannot deal with employment in cases or issues of receivership or arraignment of contract or novation or any other legal issues affecting employment. Such arguments wholly misunderstand the object of article 162(2) which is to create a court similar to the High Court, but where focus is indeed all matters related to employment and labour relations.”
36.
The reliefs sought by the appellants as set out in their Plaint were: a declaration that they were entitled to be paid their terminal benefits by the 1st – 4th respondents jointly and severally; judgment for the sum of Kshs 32,457,007/=; general damages; and costs and interests.
37.
We note that in the ruling transferring the matter to the ELRC, the High Court analysed the pleadings before it and determined that it was an employment and labour relations matter. The court noted the provision of article 162(2) and (3) of the Constitution which empowers Parliament to establish courts with the status of the High Court to hear and determine disputes relating to employment and labour relations and to enact legislation to determine the jurisdiction of the said courts and section 12 of the Industrial Court Act. The High Court specifically addressed itself to section 12 of the Industrial Court Act and the pleadings before it. We note that there was no question of interpretation or the application of article 162(2) of Constitution.
38.
We note that in making its determination, the trial court framed the issues for determination as: what relationship if any, parties had with each other; whether the appointment of the receiver manager was lawful; whether the 1st, 2nd and 3rd respondents acted lawfully in selling the hotel to the 4th respondent; and whether the appellants suffered as a result of the receivership and sale of the Hotel, whether they are entitled to terminal benefits, damages, costs and interest, and if so, from which respondent, and to what extent. The trial court made findings concerning the receivership and held that there was no justification for appointing the receiver/manager, and the sale of the hotel was not lawfully carried out.
39.
The issue before the Court of Appeal on the other hand, was whether the trial court went beyond its jurisdiction, taking note of the ruling of Mwongo, J. It was the appellate court’s view that the said ruling could not be construed as having extended the jurisdiction of the ELRC beyond the jurisdiction conferred to it under the Constitution or statute. The Court of Appeal in its judgment noted that the jurisdiction of the ELRC was resolved in the ruling delivered by Mwongo J on March 25, 2013 where he held that the matter was a dispute relating to employment and labour relations. It further held that the trial court’s pronouncements, by effectively invalidating and nullifying the receivership was beyond the court’s jurisdiction under the Constitution and Statute.
40.
This court in Aviation & Allied Workers Union of Kenya case (supra) stated that it is for the appellant to demonstrate the manner in which the superior courts interpreted or applied the provisions of the Constitution and the impact on its case. We stated:
“
[36]
.. In an appeal such as this, the appellant ought to show how the other superior courts incorrectly interpreted, or applied the relevant provision of the Constitution, and how the right interpretation when applied, would impact upon its case. And “interpretation” or “application”, in this regard, resides in the assumption of a task that transcends just the reference to the rich generality of constitutional principle; it is a task that focusses upon specific clauses of the Constitution, and calls for the attribution of requisite meaning, tenor and effect.”
41
Further, in Hassan Ali Joho cases, (supra) we held that an appeal is admissible if it raises cogent issues of constitutional controversy. We stated:
“[52]
..However, it is to be affirmed that any appeal admissible within the terms of article 163(4)(a) is one founded upon cogent issues of constitutional controversy. The determination that a particular matter bears an issue or issues of constitutional controversy properly falls to the discretion of this court, in furtherance of the objects laid out under section 3 of the Supreme Court Act, 2011 (Act No 7 of 2011).”
42.
Additionally, in Benson Ambuti Adega case (supra) this court held:
“
[45]
…It is manifestly evident from the foregoing that, where the interpretation or application of the Constitution has only but a limited bearing on the merits of the main cause, then the jurisdiction of this court may not be properly invoked. (See Erad Supplies and General Contractors Ltd v National Cereals & Produce Board (supra)).”
43.
We establish from the primary pleading filed at the High Court that the appellants sought their terminal benefits against the 1st – 4th respondents jointly and severally; judgment for the sum of Kshs 32,457,007/=; general damages; and costs and interest. The appellants were seeking their dues from the 1st – 4th respondents upon termination of their employment. It was on this basis that the High Court transferred the matter to the ELRC as the matter related to employment and labour relations. It was also the Court of Appeal’s finding that the transfer of the matter to the ELRC could not be construed as having extended the court’s jurisdiction. The issue concerning the receivership therefore had a limited bearing to the main claim by the appellants. In Stanley Mombo Amuti case (supra) we noted that in Erad Supplies and General Contractors Ltd case (supra) we specifically stated that:
“
Where the interpretation or application of the Constitution has only but a limited bearing on the merits of the main cause, then the jurisdiction of this court may not be properly invoked. Indeed, in Aviation and Allied Workers Union (supra) we added that the mere reference to the rich generality of constitutional principle as the Court of Appeal did in the present case, is not a sufficient ground to invoke article 163(4)(a). The same must be said of the present cause.”
44.
To this end therefore, we find that this court does not have jurisdiction to entertain the consideration and determination of the issue whether the ELRC had jurisdiction to entertain the issue of validity and/or legality of the receivership in the instant appeal. Further, calling on this court to determine the issue would be seeking to have the court address itself to the extent of the application of the provisions of section 12 of the ELRC Act, which statutory provision was not under constitutional challenge before any of the superior courts below. Consequently, we declare that this court is not clothed with jurisdiction to consider this matter under this issue touching on receivership.
45.
The twin issue that the appellants seek a determination of is whether the Court of Appeal’s judgment violated article 10 of the Constitution. The appellants seek a determination on
“whether the Learned Judges of Appeal erred by holding at paragraph 84 of the judgment that it had awarded 6 months gross salary to each deserving claimant and paragraph 87 of the judgment where it held that,
“The only order that remains in favour of the claimants is the six months gross salary due and payable by the 1st respondent.”
The appellants contend that this holding does not pass the constitutional dictates under article 10 of the Constitution as, whereas the court made the said findings, it did not determine who among the appellants was a deserving claimant entitled to the six months gross salary. They further aver that the order for payment of the six months’ salary was to be effected by the 1st respondent, who happened to be one of the claimants. It is therefore their submission that the matter took a Constitutional trajectory as the Court of Appeal decision is in contravention of article 10 of the Constitution for lacking transparency and accountability.
46.
In this court’s decision in John Florence Maritime Services Limited case (supra) we noted that in determining whether the matter took a constitutional trajectory, it requires a look at a court’s reasoning and even the processes and procedures adopted by a court in its proceedings, noting the court’s discretionary mandate. We stated:
(39)
It again follows that a determination of whether a matter has met the appellate jurisdictional threshold embodied in article 163(4)(a) of the Constitution is not based on principles cast in stone. This is a discretionary mandate and power that the Supreme Court exercises judiciously on a case to case basis. Therefore, where a litigant before this court alleges that in exercise of their constitutional mandates the superior courts contravened the Constitution in the conduct of their proceedings, in protecting the Constitution that is the embodiment of the aspirations of the people of Kenya, this court may assume jurisdiction to correct such an anomaly.""
47.
The appellants aver that the judgment lacked clarity, was impractical and self-contradicting. The appellants’ grievance is that the Court of Appeal awarded the claimants six months gross salary due and payable by the 1st respondent, whereas the 1st respondent was one of the claimants and not determining who was a “deserving claimant.” The question for determination under this issue is therefore whether the matters raised by the appellants are anomalies about which this court ought to assume jurisdiction, noting that the Supreme Court is not only charged with the interpretation and application of the Constitution, but the protection of the Constitution as well.
48.
The appellants aver that “upon disposal of the matter by the Court of Appeal it remained unclear to the petitioners as to whether they actually got any relief from the court since the only relief granted by the court lacked clarity, was impractical and self-contradicting. The relief granted ended up to be of no assistance in resolving the dispute.” In response to this issue, the 1st respondent submitted that the alleged errors made by the Court of Appeal are capable of being corrected under the slip rule provided under rule 37(1) of the Court of Appeal Rules or through the settlement of terms under rule 34(2) of the Court of Appeal Rules.
49.
Our understanding of this averment is that the appellants are unable to comprehend the import of the judgment by the Court of Appeal. The appellants are therefore, in essence, asking us to interpret and clarify the said judgment. In Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission Chairman (IEBC) & another Sup Ct Presidential Election Petition No 1 of 2017 [2017] eKLR in our ruling delivered on October 17, 2017 we held (paragraph 56) that this court has no jurisdiction to interpret its decisions or those of other courts. We therefore cannot heed the appellants’ call to assist them in understanding the judgment, more so, through the present appeal.
50.
It is our considered view that this is an issue that can be addressed by the Court of Appeal. The appellants ought to have moved the Court of Appeal appropriately to either confirm or clarify the import of its decision. Rule 34(2)(d) and (e) of that court’s rules provides that-
“
(2)
Where a decision of the court was given in a civil application or appeal
d.
if the parties do not agree on the form of the order, or if there is non- compliance with sub-rules (a) and (b), the form of the order shall be settled by the presiding judge or by such judge who sat at the hearing as the presiding judge shall direct, after giving all the parties an opportunity of being heard;
d.
if the parties are unable to agree which party was substantially successful, the Registrar, on the application of either party, which application may be made informally, and after giving all parties an opportunity of being heard, shall direct by which party the draft is to be prepared, and such direction shall be final.”
51.
Rule 35 of the Court of Appeal Rules on its part, makes provision for correction of errors. It states-
“
(1)
A clerical or arithmetical mistake in any judgment of the court or any error arising therein from an accidental slip or omission may at any time, whether before or after the judgment has been embodied in an order, be corrected by the court, either of its own motion or the application of any interested person so as to give effect to what the intention of the court was when judgment was given.
(2)
An order of the court may at any time be corrected by the court, either of its own motion or on the application of any interested person, if it does not correspond with the judgment it supports to embody or, where the judgment has been corrected under sub-rule (1), with the judgment as so corrected.”
52.
We therefore find, taking into account the cited provisions, that this issue does not fall under the ambit of article 163(4)(a) of the Constitution. We state so because the issues raised largely revolve around factual contestations as among the parties, which the superior courts below were engaged in, to enable them determine the extent of culpability, if any, as among the different parties.
53.
For the reasons set out above, we decline the invitation to assume jurisdiction in respect of this appeal. As stated in Daniel Kimani Njihia v Francis Mwangi Kimani & another SC Application No 3 of 2014 [2015] eKLR, this court had not been conceived as just another layer in the appellate -court structure. Much less an explainer to litigants and counsel of judgments of superior courts below.
54.
Considering this court’s decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Sup Ct Petition No 4 of 2012; [2014] eKLR which set out the legal principles that guide the grant of costs and enunciated that generally, costs follow the event and costs should not be used to punish the losing party, but to compensate the successful party for the trouble taken in prosecuting or defending a suit, and noting that this matter did not proceed to hearing of the appeal on the merits, and to bring closure to the litigants before the court, we exercise our judicial discretion in ordering that each party shall bear its costs.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/37/eng@2023-06-16
Application E015 of 2023,"Otieno, Ragot & Company Advocates v Kenya Airports Authority (Application E015 of 2023) [2023] KESC 55 (KLR) (Civ) (16 June 2023) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",16 June 2023,2023.0,Nairobi,Civil,"Otieno, Ragot & Company Advocates v Kenya Airports Authority",[2023] KESC 55 (KLR)               ,,"Brief facts
The instant application sought among other orders; the review the ruling of the Court of Appeal in Civil Application Sup. No. E001 of 2012 (Kisumu) in which that court allowed the respondent’s application seeking certification that an intended appeal to the Supreme Court raised questions of general public importance and granted leave to appeal. The applicant argued that the intended appeal to the Supreme Court did not raise questions of general public importance since it did not meet the criteria set out in law and the principles that had been developed by this court in the Hermanus Phillipus Steyn v Giovanni Gnecchi -Ruscone, SC Application No. 4 of 2012; [2013] eKLR. 
The applicant further argued that the dispute between the parties had always been about payment of professional fees for services rendered by the applicant as an advocate to the respondent who had been sued for Kshs.13,932,000,000; and that since the parties differed on fees, the applicant filed advocate and client bill of costs and was awarded Kshs.8,759,022.74 including disbursements by the taxing officer. The applicant further claimed that the taxing officer arrived at that sum by increasing the instruction fees by one half as provided for under Schedule Part A and B of the Advocates Remuneration Order, 2014.
Issues
Whether the manner in which advocates fees were taxed was appealable to the Supreme Court as a matter of general public importance considering the existence of divergent positions by courts.
","Upon perusing the notice of motion by the applicant dated March 31, 2023 and filed on even date pursuant to article 163 (5) of the Constitution, rule 33(2) of the Supreme Court Rules, 2020 and all other enabling provisions of the law, seeking orders that:
1.
This court be pleased to review the ruling of the Court of Appeal in Civil Application Sup No E001 of 2012 (Kisumu) dated the March 17, 2023 by which the said court allowed the respondent’s application dated June 2, 2021 seeking certification that an intended appeal to the Supreme Court of Kenya against a decision of the said court delivered on May 19, 2021 in Civil Appeal No 39 of 2017 raised questions of general public importance and granted leave to appeal.
2.
Upon the grant of the order for review, this honourable court be pleased to find that the intended appeal does not satisfy the criteria for the grant of an order for certification and leave under the Constitution and the law and that therefore the Court of Appeal should have refused the respondent’s application dated June 2, 2021 seeking certification and leave to appeal to this honourable court.
3.
The costs of the proceedings be borne by the respondent.
2.
Upon perusing the grounds on the face of the application; the supporting affidavit and further affidavit sworn on March 31, 2023 and April 26, 2023 respectively by David Otieno; and written submissions dated March 31, 2023 and filed on April 4, 2023 wherein the applicant argues that the intended appeal to this court does not raise questions of general public importance since it does not meet the criteria set out in law and the principles that have been developed by this court in the Hermanus Phillipus Steyn v Giovanni Gnecchi -Ruscone, SC Application No 4 of 2012; [2013] eKLR; that the dispute between the parties has always been about payment of professional fees for services rendered by the applicant as an advocate to the respondent who had been sued for Kshs 13,932,000,000/-; that since the parties differed on fees, the applicant filed advocate and client bill of costs and was awarded Kshs 8,759,022.74 including disbursements by the taxing officer; that the taxing officer arrived at the said sum by increasing the instruction fees by one half as provided for under Schedule Part A and B of the Advocates Remuneration Order, 2014; and
3.
Upon considering the applicant’s further argument that there is no ambiguity for the law is clear and decisions of superior courts have remained constant; that notwithstanding the clarity on the law, the applicant castigates the appellate court for relying on minority decisions of the superior court as constituting differences in opinions at the superior court; that the invitation of determining what “subject value” means is frivolous since the courts are clear about what the subject is in each case; that the respondent cannot propose this court to litigate on matters that were never raised, addressed and determined before the superior courts, as reiterated by this court in Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others, SC Application No 2 of 2015; [2015] eKLR. The applicant affirms that the only reason the respondent wants to prefer an appeal to this court is because the sum increased to Kshs 196,044,750.50/-; and
4.
Upon perusing the respondent’s replying affidavit sworn on April 17, 2023 by Margaret Munene and written submissions dated April 26, 2023 and filed on April 27, 2023 in which the respondent, in opposing the application, contends that the applicant raises no new issue warranting review because they reiterate the objections raised before the Court of Appeal; that the appellate judges correctly found that the intended appeal meets the criteria set out in the Hermanus Phillipus Steyn case given that the issues impact the public interest and therefore transcend the private interests of the parties to this dispute; that there are divergent opinions of majority and minority of the superior court regarding the interpretation and application of the provisions of schedule VI part A and B of the Advocates Remuneration Order, 2014 and the question of the exercise of the taxing officer’s judicial discretion leaving the law unsettled on this subject; that to the extent it remains unsettled, the right to access to justice as enshrined under article 48 of the Constitution may be impeded by claims of unreasonable fees; and
5.
Cognisant that the questions of law as certified by the Court of Appeal for appeal to this court are:
a.
The proper interpretation of the provisions of schedule VI part A and B of the Advocates Remuneration Order, 2012 and in particular whether the phrase ‘fees prescribed in A above increased by one – half’ effectively takes away the taxing master’s judicial discretion in the taxation of an Advocate-Client bill of costs;
b.
The proper judicial interpretation of the term ‘subject value’ in instances where the subject matter of a dispute although pleaded is fictitious and unsubstantiated and hence unascertainable from the pleadings without valuation
c.
Whether a certificate of taxation of party and party costs is binding per se on the taxing master in the taxation of the Advocate – Client bill of costs and whether such certificate completely fetters discretion and appreciation of actual work done in assessing Advocate-Client instruction fees.
d.
Whether the costs awarded to an Advocate should be allowed to be so punitive (in this case being an increment of instruction fees by the majority of Court of Appeal from Kshs 5,000, 000/- to Kshs 196, 044, 750.50/-) with the effect of impeding access to justice as guaranteed underarticle 48 of the Constitution; and
6.
Bearing In Mind the provisions governing this court’s jurisdiction under article 163(4)(b) of the Constitution to hear appeals from the Court of Appeal on matters of general public importance, as well as section 15B of the Supreme Court Act and rule 33(2) of the Supreme Court Rules, 2020 on the right to review the Court of Appeal’s decision on certification of a matter as one of general public importance; and
7.
Taking Into Account the parameters of what amounts to a matter of general public importance as set out by this court in Hermanus Phillipus Steyn case, as appreciated by the parties and the Court of Appeal; and the additional guidelines in Malcom Bell v Daniel Toroitich Arap Moi & another, SC Application No 1 of 2013; [2013] eKLR;
8.
We have considered the application, responses thereto and submissions put forth by the parties and now opine as follows:
i.
The main legal issue identified for certification is the interpretation of the provisions of Schedule VI, Part A and B of the Advocates Remuneration Order 2014 to the extent to which such interpretation limits the exercise of the taxing officer’s judicial discretion in taxation of advocate-client bill of costs especially where the value of the subject matter of a dispute, although pleaded, is not substantiated.
ii.
At the heart of the dispute between the parties is the manner in which the Advocates fees were taxed using either of the parameters set out in the Advocates Remuneration Order, whose outcome portends a massive difference in the entitlement of advocates fees as awarded by the courts. We also note that the Court of Appeal, though differently constituted, has pointed out the prevailing controversy. In Kinyua Muyaa & Co Advocates v Kenya Ports Authority Pension Scheme & 8 others (Civil Appeal (Application) 69 of 2020) [2022] KECA 1119 (21 October 2022) (Ruling), the Court of Appeal stated as follows:
“19. Lastly, there is the contention that “there is uncertainty in the previous holdings by the Court of Appeal with some justices of appeal holding that a certificate of costs in a party & party bill is binding in an advocate/client bill of costs and that the taxing master need only increase that certificate with 50%”. There is merit in this contention. …”
iii.
We are satisfied that this case affords a sufficient opportunity for the need to decisively address the issue and that this issue transcends the circumstances of this particular case and has a significant bearing on the public interest considering the existence of divergent positions as appreciated by the Court of Appeal.
iv.
We see no difficulty in appreciating that the Court of Appeal correctly interrogated the proposed questions under the threshold set out in Hermanus Phillipus Steyn Case in arriving at its decision. We therefore, decline to vacate its finding.
v.
As for costs, it is only prudent that we defer costs to follow the ultimate outcome of the appeal.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/55/eng@2023-06-16
Petition (Application) E005 of 2023,Stanbic Bank Kenya Limited v Santowels Limited; Kenya Bankers Association (Intended Interested Party) (Petition (Application) E005 of 2023) [2023] KESC 45 (KLR) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",16 June 2023,2023.0,Nairobi,Civil,Stanbic Bank Kenya Limited v Santowels Limited; Kenya Bankers Association,[2023] KESC 45 (KLR)               ,,"Whereas the Court of Appeal by a ruling dated February 17, 2023 in Civil Applic. (Sup) No E196 of 2022 granted leave to Stanbic Bank Kenya Ltd (the appellant) to file the appeal, Petition No E005 of 2023, under Article 163(4)(b) of the Constitution in the following terms:
'
We have also considered the applicant’s grounds in support of certification and in our view, the intended appeal primarily revolves around the proper interpretation and application of sections 44 and 52 of the Banking Act. As we understand it, the applicant is saying that the courts have given different interpretation on instances when the consent of the minister in charge of finance is required and instances when the parties have freedom of contract to agree on the rate of interest, including the right to vary that rate.
Having considered the issue, we find there is uncertainty in the law arising from the contrary views in the High Court and this Court on the question of the rate of interest and banking charges which requires certainty. The battle on whether banks have a free hand to change any rate of interest and banking charges and whether customers can wake up many years after signing contractual documents to challenge the rate of interest has been ranging in our courts for a long time and requires clarification.'; and
2.
Upon considering the Notice of Motion dated March 23, 2023 and lodged on March 24, 2023 by Kenya Bankers Association (the applicant) under Rules 3, 24 and 31 of the Supreme Court Rules, 2020 seeking the following orders:
a.
Leave be granted for the applicant to be joined as an interested party to this appeal.
b.
The costs of this application be provided for.
3.
Taking Into Account the affidavit in support of the motion sworn by the applicant’s Chief Executive Officer, Habil Olaka, on March 23, 2023 and the applicant’s submissions of even date to the effect that; firstly, the applicant and its members have an identifiable stake/interest in the appeal before this Court. In that, the applicant as well as a number of its members are parties in several suits pending before the superior courts below, all of which revolve around the interpretation, application and effect of Sections 44 and 52 of the Banking Act; the issues in dispute in the superior courts below are directly in issue in the appeal before this Court; and this Court’s decision will be final and binding on the superior courts below. Secondly, that the applicant’s members will be prejudiced if the applicant is not allowed to participate in the appeal and be able to put forth submissions on behalf of the banking industry; the submissions not only set out a different perspective from the appellant but are also relevant to the determination of the appeal.
4.
Thirdly, the applicant intends to, submit on the historical development of legislation relating to the control of interest, on one hand and bank charges other than interest, on the other hand; demonstrate that it was never the intention of the Legislature that Section 44 of the Banking Act should control interest; and establish that Section 52 of the Banking Act was intended to preserve contractual obligations and assets of banks from claims by customers seeking to avoid liability for their contractual obligations as well as restrain banks from seeking to recover interest or other bank charges in excess of what is permitted by legislation. In any event, no prejudice will be occasioned to the parties by the applicant’s participation as an interested party; and
5.
Appreciating the fact that when the matter was mentioned before the Hon Deputy Registrar of this Court on March 27, 2023 and April 11, 2023, the appellant’s counsel indicated that the appellant had no objection to the motion; and
6.
Noting that Santowels Ltd (the respondent) by a replying affidavit sworn by its Managing Director, Rajiv Raja, on April 4, 2023 opposed the motion on the grounds that; the crux of the appeal relates to the appellant overcharging interest on its loan account, which issue the applicant cannot respond to or submit on; the question of interpretation of Sections 44 and 52 of the Banking Act neither arose in the superior courts below nor is it subject of the appeal before this Court; the issues in the suits pending before the superior courts below cannot be raised in this appeal; and the joinder of the applicant to the appeal would only convolute the matter; and
7.
Bearing In Mind the guiding principles in considering an application for joinder of an interested party as delineated under Rule 24 of the Supreme Court Rules, 2020 and discussed by this Court Francis Karioki Muruatetu & Another v Republic & 5 Others, SC Petition No 15 & 16 of 2015; [2016] eKLR wherein it was held that -
'
One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:
i.
The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
ii.
The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
iii.
Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.'","We Opine as follows:
i.
It is clear that the Court of Appeal certified the appeal on the basis of uncertainty that had arisen due to conflicting decisions from the superior courts below on the interpretation of Sections 44 and 52 of the Banking Act.
ii.
Having perused the submissions that the applicant intends to put forth as well as the appellant’s written arguments in support of the appeal, we cannot help but note that there is no divergence between the two. In other words, the applicant’s submissions do not offer a different perspective from the appellant.
iii.
Further, the applicant has not demonstrated the prejudice it will suffer if it is not admitted as an interested party. This is because the applicant and its members can advance their interests in the suits pending before the superior courts below, which have the competence to interrogate the evidence and deal with the issues therein. It is our humble view that allowing the applicant to engage in multiple litigation in all the courts will not only be prejudicial to the parties but undermine the core purpose of the hierarchy of courts. Moreover, it is this Court’s duty to safeguard the autonomous exercise of the respective jurisdiction of those superior courts as aptly observed in Peter Oduor Ngoge v Francis Ole Kaparo and 5 Others, SC Petition No 2 of 2012; [2012] eKLR.
9.
Consequently and for the reasons afore-stated we make the following Orders:
i. The Notice of Motion dated March 23, 2023 and filed on March 24, 2023 is hereby dismissed.
ii. The applicant shall bear the costs of the respondent in this Motion.
10
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/45/eng@2023-06-16
Application E003 of 2023,Wafula v Director of Public Prosecution & 149 others (Application E003 of 2023) [2023] KESC 43 (KLR) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",16 June 2023,2023.0,Nairobi,Criminal ,Wafula v Director of Public Prosecution & 149 others,[2023] KESC 43 (KLR)               ,,"Brief facts
The instant application sought among other orders a declaration that: Supreme Court Criminal Petition No E032 of 2022 was duly filed before a court of competent jurisdiction and that the Chief Justice should constitute a five-judge bench to reinstate Supreme Court Criminal Petition No E032 of 2022. The applicant contended that the petition of appeal concerned corruption within the Judiciary and other arms of the state and that the 1st-15th respondents had been compromised to deny his litigation matters within his area of jurisdiction, where the causes of actions occurred. The applicant submitted that the ruling delivered by the court on February 17, 2023 violated articles 163 (3)(b)(i) and (ii), (4)(a-b) and (9) of the Constitution as a single judge bench decision could not be the final decision in a Supreme Court comprising seven judges. 
Issues
Whether a determination by a single judge on the decision of the Registrar was final.","Upon perusing the originating motion dated February 21, 2023 seeking among others declaration that: Supreme Court Criminal Petition No E032 of 2022 was duly filed before a court of competent jurisdiction; her Ladyship the Chief Justice and President of the Supreme Court do constitute a five Judge bench to reinstate Supreme Court Criminal Petition No E032 of 2022 which was filed after the Criminal Court of Appeal declined to admit Court of Appeal Criminal Application No E008 of 2021; and orders transferring the 3rd and 9th up to 14th,th, 61st, 62nd and 93rd respondents who contravened the Supreme Court Rules 2020; and
[2]
Upon perusing the grounds adduced by the applicant in support of the orders sought where he inter alia contends that the petition of appeal concerns corruption within the judiciary and other arms of the state and that the 1st-15th respondents have been compromised to deny his litigations within his area of jurisdiction, where the causes of actions occurred; and
[3]
Upon further considering the applicant’s submissions dated February 21, 2023 wherein he inter alia submits that the ruling delivered by this court on February 17, 2023 violated article 163(3)(i) & (ii), (4)(a-b) and (9) of the Constitution as a single Judge bench decision cannot be the final decision in a Supreme Court comprising seven Judges. In conclusion, he urged the court to allow the filing of his petition of appeal being Supreme Court Petition No E032 of 2022 and notice of motion filed on July 25, 2022; and
[4]
Having considered the application and submissions before us, we now opine as follows:
1.
We take note that even though the application was brought under the wrong provisions of the law, it seeks to review the decision of a single judge.
2.
The instructive provision in this context is rule 6(2) and (3) of the Supreme Court Rules, 2020 which provides as follows:
“
(2)
Any party aggrieved by a decision of the Registrar made under this rule may apply for a review to a single judge.
(3)
A determination by the single judge on the decision of the Registrar shall be final.”
3.
This court having pronounced itself vide a ruling delivered on February 17, 2023 in Supreme Court Criminal Petition No E032 of 2022 where the applicant sought to review the Deputy Registrar’s decision dated November 4, 2022, we find that the court lacks jurisdiction to entertain the instant application on the ground that a determination by a single judge on the decision of the Registrar is final. As such, the decision made by the Honourable Justice W Ouko delivered on February 17, 2023 stands. Consequently, the applicant’s application is hereby dismissed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/43/eng@2023-06-16
Application E003 of 2023,Wafula v Director of Public Prosecution & 149 others (Application E003 of 2023) [2023] KESC 48 (KLR) (Civ) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",16 June 2023,2023.0,Nairobi,Civil,Wafula v Director of Public Prosecution & 149 others,[2023] KESC 48 (KLR)               ,,"Brief facts
The plaintiff had filed an application for waiver of fees that had been dismissed by the Registrar of the Supreme Court. Aggrieved the plaintiff filed for review before a single judge of the Supreme Court that was dismissed. Further aggrieved, the plaintiff filed the instant application.
Issues
Whether the Supreme Court had the jurisdiction to review a decision by a single judge of the Supreme Court in a review of a decision by the Registrar of the Supreme Court to deny waiver of fees. ","Upon perusing the notice of motion dated February 27, 2023 seeking orders for leave to be granted to the applicant to prosecute an originating motion dated February 21, 2023
2.
Upon reading the supporting affidavit of Benjamin Barasa Wafula sworn on February 27, 2023 where he avers that he only attained basic knowledge in paper making and due to his former employer tarnishing his reputation and his advanced age, he has not been able to secure employment. Thus, he is financially unable to cater for the prescribed fees; and
3.
Upon perusing the grounds adduced by the applicant in support of the orders sought wherein he contends that he was employed by Pan African Paper Mills (EA) Company Ltd from January 3, 1983 to September 23, 2003 when his employment was terminated after he allegedly supported the government’s proposal to have Pan African Paper Mills EA Company Ltd raise its employees’ salaries, who were underpaid by 32.39%; and that, after his termination as a Quality Control Checker and Trade Unionist, his capacity to secure employment was crippled affecting his financial status; and
4.
Furthermore, considering the applicant’s originating motion wherein he seeks inter alia a declaration that; Supreme Court criminal petition No E032 of 2022 was duly filed before a court of competent jurisdiction; her Ladyship the Chief Justice and President of the Supreme Court do constitute a five judge bench to reinstate Supreme Court criminal petition No E032 of 2022 which was filed after the criminal division of the Court of Appeal declined to admit Court of Appeal criminal application No E008 of 2021; and orders transferring the 3rd and 9th up to 14th, 18th, 61st, 62nd, and 93rd respondents from their current workstations for contravening the Supreme Court Rules 2020; and
5.
Upon considering the applicant’s submissions dated February 27, 2023 wherein he submits that the government allegedly grabbed his ancestral land being LR No Ndivisi/Muchi 1122 up to 1400 without compensation and that, the County Government of Bungoma is using the village administrator, who is a daughter of the 74th respondent herein, to assess eligible candidates for the award of strange scholarships and bursaries cases in his area of abode; and
6.
Having considered the application and submissions before us, we now opine as follows:
i.
Rule 63(2) of the Supreme Court Rules, 2020 provides as follows:
“
(2) The Registrar may, where satisfied that a party lacks the means to pay the required fees, permit that the matter be lodged.”
ii.
The above-quoted provision confers powers on the Registrar to entertain an application for request for waiver of fees. Any party aggrieved by the decision of the Registrar is permitted to apply for review to a single judge whose decision shall be final by dint of rule 6(2) and (3) of the Supreme Court Rules, 2020. The applicant has failed to invoke this procedure and instead filed a motion directly to the court seeking waiver of court fees to prosecute his application dated February 21, 2023. While aware that the applicant is acting in person and may not be aware of the correct procedure, we are nonetheless constrained not to grant his application for reasons detailed out below.
iii.
An objective merit review of the originating motion dated February 21, 2023, which is the subject of the instant application, reveals that it seeks to review the decision of a single judge emanating from a decision of the Registrar. The Deputy Registrar of this court had on November 4, 2022 dismissed the applicant’s plea to lodge his pleadings in Supreme Court criminal petition No E032 of 2022 and a single judge of this court had on February 17, 2023 declined to review that decision. That decision is final as explained above and therefore granting the present application would be an action in vain. As a consequence, we have no jurisdiction under the above rule to revisit that decision. In the circumstances, we find that the application lacks merit and is hereby dismissed.
7.
For the foregoing reasons, the final orders of the court are as follows:
Orders:
a.
The application dated February 27, 2023 seeking waiver of fees to prosecute an originating motion dated February 21, 2023 is hereby dismissed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/48/eng@2023-06-16
Presidential Election Petition E001 of 2023,Wafula v National Rainbow Coalition Party Of Kenya & 93 others (Presidential Election Petition E001 of 2023) [2023] KESC 46 (KLR) (16 June 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",16 June 2023,2023.0,Nairobi,Civil,Wafula v National Rainbow Coalition Party Of Kenya & 93 others,[2023] KESC 46 (KLR)               ,,"Brief facts
The instant application sought leave to prosecute an Originating Motion dated December 19, 2022 as a pauper due to lack of funds for payment of court fees, and orders staying the Azimio la Umoja One Kenya Alliance and all its affiliated Parties or any organization claiming through the said coalition from organizing demonstrations and picketing in any part of the country until they have proved their purported victory of 8.1 million votes as at August 9, 2022. The applicant contended that Azimio la Umoja  had new and compelling evidence, regarding its loss in the August 9, 2022 presidential election, it should have taken that evidence to court because the demonstrations held by them were in contempt of the Supreme Court decision which upheld the result of the said election.
Issues
Whether the Supreme Court could determine an application based on an originating motion which had not been presented to the court.
Whether the Supreme Court had the jurisdiction to entertain a prayer for leave to approach the court as a pauper in the first instance.
Whether the Supreme Court had the jurisdiction to determine a presidential election petition that was filed out of time.","Upon perusing the notice of motion dated March 13, 2023 seeking leave to prosecute an originating motion dated December 19, 2022 as a pauper due to lack of funds for payment of court fees, and orders staying the Azimio la Umoja One Kenya Alliance and all its affiliated Parties or any organization claiming through the said coalition from organizing demonstrations and picketing in any part of the country until they have proved their purported victory of 8.1 million votes as at August 9, 2022; and
2.
Upon reading the supporting affidavit of Benjamin Barasa Wafula sworn on March 13, 2023 wherein he contends that, if at all the Azimio la Umoja One Kenya Coalition had new and compelling evidence, regarding its loss in the August 9, 2022 presidential election, it should have taken that evidence to court because the demonstrations held by them are in contempt of the Supreme Court decision which upheld the result of the said election; and
3.
Upon perusing the grounds adduced by the applicant in support of the orders sought wherein he contends that; he was employed by Pan African Paper Mills (EA) Company Ltd from January 3, 1983 to September 23, 2003 when his employment was terminated after he allegedly supported a government proposal to raise the Pan African Paper Mills EA Company Ltd employees’ salary, who were underpaid by 32.9%, and after his termination as a Quality Control Checker and Trade Unionist, his capacity to secure employment was crippled thus affecting his financial status; and that an order of stay of the holding of any political rallies pending the determination of this Petition should be issued to stop any scandal that may occasion a state of emergency; and
4.
Having considered the application before us, we opine as follows:
1.
Noting that the originating motion dated December 19, 2022 which the applicant seeks to prosecute as a pauper was not availed to court, we are unable to determine the objective merit of the present application in that context. That motion in any event will be determined separately if need be. Furthermore, rule 63(2) of the Supreme Court Rules, 2020 bestows Upon the Registrar the power to consider a request for waiver of fees at the first instance. The decision of the Registrar is reviewable by a single judge whose decision is final. Therefore, this court is not clothed with jurisdiction to entertain the prayer for leave to approach the court as a pauper in the first instance. Consequently, this prayer must fail.
2.
In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC Application No 5 of 2014; [2014] eKLR we reiterated three principles that guide a court in deciding an application for stay. The principles require an applicant to demonstrate, first that the appeal is arguable and not frivolous; that if the order of stay is not granted the appeal will be rendered nugatory; and finally, that it is in the public interest to grant an order of stay.
3.
This court in George Boniface Mbugua v Mohammed Jawayd Iqbal (Personal representative of the Estate of the late Ghulam Rasool Jammohamed) Misc Application No 7 (E011) of 2021 [2021] eKLR also stated:
“
It must be remembered that the question whether an appeal is arguable, does not call for the interrogation of the merit of the appeal, and the court, at this stage must not make any definitive findings of either fact or law. An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully by the court.”
4.
In the above context, the application herein was filed together with Presidential Election Petition No E001 of 2023 which we have taken time to peruse and to satisfy ourselves that it is arguable.
5.
Article 140 of the Constitution vests this court with the mandate to determine questions relating to the validity of a presidential election. It provides as follows:
“
A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.”
6.
A perusal of the Presidential Election Petition above reveals that it was filed seven months after the declaration of the results of the presidential election.
7.
The question of timelines in the electoral process was addressed in Raila Odinga & 7 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 1 (KLR) (26 March 2013) (ruling) where we stated:
“
…The parties have a duty to ensure they comply with their respective timelines, and the court must adhere to its own. There must be a fair and level playing field so that no party or the court loses the time that he/she/it is entitled to, and no extra burden should be imposed on any party, or the court, as a result of omissions, or inadvertences which were foreseeable or could have been avoided.”
8.
We also emphasized the importance of adhering to electoral timelines in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC Petition No 2B of 2014; [2014] eKLR where we noted:
“
…The constitutional sensitivity about “timelines and timeliness”, was intended to redress this aberration in the democratic process. The country’s electoral cycle is five years. It is now a constitutional imperative that the electorate should know with finality, and within reasonable time, who their representatives are. The people’s will, in the name of which elections are decreed and conducted, should not be held captive to endless litigation.”
9.
Noting that the Constitution sets clear timelines as to when a person can file a presidential election petition, the court is also bound by the same provisions to admit a presidential election petition within the stipulated timeframe. The court can only, therefore, possess the requisite jurisdiction if a presidential election petition is filed within that fixed timeframe. As a consequence, if any presidential election petition is filed outside the stipulated time frame as is in the instant case, then it only follows that the court lacks jurisdiction to entertain the same.
10.
For the foregoing reasons, we must find that we have no jurisdiction to determine the application before us well as the presidential election on which it is predicated, and therefore even as we down our judicial tools, the same must be dismissed and struck out, respectively.
5.
Accordingly, we make the following orders:
a.
The application dated March 13, 2023 is hereby dismissed.
b.
The Presidential Election Petition No E001 of 2023 is hereby struck out for want of jurisdiction.
c.
There shall be no orders as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/46/eng@2023-06-16
Petition 33 (E037) of 2022,WMM v EWG (Petition 33 (E037) of 2022) [2023] KESC 36 (KLR) (16 June 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",16 June 2023,2023.0,Nairobi,Civil,WMM v EWG,[2023] KESC 36 (KLR)               ,,"
A. Introduction
1.
The petition before this court is dated November 23, 2022 and filed on November 24, 2022. The appeal is filed pursuant to the provisions of article 163(4)(a) of the Constitution; section 15A of the Supreme Court Act and rule 39 of the Supreme Court Rules 2020. The appeal challenges the decision of the Court of Appeal (M’inoti, Omondi & Laibuta, JJ A) in Civil Application No E416 of 2021 delivered on November 4, 2022 declining to grant the appellant orders staying execution under rule 5(2)(b) of the Court of Appeal Rules.
B. Background
i. Proceedings at the High Court
2.
The appellant and respondent had cohabited and lived as husband and wife since 2008. The respondent claimed that from the time she started living with the respondent as her husband, she helped the appellant either directly or indirectly to acquire various assets during their cohabitation despite the assets being registered in the respondent’s name. The assets included parcels of land, motor vehicles and developments made on their matrimonial home in Thome (hereinafter referred to as ‘matrimonial properties’). The respondent further claims that she and the appellant were unable to bear a child despite spirited attempts on their part and for that reason, her relationship with the appellant turned sour resulting in the respondent being kicked out of their matrimonial home, eventually resulting in their separation.
3.
Subsequently, the respondent instituted by way of originating summons, proceedings for enforcement of the right to matrimonial home and property in High Court Civil Suit No 1 of 2019 under the provisions of article 28, 29(c) & (f), 40 (1) & (2) and 45(3) of the Constitution; sections 4,6,8,9, 12(2) & (3) and 17 of the Matrimonial Property Act 2013 and other enabling laws seeking various orders inter alia; a temporary injunction restraining the appellant from alienating or interfering with the matrimonial properties pending determination and hearing of the originating summons; a declaration that the matrimonial properties are such properties within the meaning of the Matrimonial Property Act of 2013 and were acquired by the joint funds and efforts of the appellant and respondent; and an order that the said matrimonial properties be valued and sold and the net proceeds be divided equally between the appellant and the respondent.
4.
The respondent then proceeded to file a notice of motion dated October 4, 2019 seeking to amend her originating summons where she sought to include particulars of other immovable properties not listed in her originating summons as well as amendments to the effect that her marriage to the appellant was based on long cohabitation and that she wanted to rely on presumption of marriage in the division of the matrimonial property. The respondent also sought two further declarations; that the appellant and respondent be presumed married between the year 2008 and 2018 and that the marriage between the appellant and respondent be dissolved.
5.
The appellant opposed the application by claiming that the proposed amendments sought to introduce a new cause of action and also ousted the jurisdiction of the High Court to hear and determine the originating summons.
6.
In a ruling dated and delivered on April 30, 2020, the High Court (Muchelule, J (as he then was) exercised his discretion and allowed the notice of motion and in effect, admitted the amended originating summons. The trial judge noted that the practice obtaining is that parties who seek to divorce file a petition before the subordinate court and if they seek a declaration of their interest in any matrimonial property acquired during the marriage and subject to the value of the property, they would file the cause at the High court. He however noted that for purposes of the application for amendment before the court, though it would be desirable for parties seeking the dissolution of marriage to initially file their cause in the subordinate courts, the High Court is nonetheless clothed with unlimited original jurisdiction in criminal and civil cases under article 165(2)(a) of the Constitution and that under section 17(2)(b) of the Matrimonial Property Act, an application or a declaration of rights to any property that is contested between spouses may be made as part of a petition in a matrimonial cause.
7.
The trial judge was also of the view that since the respondent was seeking as part of her prayers, the selling of the matrimonial property and the equal sharing of the proceeds of the sale therefore bringing herself under the provisions of section 7 of the Matrimonial Property Act, then it would be effective and in the interest of justice for all the matters to be dealt with at the High court.
ii. Proceedings in the Court of Appeal
8.
Aggrieved, the appellant moved to the Court of Appeal and filed a notice of appeal expressing their intention to appeal the decision of Muchelule J (as he then was) dated April 30, 2020. It is on the basis of that notice of appeal that the appellant also filed an application under rule 5(2)(b) of the Court of Appeal Rules in Nairobi Civil Application No E416 of 2021 seeking orders to have the proceedings before the High Court in the ruling delivered in Family Suit No 1 0f 2019 (OS) on April 30, 2020 stayed pending the hearing and determination of the intended appeal. The appellant’s intended appeal before the Court of Appeal was anchored on the grounds that the learned judge erred in law and fact by; allowing the respondent’s application and by doing so, usurped the jurisdiction of the Resident Magistrate’s Court in dissolving marriages as expressly conferred by section 2 of the Marriage Act; entertaining the originating summons pursuant to the Matrimonial Property Act despite the fact that no divorce proceedings have been initiated or concluded; and by declaring that the court is clothed with jurisdiction under article 165(2)(a) of the Constitution to determine divorce proceedings notwithstanding that a statute has plainly ousted that jurisdiction and granted it to the Resident Magistrate’s Courts.
9.
In its determination, the Court of Appeal (M’Inoti, Omondi & Laibuta JJA), after considering the grounds of appeal as set out in the appellant’s intended appeal noted that in determining whether the appellant’s application was meritorious, the appellant had to prove that he has an arguable appeal. The appellate court was of the view that the question as to whether the applicant has an arguable appeal turns on the court’s finding on the question of whether the High Court has jurisdiction to hear and determine the respondent’s summons relating to their marital dispute and matrimonial property.
10.
The Court of Appeal, in agreeing with the trial court, held that the High Court has unlimited original jurisdiction under article 165(3)(a) of the Constitution in all matters and that section 66 (2) of the Marriage Act does not override or oust the unlimited jurisdiction of the High Court to hear and determine matters related to the dissolution of marriages. The appellate court therefore noted that in effect, the provisions of article 165(3) of the Constitution supersede the provisions of section 66(2) of the Marriage Act.
11.
It was therefore the appellate court’s finding that since the value of the matrimonial property in issue is claimed to have exceeded the pecuniary jurisdiction of the Magistrate’s Court which is set at Kshs 20 Million for the Chief Magistrate’s Courts and coupled with the unlimited jurisdiction of the High Court, the appellant had failed to prove that he had an arguable appeal with a probability of success.
12.
The Court of Appeal exercised its discretion and declined to issue the orders sought under rule 5(2)(b) of the Court of Appeal Rules on the grounds that the appellant had failed to show that he had an arguable appeal. Having found that there was no arguable appeal, the court found no reason to address the nugatory aspect. The appellant’s notice of motion was therefore dismissed.
iii. Proceedings in the Supreme Court
13.
Aggrieved by the Court of Appeal’s decision, the appellant has filed an appeal before this court laying out two grounds of appeal being:
i)
That the learned judges erred in finding that pursuant to article 165(3) of the Constitution, the High Court’s unlimited and original jurisdiction in civil and criminal matters is only subject to article 165(5) and that article 165(3)(a) supersedes the express limits on jurisdiction on dissolution of marriage in the Marriage Act;
ii)
That the learned judges erred by making conclusive, definitive and/or final findings/pronouncements on the law as regards the jurisdiction of the High Court to hear and determine divorce matters vis a vis the express provisions of the Marriage Act at the interlocutory stage thus preempting the determination of the intended appeal and hence prejudicing the appellant’s right to appeal.
14.
The appellant now seeks the following reliefs:
i)
The ruling and orders of the Court of Appeal delivered on November 4, 2022 be set aside and there be substituted thereof an order allowing Nairobi Civil Application No E416 of 2021 in terms of prayer 2;
ii)
Costs of this appeal be borne by the respondent
iii)
Such consequential or further orders as this honorable court may deem just.
15.
In response to the petition, the respondent filed a replying affidavit dated February 2, 2023 and filed on February 3, 2023. Therein, she opposes the appeal and depones that the notice of appeal is incurably defective for targeting a non-existent decision by quoting the wrong date for the respondent’s application for amendment of her originating summons.
16.
The respondent also depones that the Court of Appeal’s ruling is unassailable, in that the High Court is vested with unlimited jurisdiction under article 165(3)(a) of the Constitution to handle civil and criminal matters; that under section 17(2)(b) of the Matrimonial Property Act, an application for a declaration of rights to any property between spouses may be made as part of a petition in a matrimonial cause and that; considering the value of the properties contested between the appellant and the respondent exceeded Kshs 20 Million, then the High Court is by dint of article 165(3)(a) and section 17(2)(b) of the Matrimonial Property Act, clothed with the jurisdiction to determine the dispute.
17.
In conclusion, the respondent claims that the appellant is asking this court to make a determination on the merits of his intended appeal before the Court of Appeal which would be pre-emptive and embarrass the hearing of the pending appeal by the court. The respondent therefore claims that the appeal lacks merit, is an abuse of the court process, is intended to waste the court’s time and that the same should be dismissed.
","D. Issues for Determination
26.
Flowing from the foregoing, two issues arise for our consideration:
i)
Whether there is a substantive determination of a constitutional question by the Court of Appeal to warrant the invocation of this court’s jurisdiction under article 163(4)(a) of the Constitution and;
ii)
Whether this court has jurisdiction to hear appeals arising from interlocutory orders of the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules.
We shall proceed to address the two issues concurrently.
E. Analysis
27.
The appellant has approached this court under article 163(4)(a) of the Constitution which allows appeals as of right to the Supreme Court in all cases involving interpretation and application of the Constitution. While this court has on numerous occasions made determinations on the extent of its powers under article 163(4)(a) of the Constitution, the question of the extent of this court’s jurisdiction is one we need to address before engaging our minds on the determination of appeals.
28.
The question as to when this court assumes appellate jurisdiction over appeals filed under article 163(4)(a) has been addressed in a number of cases with the court coming up with guiding principles. In Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another SC Petition No 3 of 2012; 2012] eKLR we held that
“
The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163 (4) (a).”
29.
This position was further entrenched in the case of Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013; [2014] eKLR, where we emphasized that:
“
In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the superior courts and has progressed through the normal appellate mechanism so as to reach this court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution.”
30.
Further, in Erad Suppliers & General Contractors Ltd vs National Cereals & Produce Board, SC Petition No 5 of 2012 [2012] eKLR this Court held that:
“
[13A]
In our opinion, a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior court of first instance, is to be resolved at that forum in the first place, before an appeal can be entertained. Where, before such a court, parties raise a question of interpretation or application of the Constitution that has only a limited bearing on the merits of the main cause, the court may decline to determine the secondary claim if in its opinion, this will distract its judicious determination of the main cause; and a collateral cause thus declined, generally falls outside the jurisdiction of the Supreme Court.”
31.
From the above decisions, we reiterate that for an appeal to be properly before this court under article 163(4)(a) of the Constitution, the appellant must show how the Court of Appeal disposed of the matter by way of interpreting or applying particular provision[s] of the Constitution. Therefore, the question before us that remains to be decided is whether article 163(4)(a) of the Constitution grants this court jurisdiction to entertain appeals challenging the exercise of discretion by the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules. The appellant admits that though this appeal arises from a determination of an interlocutory application, he argues that the High Court and Court of Appeal made a determination on a constitutional matter and we should therefore seize jurisdiction and determine the merits of his appeal.
32.
In that regard, the appellant argues that the Court of Appeal erred by determining an issue of jurisdiction through an interlocutory application brought under rule 5(2)(b) of the Court of Appeal Rules. The appellant also contends that the appeal lies as of right as the issue for determination is the interpretation of article 165(3)(a) of the Constitution vis-a-vis the application of sections 2 and 66 of the Marriage Act.
33.
The respondent however contests the jurisdiction of this court to determine this appellant’s appeal by urging that the appellant having confirmed that he still has an intended appeal before the Court of Appeal, is still inviting this court to make pronunciations on the merits of that intended appeal which would in effect, be pre- emptive and embarrass the hearing of the intended appeal before the Court of Appeal.
34.
The appellant now seeks this court’s determination on whether the Court of Appeal erred by finding that the High Court had jurisdiction to determine the originating summons filed by the respondent relating to both their marital dispute and matrimonial property and; whether such a finding defeats the intention of the provisions of the Marriage Act on the dissolution of marriages and Matrimonial Property Act on the division of matrimonial property, as both statutes provide for the relevant procedures as well as the courts to adjudicate on such disputes.
35.
We note that the Court of Appeal, in arriving at its decision, considered whether the High Court has jurisdiction to determine the originating summons filed before it by the respondent. The appellate court held;
“To our mind, the High Court’s unlimited original jurisdiction in civil and criminal matters as conferred by article 165(3) (a) is only subject to clause (5). To that extent, section 66(2) of the Marriage Act, 2014 does not override or oust the unlimited original jurisdiction of the High Court to hear and determine matters relating to dissolution of marriages. In effect, the provision of article 165(3) of the Constitution supersedes section 66(2) of the Marriage Act.
To the extent that the value of the matrimonial property in issue is claimed as exceeding the pecuniary jurisdiction of the magistrates’ courts, which is set at Kshs 20,000,000 in the case of Chief Magistrate’s Courts, and coupled with the unlimited jurisdiction of the High Court, we reach the inescapable conclusion that the applicant has no arguable appeal with a probability of success.”
36.
The decision by the Court of Appeal flows from the High Court decision where the trial court, while determining whether it had jurisdiction to determine the filed originating summons held:
“
For the purposes of this application, I consider that, although it is desirable that a party seeking the dissolution of a marriage goes to the subordinate court, this court is under article 165(2)(a) of the Constitution clothed with unlimited original jurisdiction in criminal and civil cases. Under section 17(2) (b) of the Matrimonial Property Act, an application or a declaration of rights to any property that is contested between spouses may be made as part of a petition in a matrimonial cause. And now that the applicant seeks, as part of her prayers, the selling of the property and the equal sharing of the proceeds of such sale, and therefore bringing herself under section 7 of the Matrimonial Property Act, I consider it appropriate and effectual that all these matters be dealt with in this court.”
37.
Flowing from the above, it is not in dispute that the superior courts made determinations on the question of jurisdiction preliminarily. It is this determination that the appellant seeks to convince us to decide on by claiming that such pronouncements shall have a compounding effect that will lead to the High Court determining matters reserved for tribunals and subordinate courts by arrogating itself jurisdiction whereas there are statutes that specifically provide for such jurisdiction.
38.
We note that in its decision, the Court of Appeal considered whether the appellant had an arguable appeal, and in doing so, considered the question of jurisdiction, which was essentially, the appellant’s main ground of appeal in his intended appeal to the Court of Appeal. The learned judges of appeal aptly captured this issue when they stated:
“
On our reading of the grounds on which the applicant’s motion is founded, the draft memorandum of appeal, the affidavit in support thereof, and the written and oral submissions made to us, we are of the considered view that the question as to whether the applicant has an arguable appeal turns on our finding on a single question: whether the High Court has jurisdiction to hear and determine the respondent’s summons relating to their marital dispute and matrimonial property.”
39.
In interpreting whether the appellant’s application had merit, the Court of Appeal was guided by the provisions of rule 5(2)(b) of the Court of Appeal Rules which provides for stay of execution of proceedings pending the determination of a pending appeal or in the appellant’s case, an intended appeal. The Court of Appeal considered that to be successful, an applicant must first show that the intended appeal is arguable and not merely frivolous and that secondly, the intended appeal, if successful, will be rendered nugatory if there is impending execution of/or further proceedings from the impugned judgment. For the court to determine the first limb it must be satisfied, prima facie, that the appeal or intended appeal is arguable. That is precisely the question the court was answering here, without expressing a definitive conclusion. That can only be done in the appeal.
40.
Having so said, it is not in dispute that the appeal before us is an appeal arising from the interlocutory orders of the Court of Appeal issued under rule 5(2)(b) of the Court of Appeal Rules. The nature of appeals arising from orders issued under rule 5(2)(b) applications filed under the Court of Appeal Rules has previously been determined by this court in a number of cases. In Deynes Muriithi v the Law Society of Kenya & another, Civil Application No 12 of 2015, this court held:
“
…the main purpose of rule 5(2)(b) applications, is that the orders issued therein are for preserving the substratum of the appeal. This means that the Court of Appeal, at that stage, has not yet determined and disposed of the appeal; it is yet to set out its reasoning, in interpretation and application of the Constitution. The Appellate Court has yet to determine the main appeal which must have been heard at the High Court, moving on to the Court of Appeal, and then to this court.”
41.
Also in Teachers Service Commission v Kenya National Union of Teachers & 3 others, Sup Ct Civil Application No 16 of 2015, the question before the court was whether article 163(4)(a) of the Constitution grants this court jurisdiction to entertain appeals arising from interlocutory orders of the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules where the exercise of discretion by the Court of Appeal is contested. In finding that we lacked jurisdiction to handle such appeals, we held that:
“
(35)
The application before us contests the exercise of discretion by the appellate court, when there is neither an appeal, nor an intended appeal pending before this court.
Moreover, the appeal before the Court of Appeal is yet to be heard and determined. An application so tangential, cannot be predicated upon the terms of article 163 (4) (a) of the Constitution. Any square involvement of this court, in such a context, would entail comments on the merits, being made prematurely on issues yet to be adjudged…, Such an early involvement of this court, in our opinion, would expose one of the parties to prejudice, with the danger of leading to an unjust outcome.
(36)
In these circumstances, we find that this court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under rule 5 (2) (b) of that court’s rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court.” Emphasis ours]
42.
In reiterating the above position, we affirm that the Court of Appeal exercises discretionary powers in issuing orders under rule 5(2)(b) of its rules. In the circumstances, we note that the appeal before us arose from an interlocutory decision of the Court of Appeal challenging the exercise of discretion by the Court of Appeal under rule 5 (2) (b) of that court’s rules meaning that there is no substantive appeal before us. There is also no judgment from the Court of Appeal in which constitutional issues have been analyzed and a determination issued. Indeed, in Basil Criticos v Independent Electoral and Boundaries Commission & 2 others, SC Petition No 22 of 2014 [2015] eKLR while interrogating an appeal against orders by the Court of Appeal denying the extension of time where there was no judgment by the Court of Appeal, we found that:
“
[50]
It is clear to us that an appeal against a Court of Appeal decision declining to extend time is not a matter falling under the purview of article 163(4) (a) of the Constitution. In the absence of a judgment by the Court of Appeal, in which constitutional issues have been canvassed, what would this court be sitting on appeal over? We have no doubt that, had this fact been openly ventilated in Court in the initial application by the applicant, the ex parte order for stay would not have issued from the single-judge bench of this court.” [Emphasis ours]
43.
We reiterated this finding in Clement Kungu Waibara v Annie Wanjiku Kibeh & another, SC Civil Application No 31 of 2020 [2020] eKLR where while answering the question posed on what this court would be sitting on appeal over in the absence of a judgment by the Court of Appeal, we went on to find:
“
(12)
Without a judgment of the Court of Appeal which would then create a finality to contested issues and then point parties to the specific limb in article 163(4) to which our intervention would be required, we cannot see how our jurisdiction under that article can be properly invoked.”
44.
We have restated the law on our jurisdiction elsewhere in this judgment as well as our findings in our decisions on the issue of interlocutory appeals to demonstrate that appeals from rulings of the Court of Appeal under rule 5(2)(b) cannot be disguised as appeals under article 163(4)(a) as such appeals are anchored on intended appeals that are yet to be heard and determined. On this basis, we decline the invitation by the appellant to find that we have jurisdiction to determine this appeal.
45.
Before we conclude, and for clarity, we would like to distinguish this court’s finding on lack of jurisdiction to handle appeals arising from interlocutory decisions of the Court of Appeal where there is no substantive appeal pending before us to that where we have assumed jurisdiction in appeals arising from interlocutory applications originating from the High court, through to the Court of Appeal and finally to this court. Of relevance are our decisions in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013 [2014] eKLR and Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others, SC Application No 10 of 2017; [2018] eKLR.
46.
In the Joho case, the issue for determination before the High Court that was presented by way of an application was on the constitutionality of section 76(1)(a) of the Elections Act in line with article 87(2) of the Constitution where the parties invited the High court to exercise its jurisdiction as conferred by article 165(3)(d)(i) to interpret Constitution and determine the validity of this provision of the the Elections Act. The High Court exercised its jurisdiction and rendered a decision which was then appealed to the Court of Appeal and ultimately, to the Supreme Court. This court therefore made a determination that it had jurisdiction as the appeal emanated from a substantive determination of a constitutional question by the Court of Appeal. This court’s jurisdiction was triggered because the issue in dispute had been canvased right through from the High Court to the Court of Appeal, even though the substantive appeal on the outcome of the election petition was still pending before the Court of Appeal.
47.
In the Bia Tosha decision, we considered the question of whether a determination in an interlocutory application legitimately lies on appeal before this court as of right. The court affirmed that this question was answered in the Joho case hence its holding that an interlocutory application which is determined by the Court of Appeal could properly lay a foundation for an appeal before this court. However, we noted that just like in Joho, the resolution must be of a constitutional issue canvassed before the High Court where a determination is rendered, with the decision being appealed to the Court of Appeal and then finally rising to the Supreme Court.
48.
In conclusion, we find that as long as the twin issues of the monetary value of the properties in dispute and the nature of the relationship between the appellant and respondent were not determined by the two superior courts, the appellant has not properly invoked article 163(4)(a) of the Constitution by purporting to challenge the jurisdiction of the High Court. In the circumstances, no appeal lies before us as of right. Further, as long as the aforesaid issues were not determined by the two superior courts, the submissions by the appellant that there were constitutional determinations by the superior courts are merely preemptive.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/36/eng@2023-06-16
Application E005 of 2023,"Cogno Ventures Limited & 4 others v Bia Tosha Distributors Limited & 15 others; Kenya Breweries Limited & 6 others (Interested Parties); Ferran & 24 others (Contemnor) (Application E005, E006 & E012 of 2023 (Consolidated)) [2023] KESC 33 (KLR) (26 May 2023) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",26 May 2023,2023.0,Nairobi,Civil,Cogno Ventures Limited & 4 others v Bia Tosha Distributors Limited & 15 others; Kenya Breweries Limited & 6 others (Interested Parties); Ferran & 24 others (Contemnor),[2023] KESC 33 (KLR)               ,,"""A. Background
1.
On February 17, 2023, the Supreme Court issued a judgment in Bia Tosha Distributors Limited vs Kenya Breweries Limited & 6 others SC Pet 15 of 2020 in the following terms:
'
(134)
Consequently, upon our conclusion, we order that:
i.
The appeal dated August 20, 2020 be and is herebyallowed;
ii.
The judgment and orders of the Court of Appeal in Civil Appeal No 163 of 2016 delivered on the July 10, 2020 be and are hereby set aside in entirety;
iii.
The High Court orders of June 29, 2016 be and are hereby reinstated and the Court do consider the consequences of any disobedience of those orders;
iv.
The matter be and is hereby remitted to the High Court for disposal of the amended petition dated June 20, 2016 pending before the High Court on priority basis; considering the age of this matter;
v.
Costs in the Court of Appeal and in this court are awarded to the appellant as against the 1st and 2nd respondents.'
The court found merit in the appeal paving way for the resumption of the proceedings that had been instituted before the High Court.
2.
As we perceived it, the dispute emanates from commercial agreements between Bia Tosha Distributors Limited ('Bia Tosha') and Kenya Breweries Limited (KBL) and UDV (Kenya) Limited ('UDV') concerning the distribution of KBL’s products. KBL sought to repossess some of the distribution territories previously granted to Bia Tosha and declined to refund goodwill paid by Bia Tosha, on the ground that the amounts were non-refundable. KBL further appointed other distributors to that distribution territory. In reaction to KBL’s measures, Bia Tosha chose to pursue the constitutional path by instituting a petition before the High Court. It also invoked the Competition Act in so far as it affected the exclusivity of the distributorship arrangement.
3.
What escalated to this court on appeal revolved around conservatory orders granted by the High Court regarding constitutional rights violations within the commercial contracts between the parties.
B The Applications
4.
The judgment by this court gave rise to action both before the High Court and now before us by the main disputants, their representatives and third parties. Three applications have been filed before us. Two of them seek a review of the judgment issued on February 17, 2023 while the third one is for committal for contempt for disobeying the said judgment.
a. Application No E005 of 2023
5.
This is an application by Cogno Ventures Limited ('Cogno') dated February 24, 2023 and filed on February 28, 2023 pursuant to sections 3, 21(2) and 24(1) of the Supreme Court Act and rule 28 (5) of the Supreme Court Rules, 2020. It seeks, inter alia, to review, vary and set aside the judgment made on February 17, 2023. It is supported by a supporting affidavit and further affidavit sworn on February 24, 2023 and March 6, 2023 respectively by Shadrack Onyango Oriah; and written submissions dated February 24, 2023 and filed on February 28, 2023;
6.
Cogno faults this court for failing to take into account that the distribution agreements as at February 2, 2006 between Bia Tosha and KBL did not confer exclusive control to Bia Tosha to distribute and sell KBL’s products in the prescribed routes; that the order affects other distributors like the applicant who have non-exclusive distribution agreements with KBL and UDV, to distribute and sell their products on some routes shared with Bia Tosha; and that it stands to suffer enormous loss and damage at an interlocutory stage since the Amended Petition before the High Court is yet to be heard on merit. Besides, that the provisions of section 21(3) of the Competition Act prohibits restrictive trade practices. Thus, there is sufficient grounds for this court to invoke its inherent power and review its orders based on its guiding principles laid down in Parliamentary Service Commission v Martin Wambora & others SC Application No 8 of 2017 [2018] eKLR;
7.
In response, Bia Tosha filed a notice of preliminary objection dated March 3, 2023 and filed on March 6, 2023; additional notice of preliminary objection dated March 4, 2023 and filed on March 6, 2023; replying affidavit sworn by Anne – Marie Burugu on March 3, 2023 and filed on March 6, 2023; and written submissions dated March 3, 2023 and filed on March 6, 2023. Bia Tosha urges that the review application be struck out in limine given that the applicant has approached the High Court and this court seeking conflicting orders that resulted in the High Court injuncting the recognition and application of this court’s judgment. Furthermore, that since Cogno’s submissions were expunged by this court at the hearing of the appeal on May 17, 2022, it was barred from referring to this court; hence, this is a backdoor entry to this court by reproducing applications which KBL and UDV respondents have filed before the High Court to circumvent this court’s Orders that deny the said respondents audience until they purge their contempt before the High Court; that the application is a defiance of this court’s judgment which compounds the disobedience of the orders of this court;
8.
Bia Tosha further argues that Cogno has no legal standing because it was not in existence when the cause of action arose; that Cogno is not a competitor of Bia Tosha or the other distributors of KBL and UDV given that distributors of KBL and UDV do not compete with each other. Accordingly, the application fails the test in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others; SC Petition No 6 of 2014; [2017] eKLR and ought to be dismissed with costs;
9.
KBL, East African Breweries PLC ('EABL') and Diageo PLC ('Diageo') filed a replying affidavit sworn on March 3, 2023 by Nadida Rowlands affirming that KBL did not issue exclusive contracts on any of the routes and more than one distributor could be appointed to serve specific routes; that the KBL was specifically warned by the Competition Authority of Kenya against contracting with exclusivity clauses; and that Cogno and Bia Tosha have over the years been operating as distributors of the KBL on these routes.
10.
UDV filed a replying affidavit sworn on March 3, 2023 by Karen Mate- Gitonga confirming averments made in the applicant’s supporting affidavit with regard to the distribution agreement between UDV and the applicant. It asserts that UDV only filed an application before the High Court in compliance with the directive issued by this court to purge the contempt before they are allowed audience before this court;
11.
Kamahuha Limited’s ('Kamahuha') written submissions dated March 3, 2023 and filed on March 6, 2023 in opposing the application, argue that only KBL and UDV could possibly be aggrieved and thus gain from a review. That filing the application on behalf of the said respondents, amounts to abuse of the court process; that even if the merits of the application were to be addressed, the application has not met the exceptional five circumstances elucidated by this court in the Fredrick Otieno Outa case; that it is not for this court to delve into the minutiae of evidence as to the factual position obtaining either on February 2, 2006 or any other period prior to the grant of Onguto J’s order. Hence, the application should be dismissed with costs;
12.
Four Winds Trading Company Limited ('Four Winds') grounds of opposition dated March 2, 2023 and filed on March 6, 2023 and written submissions dated March 2, 2023 and filed on March 6, 2023 argue that the application is brought in bad faith and is an abuse of the court process as the application falls outside the exceptional circumstances set out in the Fredrick Otieno Outa case (supra). That the grounds of review raised are disguised to have this court sit on appeal over its own judgment and re-litigate the appeal;
b. Application No E006 of 2023
13.
This is an application by Andrew Kilonzo, Jane Karuku and Andrew Cowan (hereinafter the applicants) dated February 27, 2023 and filed on March 2, 2023 pursuant to articles 10(1), 50(1) & (2), 159(2)(d) & (e), 163(3)(b), (4) and (7) and 259(1)(a)(b) and (c) of the Constitution of Kenya 2010, sections 3(a)(b) and (e), 3A, 21A, 20(4) and 23A of the Supreme Court Act, 2011; and rules 3, 31 and 32 of the Supreme Court Rules, 2020. It also seeks to review and set aside the orders of this court’s judgement delivered on February 17, 2023. The application is supported by the supporting affidavit and supplementary affidavit sworn on February 27, 2023 and March 8, 2023 respectively by Andrew Kilonzo; written submissions dated February 27, 2023 and supplementary submissions dated March 9, 2023.
14.
The applicants contend that there is non-disclosure and misrepresentation of facts on the part of the respondent who did not serve the applicants with contempt applications filed at the High Court and Court of Appeal, the orders alleged to have been disobeyed, notice of penal consequences or the petition and pleadings filed before this court. That this is evidenced through the difficulty occasioned on the respondent who sought substituted service by advertisement to serve two of the applicants and non-service of the applicants has been raised at the High Court by some parties and the respondent is yet to respond to the same. That it is this concealment that led to this court in, its judgment at paragraphs 128 and 129, finding KBL and UDV in contempt of orders issued by the High Court on June 29, 2016; and at paragraphs 130 and 131 found the contempt suitable for punishment on a priority basis to be assessed by the High Court. That even though the KBL, UDV, EABL & Diageo herein are the respondents in the contempt application pending before the High Court, the respondent has sought an order for the committal of the applicants to civil jail for six (6) months.
15.
The applicants contend that if this information was available to this court then it would not have arrived at the findings it did. Subsequently, that this court considered a weighty issue with far reaching ramifications without full facts denying the applicants their inalienable right to a fair hearing as guaranteed under article 50 of the Constitution of Kenya, 2010. Therefore, the circumstances of this application are so grave and exceptional that a review is necessary to meet the ends of justice. They cite this court’s decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition (Application) No 4 of 2012 and Fredrick Otieno Outa case (supra).
16.
Bia Tosha filed a notice of preliminary objection dated March 5, 2023 and filed on March 6, 2023; replying affidavit sworn on March 5, 2023 and filed on March 7, 2023 and written submissions dated and filed on March 6, 2023. It opposes the application arguing that there is no jurisdiction to entertain the application since it is brought in defiance of an existing order barring the applicants approaching this court without first purging their contempt; that KBL and UDV having been found guilty of contempt necessarily means that its officers are equally guilty of contempt; therefore, the two companies cannot purport to circumvent their conviction by propping up its senior officers as parties in an application to gain audience before this court.
17.
Bia Tosha asserts that this court’s judgment is plainly clear that it the KBL and UDV parties for disobeying the Court of Appeal status quo order of August 11, 2016; that it did not convict the applicants for their disobedience of the High Court order of June 29, 2016, the applicants have failed to disclose to the court the existence of stay of those contempt proceedings which this court directed the matter be heard, determined and punishment issued against the contemnors. Alternatively, that the applicants having authorized Nadida Rowlands at the Court of Appeal to seek stay of the contempt proceedings which were about to commence before the High Court illustrates that they were aware of the contents of the order;
18.
Further, that the misrepresentation of this court’s judgment is mischievous as it has resulted in Diageo applicants (KBL, UDV, EABL and Diageo) filing applications at the High Court seeking interpretation of this court’s judgment; that similarly, in two matters, they acquiesced to the grant of orders at the High Court compelling them to continue trading with third parties against the judgment of this court; that there is a direct bar against the applicants approaching any court on this matter without first purging their contempt.
19.
Moreover, that in a suit filed by the respondent against Waweru Gatonye, SC, who was their previous lead counsel being defended by the firm of Njoroge Regeru Advocates, who are the applicants advocates herein, amounts to conspiracy to pervert the course of justice given that Waweru Gatonye, SC, would need to share all the relevant confidential information with his lawyers; that this will affect the right of the respondent to receive a fair hearing; and that all things considered the standard of review is not satisfied to demonstrate exceptional circumstances to warrant this court to interrogate its judgment.
20.
KBL, EABL and Diageo’s replying affidavit sworn on March 5, 2023, filed on March 7, 2023 by Nadida Rowlands avers that from the chronology of this matter, the order for stay of the first contempt application filed at the High Court was made by the Court of Appeal on November 9, 2016 which is still in force; that this has resulted in there being two conflicting decisions, one by the Court of Appeal staying the first contempt application and the other by this court directing the High Court to proceed to deal with the same first contempt application; that since advocates did not make any submissions on the merits and or demerits of the two contempt applications when this court heard Petition No 15 of 2020, KBL did not have an opportunity to inform the court of the status of the first contempt application and granted stay; and there is need to safeguard the right to be heard.
21.
UDV’s replying affidavit sworn on March 3, 2023 by Karen Mate– Gitonga argues that since both applications for contempt before the High Court and Court of Appeal were not heard at the time this court was delivering its judgment on February 17, 2023; this court’s holding UDV and Cogno in contempt of court was arrived at from the documents on record without recourse to the parties; as a result, UDV should be allowed to preserve the applicants’ rights under article 50 of the Constitution.
22.
Cogno’s written submissions dated March 4, 2023 and filed on March 14, 2023 support the application. They affirm the grounds raised by the applicants as sufficient for this court to invoke its inherent power and review its judgment since the applicants were not accorded a fair hearing under article 50 of the Constitution. They rely on this court’s decisions in the Fredrick Otieno Outa case, Parliamentary Service Commission Case and the Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly & 10 others) SC Application No 4 (E010) of 2022 (Unreported to support its submissions.
23.
Kamahuha opposes the application through its written submissions dated March 6, 2023 and filed on March 7, 2023. It argues that this court has no jurisdiction under section 21A of the Supreme Court Act or at all as this issue has not percolated through the judicial hierarchy; and given that the High Court has not expressed itself on the merits of the Bia Tosha’s application pending before it, any comment or determination will prejudice the just and fair resolution of those pending applications by the High Court;
24.
Four Winds filed grounds of opposition and written submissions both dated March 5, 2023 and filed on March 7, 2023. It contends that the applicants have failed to establish any exceptional circumstances that would warrant this court to review its judgement as was set in the Fredrick Otieno Outa case; that the applicants hold senior positions in the 4th and 5th interested party companies or companies affiliated with the EABL who have always been represented in these proceedings and, therefore, information has always been available to them. Further, that they authorized an official of the KBL and UDV to respond to the contempt application dated August 23, 2016 on their behalf. Relying on the Court of Appeal decision in Shimmers Plaza Limited v National Bank of Kenya [2015] eKLR Four Winds states that jurisprudence has developed beyond necessity of personal service of penal notices and orders to knowledge of the orders. And that the applicants must have been aware of the contempt proceedings.
""","C. Determination
36.
The centrality of the judgment of this court made on February 17, 2023 has necessitated a consolidated determination of these three applications. From our perusal of the applications and the positions adopted by the parties, we can sum up the issues arising for our disposal as follows:
a.
The competency of the respective applications;
b.
Whether to review, vary and /or set aside our judgment made on February 17, 2023 and if so in what manner;
c.
Whether the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th respondents/contemnors are in contempt of the judgment and order of this honourable court dated February 17, 2023 and if so the appropriate punishment and /or consequences for such contempt;
d.
Whether to strike out Nairobi High Court Civil Suit No Comm Misc E127 of 2023 – Ngong Matanyok Wholesalers Limited & another v Kenya Breweries Limited & another and Nairobi High Court Civil Suit No Comm E075 of 2023 – Tony West & another Limited & Another vs Kenya Breweries Limited & another;
37.
Before delving into the identified issues, we note that there was a prayer in Application No E012 of 2023 seeking stay of Application Nos E005 and E006 of 2023 pending the determination of the said Application No 12 of 2023. However, preliminary objections have also been raised challenging the sustainability of Application No E012 of 2023. As already noted, the manner in which the court has opted to dispose the applications and the attendant need for prudent use of judicial time and resources, this prayer is best subsumed in the substantive determination. In the same manner, the preliminary objections raised in each of the applications are addressed in the course of disposal of the respective issues.
38.
It emerges that the parties either misunderstood our judgment rendered on February 17, 2023 or are outrightly mischievous. Having authoritatively made our decision on the issues before us in Petition No 15 of 2020, it was this court’s expectation that all parties thereto, would act in accordance with what the court meant. It is not for this court to interpret its decisions or those of other courts to the different litigants. With the issuance of the judgment, the court became functus officio. The only narrow opportunity for the court’s jurisdiction is by way of review vide an application as permitted by the Supreme Court Act and Rules.
39.
However, to the extent that there is need to avert protracted legal battles, more so when the substantive dispute is pending at the High Court, we shall invoke the inherent powers of this court to determine whether there is any matter for clarification and if so, to what extent we can exercise the power of review as sought in the two applications or deal with contempt as raised in the third application. In doing so, we echo our determination in the ruling rendered on October 17, 2017 in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission Chairman (IEBC) & another SC Election Petition No 1 of 2017; [2017] eKLR where we stated as follows:
'
(58)
In exercise of the inherent powers of this court, we shall therefore proceed to determine whether there is any matter to be clarified, and if so, to what extent. This assumption of jurisdiction, is all the more necessary, so as to avert the danger of an impression being created in the mind of the public, that there exists an ambiguity, in the court’s Judgment, even where there might be none. If indeed there is an ambiguity, the assumption of jurisdiction will help eliminate the same.'
40.
Similarly, in John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others SC Petitions Nos 2 and 4 of 2017; [2017] eKLR, we found it necessary to clarify certain aspects of our judgment by stating as follows:
'[266] These two paragraphs have assumed judicial prominence since the nullification of the Presidential election of August 8, 2017 by this court. Not only have they been subject to contradictory interpretations by parties to the petitions before us, they have also elicited varying 'expert' comment from many quarters.'
41.
The apparent point of misunderstanding of our judgment is the import of paragraphs 128 to 131 and in particular, the finding of contempt and the consequences thereof. For context, the appeal before us was against the decision of the Court of Appeal, not a direct appeal against the High Court ruling. Part of the grounds of appeal, which we eventually agreed on with Bia Tosha was that the application for contempt of the status quo orders was undetermined by the Court of Appeal. It is this contempt application that we proceeded to determine. In doing so, we, however, appreciated that this is a factual contest and that no responses were filed or considered by the Court of Appeal, as the application was neither heard nor determined, the court opting, instead, to deal with the merits of the appeal. We were limited to what was before us, cautioning ourselves that the main dispute among the parties was still live at the High Court. At the same time, it was not lost to us that there was a contempt application pending before the High Court in which responses had been filed. We stated as much.
42.
In our judgment, we were emphatic that the place of contempt proceedings in the administration of justice cannot be downplayed. It is on this basis that we remitted the matter back to the High Court which is seized of the issue to contemporaneously address the contempt application on merit, in view of our findings on contempt. We left it to the High Court, to, not only establish what the status quo was but also punish for contempt, and expect the same to be purged before the contemnors could be allowed audience, in the event that the High Court was satisfied of the nature and extent of the contempt. A perusal of the final orders issued reminisces our deliberate intention to allow the High Court the liberty to address any disobedience, without falling into the same error as the Court of Appeal, of procrastinating such a serious matter of disobedience of court orders. We therefore see no reason to infringe, at this stage, on the High Court’s jurisdiction to competently address the issues before it.
43.
With the backdrop of the above position, we now proceed to address the issues as we framed them.
Competency of the respective applications.
44.
Each of the applications filed has come under attack on the dual issues of competency and on the merits. It is therefore incumbent upon us to determine whether each of the applications can surmount the respective challenges.
45.
In regard to Application No E005 of 2023 – Cogno Ventures Limited v Bia Tosha Distributors Limited & 6 others and Application No E006 of 2023– Andrew Kilonzo & 2 others vs Bia Tosha Distributors & 7 Interested Parties, the main argument proffered for their striking out is that the applicants are in contempt of this court’s proceedings and ought to purge their contempt before being granted audience. In addition, Bia Tosha urges that since the submissions by Cogno were struck out at the hearing, it no longer enjoys standing before court. Additionally, that Andrew Kilonzo, Jane Karuku and Andrew Cowan, having not been direct parties to the matter and the appeal before the Supreme Court lack standing to file an application.
46.
In Application No E005 of 2023, Cogno is a party having joined before the High Court as an interested party. In Petition No 15 of 2020, Cogno was a substantive respondent who had participated in the appeal, save for late filing of submissions which prompted our striking their submissions out of the record. We did not strike out Cogno as a party to the appeal. It is therefore within its liberties to invoke this court’s jurisdiction to seek review. However, we note that it has instead invoked sections 3, 21(2) and 24(1) of the Supreme Court Act and rule 28(5) which do not readily come to its aid.
47.
Section 3 of the Supreme Court Act sets out the objective of the court and cannot, on its own, form the basis of invoking our jurisdiction. Our jurisdiction is operationalized by a substantive provision. Section 21(2) of the Supreme Court Act grants general powers in any proceedings to make any ancillary or interlocutory orders, including any orders as to costs that it thinks fit to award. Section 24 of the Supreme Court Act on the other hand deals with interlocutory directions. It is therefore surprising that the applicant has not invoked the appropriate statutory provisions in seeking to review the court’s decision.
48.
Having said that, it matters not in our considered view, whether the application was brought by Cogno or by EABL or KBL. The application for review is to be considered on its merits once filed by a party to the decision sought to be reviewed.
49.
Turning to Application No E006 of 2023, brought by Andrew Kilonzo, Jane Karuku and Andrew Cowan, it is a no brainer that they were not parties to the Petition No 15 of 2020 or the resulting judgment sought to be reviewed. To the extent that they have, inter alia, sought a review of our decision under section 21A of the Supreme Court Act, it behoves us to satisfy ourselves as to their capacity to file the application. Section 21A provides:
'
21A. Review of own decision
The Supreme Court may review its own decision, either on its own motion, or upon application by a party in any of the following circumstances.'
50.
The word 'a party' for purposes of an appeal to the Supreme Court presupposes one whose locus standi is not in issue, either as an appellant, respondent, interested party or amicus curiae. In the circumstances, the standing of the three individuals, appearing individually, regardless of their status in any of the corporate litigants in the proceedings before us is something that can only be addressed in a substantive suit and not through an application of this nature. In saying so, we echo the position taken by Lenaola SCJ in Kanjama v Attorney General & 82 others Petition E017 of 2021) [2022] KESC 11 (KLR) (19 May 2022) (Ruling as follows:
'
(3)
b.
The applicant is also seeking a determination of issues regarding who may file an appeal to this court generally and the issue of whether the Deputy Registrar should always communicate reasons for rejecting an appeal and how that communication should be made. It is my finding that such matters relate to substantive issues which cannot be decided in an otherwise straight forward interlocutory application seeking an order of review.'
It matters not, in our view, that they consider themselves personally affected by the decision or that they are principals of any of the corporate parties before us.
51.
Application No E012 of 2023 by Bia Tosha is also under challenge. Like Cogno, they are entitled to approach this court, having been parties to the appeal that resulted in the judgment that it now seeks to have the court mete out punishment for disobedience of by way of contempt of court proceedings. However, the extent of what they can seek before the court under the circumstance can only be addressed when dealing with the specific prayers sought in their application. We note that Bia Tosha in this application primarily seeks to enforce this court’s orders, something that we shall address at the opportune moment.
52.
It has also not escaped our attention that the matter before us in Petition No 15 of 2020 had a total of eight litigants. This application has dropped two of the litigants namely Kamahuha and Four Winds by unilaterally relegating them to interested parties and at the same time expanded the respondents to twelve by introducing Matonyok, Manara Limited, Tony West Limited, Outlook, Jane Karuku, Andrew Kilonzo and Andrew Cowan as respondents/ contemnors. It has gone further to introduce twenty-five individuals who are termed as contemnors. This restructuring of litigants, in our view, stands on all fours with what Bia Tosha complained of against Application No E006 of 2023. Introducing parties to this court at the first instance in an application of this nature is untenable in law.
53.
On the basis of the correct parties to the respective applications as permitted under our rules, only Application No E005 of 2023 meets the threshold. Application No E006 of 2023 has to be and is hereby struck out. Similarly, Application No E012 of 2023 is struck out to the extent that the parties introduced for the first time through the application have to be and are hereby struck out. All the pleadings filed by and on behalf of such parties that have been struck out from the proceedings have to suffer the same fate and are hereby struck out. Only the original litigants can process the application.
Whether to strike out Nairobi High Court Civil Suit No Comm Misc E127 of 2023 – Ngong Matanyok Wholesalers Limited & another v Kenya Breweries Limited & another and Nairobi High Court Civil Suit No Comm E075 of 2023 – Tony West & another Limited & another vs Kenya Breweries Limited & another
54.
The main grievance by Bia Tosha in this regard is that the said suits before the High Court are premised on contract allegedly granted to the plaintiffs therein in contravention of the Court of Appeal status quo order and the reinstated High Court order of June 29, 2016. Further, that the said suits purport to supervise the jurisdiction and judgment of the Supreme Court of Kenya herein, and violate the provisions of article 163(7) of the Constitution of Kenya, 2010 on the binding nature of the decisions of the Supreme Court to the lower courts. It is faulted by the 8th and 9th respondents who have raised an objection on the grounds that the High Court cannot concurrently be seized of the same matter for the applicant who seeks to join proceedings in Civil Suit No E075 of 2023; Tony West Limited & another v Kenya Breweries Ltd & another seeking the High Court to discharge its orders issued on March 6, 2023 while in this application the applicant seeks this court to strike out the High Court orders.
55.
In view of our finding by which we struck out all the parties that were not part of Petition No 15 of 2020, the prayer to strike out High Court proceedings remains superfluous. In any event, this court is not seized of matters that are pending before the High Court, another competent forum under our constitutional architecture. This being an appellate apex court, such decisions of superior courts below can only ascend through the litigation hierarchy to this court subject to satisfying our narrow jurisdictional threshold and not in the manner proposed by the applicant. We think we have said enough on this issue.
c.
Whether to review, vary and/or set aside our judgment made on February 17, 2023 and if so in what manner
56.
The authority of this court to review its own decision was set out in Fredrick Otieno Outa case wherein, we found that as a general rule, this court has neither jurisdiction to sit on appeal over its own decisions nor to review its decisions other than in the manner enunciated therein. This is now codified by section 21A of the Supreme Court Act. The circumstances under which this court may review its own decision, either on its own motion, or upon application by a party accrues in any of the following conditions, that is where:
a.
The judgment, ruling or order is obtained through fraud, deceit or misrepresentation of facts;
b.
The judgment, ruling or order is a nullity by virtue of being made by a court which was not competent;
c.
The court was misled into giving judgment, ruling or order under the belief that the parties have consented; and
d.
The judgment, ruling or order was rendered on the basis of repealed law or as a result of a deliberate concealment of a statutory provision.
57.
Based on our earlier finding hereinabove, we are only left with the review prayer in Application No E005 of 2023. The applicant’s ground for the application is that this court fell into error in failing to consider other distribution agreements entered into by the 2nd and 3rd respondents when reinstating the status quo orders of June 29, 2016.
58.
At the onset, the applicant seeks that we 'review, vary and set aside the judgment', without proposing the exact nature and extent of review, variation or setting aside of our judgment of February 17, 2023. With respect to Cogno, this court did not make any new orders in regard to the High Court ones of June 29, 2016 beyond what had been issued by the High Court, the basis for the appeal. The only logical consequence upon setting aside the Court of Appeal judgment was to reinstate the orders as had been issued by the High Court, which we did and no more. The said orders issued by the High Court were made following inter partes hearing in which Cogno had participated as an interested party.
59.
The applicant does not point us to the specific conditions enumerated under section 21A of the Supreme Court Act upon which it grounds its application. As rightly noted, the amended petition before the High Court is still pending. The issues of non-exclusive distribution agreements and restrictive trade practices under section 21(3) of the Competition Act or whatever else is pending thereat are things that can only be articulated at the High Court, for a determination based on a factual contest and evidence. These issues were not before us on appeal as we were constricted in determining whether the dispute, based on the conservatory orders issued by the High Court, should be determined by the High Court as the constitutional court or by an Arbitrator as a commercial contract.
60.
A cursory perusal of the orders of the High Court, now reinstated, reveals that any and all contested issues of exclusivity are the purview of the High Court where the matter still pending in a full hearing. We perceive Cogno’s argument to be an invitation to revisit a highly contested factual finding as to the position obtaining at the time of issuance of the High Court orders. We have to decline that invitation at the earliest as it would result in our exercising a jurisdiction we lack, that to appeal or relitigate the questions which this court has settled with finality. (see Senate of Kenya & 3 others v Speaker of the National Assembly & 10 others (applicants’)Application 7 (E013) of 2022) [2023] KESC 1 (KLR) (January 18, 2023) (Ruling) .
61.
It has not been demonstrated by the applicant to our satisfaction that the impugned ruling was obtained by fraud or deceit, is a nullity, or that the court was misled into giving its ruling on review under a mistaken belief that the parties had consented. The application fails the dictates of section 21A and the principles in Fredrick Otieno Outa case and is ripe for dismissal.
62.
We are also not available to address ourselves to the potential conflicting orders as urged by Bia Tosha. We can only determine what is before us and the parties are at liberty to pursue their rights before the High Court to avert any arising conflicting decisions, as it deals with the factual contests.
d)
Whether the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th respondents/contemnors are in contempt of the judgment and order of this honourable court dated February 17, 2023 and if so the appropriate punishment and /or consequences for such conviction
63.
The 6th to 9th respondents having been struck out from the proceedings, leaves the consideration of the prayers against the 1st to 5th respondents. The application is based on section 28(4) and (6) of the Supreme Court Act. Section 28(4) of the Act grants this court the power and authority similar to that bestowed upon the High Court, to punish for contempt. The competence of this court to punish for contempt was affirmed in our ruling made on March 15, 2019 in Republic v Ahmad Abolfathi Mohammed & another SC Petition No 39 of 2018; [2019] eKLR as follows:
'
(27)
We have taken note that the functioning of the reparatory aspect of the Contempt of Court Act (s 24A), at the moment, and with regard to the operations of the High Court and the Court of Appeal, admits of uncertainty quite apart from the fact that we are not applying them here but we affirm such not to be the case as regards the Supreme Court’s competence, which is founded upon the Supreme Court Act, 2011 (Act No 7 of 2011), Section 28(1), (3), (4) and (5).'
64.
The starting point is to first determine whether there was contempt of our court orders. Our final orders were very specific in so far as we remitted the matter back to the High Court which was directed to deal with consequences of any disobedience of the orders. To rehash, we directed that:
'(iv). The High Court orders of June 29, 2016 be and are hereby reinstated and the court do consider the consequences of any disobedience of those orders.'
In reinstating the orders of June 29, 2016, we were mindful that the High Court contempt application is still pending determination and it is only proper that it be allowed to proceed with it to its logical conclusion. The allegations of non- disclosure, concealment and misrepresentation of facts is best dealt with by the High Court in line with the directive of this court as it is a question of fact and evidence.
65.
Our above order was informed by various factors. The first and paramount consideration was that, our judgment was final and not in the nature of a structural interdict. This is to say, once we delivered the judgment, we became functus officio and nothing was expected of us in terms of supervised compliance with any of the orders. Secondly, we invoked section 22 of the Supreme Court Act to remit the proceedings to the High Court which has jurisdiction to deal with the matter. As already noted in section 28 of the Supreme Court Act, the High Court has similar powers to those of this court to deal with the issue of contempt including punishment. Thirdly, we held that this court does not have supervisory jurisdiction over subordinate courts below. In our words:
'
(79)
This is because, unlike the High Court which has express supervisory jurisdiction over the subordinate courts, we do not, under the existing constitutional structure, enjoy similar powers over other superior courts. This is notwithstanding the apex nature that the court is placed under the Constitution and our decisions being binding under the doctrine of stare decisis.'
Finally, but importantly, the decisions of this court are enforced by the High Court. Section 27 of the Supreme Court Act provides:
'
27.
Decisions of the court may be enforced by the High Court.
A judgment, decree, or order of the Supreme Court may be enforced by the High Court as if it had been given or made by the High Court.The Supreme Court may also, under section 22 of the Supreme Court Act, remit proceedings that began in a court or tribunal to any court that has jurisdiction to deal with the matter.'
In this regard, it is not the first time that the High Court is being called upon to enforce the orders of this court. In David Pkosing v National Super Alliance & 13 others [2017] eKLR, Mwita J stated:
'55. I must admit however, that this court has power to enforce decisions of the Supreme Court. Section 27 of the Supreme Court Act (No 7) of 2011 provides that a judgment, decree, or order of the Supreme Court may be enforced by the High Court as if it had been given or made by the High Court. For this to happen, there must be a judgment or decree capable of being enforced if this court were to call into operation section 27 of the Supreme Court Act.'
In John Harun Mwau case (supra) we also noted an instance where we had declined to assume jurisdiction over a matter relating to our earlier judgment in Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others(JudgmentPetition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 6 (KLR) (April 16, 2013) . We observed:
'
(193)
This court declined to hear the matter on the basis that it had no jurisdiction, directing the deponent to the High Court. In the High Court, Mativo J rendered a decision in Ekuru Aukot v Independent Electoral & Boundaries Commission & 3 others [2017] eKLR, the effect of which was to order the inclusion of the deponent, as well as all the candidates who had participated in the August 8, 2017 elections, if they had not formally withdrawn.'
66.
In our view, the applicant is not seeking a review of our decision but rather, attempting to enforce our orders as it understood them. This is untenable. Our jurisdiction over such a matter can only arise in the course of proceedings before judgment is issued. In this instance, the matter is already concluded and any attempt to argue the present application can only be through a separate appeal being presented before us, taking into account our jurisdiction and other imponderables. This, just like in the David Pkosing case (supra) is not the case for our assumption of jurisdiction, more so, not in a manner where the non-compliance remains highly disputed.
67.
Furthermore, a finding that results in the potential deprivation of personal liberty by way of civil jail should leave the parties with an avenue for appeal in the event either of them is dissatisfied. Undertaking such an exercise at the appellate and final stage of the litigation process before the apex court does not augur well for the right to access justice including, exhaustion of appellate mechanisms. For these reasons, this application should, for this reason, fail and it so fails.
68.
The award of costs is discretionary. As determined by this court in Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR, costs follow the event. However, since the substantive matter is still live before the High Court, we order that costs shall abide the outcome of the proceedings now pending before the High Court.
69.
In the result, and having remitted the dispute to the High Court, we reiterate that the parties are at liberty to raise all their issues for determination by the High Court, which is competently seized of the dispute.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/33/eng@2023-05-26
Petition 17 (E021) of 2022,Mohammed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) v Rai Plywood (K) Limited & 5 others (Petition 17 (E021) of 2022) [2023] KESC 34 (KLR) (26 May 2023) (Ruling),Ruling,Supreme Court,Supreme Court,MK Ibrahim,26 May 2023,2023.0,Nairobi,Civil,Mohammed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) v Rai Plywood (K) Limited & 5 others ,[2023] KESC 34 (KLR)               ,,"Brief facts
The instant matter emanated from two interrelated appeals in which the Deputy Registrar of the Supreme Court had directed the parties to file submissions. The 3rd respondent contended that they were unable to comply with the directions of the Deputy Registrar for filing of submissions as they considered it imperative in the determination of the two interrelated appeals to first file an application to adduce more evidence. Subsequently the Deputy Registrar barred the 3rd respondent from filing submissions. Aggrieved the 3rd respondent filed the instant application to review and discharge the decision of the Supreme Court Registrar requiring the filing of submissions. 
Issues
What considerations should a court’s registrar make in imposing sanctions against a party who failed to comply with the registrar’s directions?
Whether the actions of the 3rd respondent to not file submissions in compliance with the registrar’s directions on grounds that they had sought leave to file an application to adduce more evidence that would be relevant in the submissions was contemptuous.
","Upon perusing the notice of motion by the 3rd respondent dated January 27, 2023 and filed on February 3, 2023, anchored on section 31, 32, 33 of the Supreme Court (General) Practice Directions, 2020 as read together with rules 6 (2), (3), 31 & 32 of the Supreme Court Rules, 2020 seeking the following orders:
a.
The court be pleased to review and discharge the decision of the Honorable Registrar issued on January 13, 2023 barring the 3rd respondent/ applicant from filing submissions in the two interrelated appeals both emanating from the impugned judgement of the Court of Appeal.
b.
The 3rd respondent/applicant be allowed to file submissions in the two interrelated appeal both emanating from the impugned judgement of the Court of Appeal upon determination of the application dated January 13, 2023 seeking to adduce further evidence.
c.
The costs of the application be in the cause.
2.
Upon considering the grounds on the face of the application and the supporting affidavit sworn on January 24, 2023 by David K Chelugui, the legal representative of the estate of the 3rd respondent, contending that they were unable to comply with the directions of the Deputy Registrar for filing of submissions as they considered it imperative in the determination of the two interrelated appeals to first file an application dated January 13, 2023 seeking to adduce further evidence before filing submissions, which needed to be determined first. Further, that despite that clarification, the Hon Deputy Registrar barred them from filing their submission in the two interrelated appeals; that this was despite the Hon Deputy Registrar giving directions for the disposal of their application dated January 13, 2023 seeking to adduce additional evidence, which outcome would affect their submissions; that the Hon. Deputy Registrar’s decision subverts the 3rd respondents’ right to fair hearing enshrined in article 50(1) of the Constitution, their equality before the law under article 27 of the Constitution and breaches the court’s duty to among other things protect and promote the rights of every party before it pursuant to article 21 of the Constitution. Additionally, that the 3rd respondent is a key party to the proceedings, defending its right to property with about one billion Kenya Shillings at stake, thus barring them from filing submissions would result in an unfair and unjust determination of the appeals; and
3.
Upon perusing the 3rd respondent’s written submissions dated January 27, 2023 and filed on February 3, 2023 wherein in addition to the grounds in the application, it is contended that the decision of the Hon Deputy Registrar barring the 3rd respondent from filing submissions would be to give all of its opponents a platform while denying them a chance to present their side of the story; that the non-compliance was not out of negligence, ignorance or disobedience, rather abundant caution to adduce additional evidence that would fortify the 3rd respondent’s position that the decisions of the lower courts were correct. They rely on the decisions in Judicial Service Commission v Gladys Boss Shollei & Another Civil Appeal No 50 of 2014; [2014] eKLR, Justice Amraphael Mbogholi Msagha v Chief Justice of the Republic of Kenya & 7 Others Nairobi HCMCA No 1062 of 2004; [2006] eKLR, Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2015] eKLR, to urge that the decision by the Deputy Registrar goes against the principles of natural justice, violate the 3rd respondent’s right to fair hearing as enshrined under article 50 (1), as well as violate their right to access justice pursuant to article 48 and the right to equal benefit of the law as espoused under article 27 (1). They cite Okiya Omtatah Okoiti v Attorney General & Another, SC Application No 1 of 2019; [2019] eKLR to urge the need for judicial officers to ensure due process of the law is followed while having due regard for the affected parties’ interests and consequences of their decisions.
4.
Upon considering the petitioner’s replying affidavit dated February 10, 2023 sworn by the petitioner averring that from the chronology of the events, the same demonstrated that the 3rd respondent not only chose to disrespect this court but also willfully disobeyed the orders and directions of the court; that the filing of the application to adduce additional evidence did not vary or defeat the mandatory orders of this court concerning the filing of written submissions; that the 3rd respondent invokes the constitutional safeguards on fair trial but he conveniently ignores the fundamental obligation of every party to aid in the dispensation of justice by complying with the orders and directions issued by the court in furtherance of an expeditious disposal of matters; and that the use of coarse language and choice epithets hurled at the Deputy Registrar for performing the judicial duties not only threatened the integrity and judicial authority of this apex court but also engenders the malaise of anarchy and brazen impunity in the administration of justice.
5.
Upon perusing the petitioner’s written submissions dated February 10, 2023 and filed on February 15, 2023 wherein relying on the Supreme Court of India in TN Godavarman Thirumulpad via the Amicus Curiae v Ashok Khot & Ane AIR 2006 SC 2007 and Wildlife Lodges Ltd v County Council of Narok & Anor [2005] 2 EA 344 (HCK) it is urged that compliance with court orders is not a discretional matter, neither is it a favour to be doled out to the Judiciary; rather, it is a crucial matter of constitutional and civic obligation. Further, that this court’s discretion should be exercised judiciously and cannot avail when a party is contumeliously acting in defiance and that the circumstances of the Okiya Omtatah Okoiti case (supra) are entirely different from those of the present case submitting that the Deputy Registrar’s decision in this instant case cannot be said to be unreasonable and arbitrary.
6.
The 1st respondent resolved to resonate with the reply and submissions made by the petitioner. the 4th to 6th respondents never made any response to the application.
I now pronounce as follows, bearing in mind all these submissions:
7.
Appreciating the role of a Registrar to impose sanctions or orders costs against a party who fails to comply with the directions of the court pursuant to section 10 of the Supreme Court Act and rule 6(1)(c) of the Supreme Court Rules, 2020 and this court’s authority to review the decision of the Registrar under section 11 of the Supreme Court Act as read with rule 6(2) of the Supreme Court Rules 2020.
8.
Restating the principles in Okiya Omtatah Okoiti (supra) where this court expressed itself that prudence and precaution must be observed to ensure that the reasons proffered by the Deputy Registrar would clearly and specifically distinguish a decision on the merits of the pleadings as opposed to mere administrative action. A decision in which the law and rules are merely restated without justification may result in injustice.
9.
Similarly, restating this court’s decision in Odinga & 7 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 1 (KLR) while addressing itself on discretion to extend timelines stated:
“
It may be argued that the Supreme Court ought to apply the principle of substantial justice, rather than technicalities, particularly in a petition relating to Presidential election, which is a matter of great national interest and public importance. However, each case must be considered within the context of its peculiar circumstances. Also, the exercise of such discretion must be made sparingly, as the law and Rules relating to the Constitution, implemented by the Supreme Court, must be taken with seriousness and the appropriate solemnity. The Rules and time – lines established are made with special and unique considerations.” (Emphasis provided).
10.
Noting from the record that directions to filing of submissions to the petition were first issued on August 1, 2022. The petitioner filed its submissions to the petition on October 27, 2022. On October 28, 2022, the respondents were directed to file their Submissions. As at December 2, 2022 only the 4th and 5th respondents had filed their submissions. On December 2, 2022 the 3rd respondent sought leave to finalize its submissions and prayed for leave to file an application to adduce more evidence. On January 13, 2023 the 3rd respondent had only filed the application seeking to adduce further evidence, noting that they would first await the determination of the application prior to filing its submissions.
11.
Accordingly, this court finds that the 3rd respondents actions were not in any way contemptuous. It is my considered view that the reasons afforded by the 3rd respondent are cogent and valid. It is fair and reasonable for the application to adduce further evidence be heard and determined first before the 3rd respondent files its submissions in the two interrelated appeals both emanating from the impugned judgement of the Court of Appeal.
12.
For the aforestated reasons I come to the conclusion that the 3rd respondent’s application dated January 27, 2023 has merit.
13.
Consequently, I make the following orders:
a.
The court hereby reviews and discharges the decision of the Honorable Deputy Registrar issued on January 13, 2023 barring the 3rd respondent/ applicant from filing submissions in the two interrelated appeals both emanating from the impugned judgement of the Court of Appeal.
b.
The 3rd respondent/applicant be and is hereby allowed to file submissions in the two interrelated appeal both emanating from the impugned judgement of the Court of Appeal upon determination of the application dated January 13, 2023 seeking to adduce further evidence.
c.
Costs to be in the appeal herein.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/34/eng@2023-05-26
Petition 8 (E010) of 2021,Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",21 April 2023,2023.0,Nairobi,Civil,Dina Management Limited v County Government of Mombasa & 5 others,[2023] KESC 30 (KLR)               ,,"A. Introduction and Background
1.
The appellant, Dina Management Limited, vide the petition of appeal dated 1July 5, 2021 challenges the decision of the Court of Appeal in Civil Appeal No 150 of 2021 which affirmed the judgment of the Environment and Land Court (A Omollo J) in ELC Petition No 8 of 2017 consolidated with Petition No 12 of 2017. The appeal invokes article 163(4)(a) of the Constitution, sections 15(2), 21(1) and (3) of the Supreme Court Act, No 7 of 2011 and rules 12, 38 and 39 of the Supreme Court Rules, 2020.
2.
The genesis of the appellant’s grievance is that on various dates in September, 2017, the 1st respondent, County Government of Mombasa, without prior notice forcefully entered the property known as MN/1/6053 situated in Nyali Beach, Mombasa County, registered to the appellant (hereinafter ‘the suit property’) demolished the entire perimeter wall facing the beachfront and flattened the whole property to be at the same level as the beach. It was urged by the 1st respondent that the entry and demolition was an enforcement action to create a thoroughfare to the beach as the suit property was public land and not private.
3.
Prior to the filing of the above petition, a suit had been filed and determined in favour of the appellant in HCCC No 131 of 2011, Elizabeth Karangari Githunguri v Dina Management Limited (HCCC No 131 of 2011) which the appellant avers, settled the issues concerning the ownership and validity of title over the suit property and had conclusively addressed the issue whether there was a public road through the said property.
B. Litigation History
(i) Proceedings at the Environment and Land Court
4.
Aggrieved by the 1st respondent’s actions, the appellant filed Environment and Land Court Petition No 8 of 2017 (ELC Petition No 8 of 2017) dated September 27, 2017 against the 1st respondent. The appellant sought a total of fifteen orders, asserting its ownership to the suit property. Among the orders sought were declarations that the 1st respondent’s actions were in violation of its rights under article 40, 27(1) & (2), 29, 47(1) & (2) of the Constitution; a permanent injunction against the 1st respondent to restrain it from interfering with the suit property; the 1st respondent be compelled to meet the costs of its actions assessed at Kshs 10,102,774.08; compensation for malicious damage to property; damages for trespass, interest and costs of the petition.
5.
The 1st respondent filed a separate petition, ELC Petition No 12 of 2017 dated November 15, 2017 against the appellant and the 2nd – 6th respondents wherein it sought declarations that the suit property is public land forming part of the beach property within the high and low water marks of the Indian Ocean; that the subsequent acquisition by the appellant was from inception null and void ab initio; an order that the Chief Land Registrar be compelled to revoke the title over the suit property and the Director Surveys to cancel and expunge all survey plans, computations, field notes, deed plans and survey records over the suit property including an order for the eviction of the appellant from the suit property, general damages for trespass and costs.
6.
The appellant opposed the 1st respondent’s petition on the grounds that the suit property was previously unalienated government land which was lawfully alienated as private property in 1989; that the suit property was 30 meters above the high water mark as per the law at the time of alienation and regulation 110 of the Survey Regulations 1994 which established that all land within the 60 meters from the high watermark was public land was not in force at the time; that no evidence was presented to support the assertion that the suit property was a road reserve; that the suit was time barred as allocation was done close to 30 years from the date the suit was filed; that the appellant was not guilty of any illegalities or irregularities; and that the suit was res judicata as the subject matter was determined by Mukunya J in HCCC, No 131 of 2011.
7.
The 2nd-6th respondents on the other hand urged that the suit property was initially an open space and the alienation of the suit property to HE Daniel Arap Moi was lawful and all procedures followed, however the letter of application to the Commissioner of Lands seeking to be allocated the suit land and the Part Development Plan (PDP) showing the suit property in relation to the neighbouring parcels of land were missing.
8.
The two petitions, ELC Petition No 8 and 12 of 2017, were consolidated by consent of the parties and proceeded to hearing by way of affidavit evidence. The court framed the issues for determination as; whether the suit property was a public utility and there was a public access road through it to the beach; whether the suit property was within 60 metres of the high water mark; were illegalities or faults committed by those responsible for alienating the suit property and whether the appellant should suffer the faults of those third parties (if any); whether the 1st respondent’s suit is res judicata and/or an abuse of court process; whether the suit was time barred and/or the 1st respondent guilty of latches and indolence; and whether the appellant was the lawful owner of the suit property and entitled to the orders sought. In a judgment dated 10th September, 2019 the trial court dismissed the appellant’s petition and partially allowed the 1st respondent’s petition.
9.
The trial court determined that: the alienation of the suit property was unprocedural and unlawful for lack of an approved PDP from the Director of Physical Planning and Central/Regional Authority in compliance with the provisions of the Land Planning Act, cap 303 (repealed by the Physical Planning Act cap 286); there existed an access road through the open space to the sea, which was later blocked by the allotment of the suit property in disregard of the provisions of section 85 of the Government Lands Act (repealed) (hereinafter referred to as “GLA”); the 1st respondent acted within the law in removing the wall which blocked the said access road; the 1994 regulations relied on by the 1st respondent to urge that the suit land was within 60 meters from the high-water mark were not in operation in September 1989 when the property was alienated; the 1st respondent’s suit was not res judicata; the 1st respondent’s suit was not time barred as it related to constitutional violations of a continuing nature; the appellant could not be protected as an innocent purchaser without notice as it failed to demonstrate that it was diligent before purchasing the suit property; and the appellant’s rights were not violated and it was not entitled to the reliefs sought.
(ii) Proceedings at the Court of Appeal
10.
Aggrieved by the judgment, the appellant moved the Court of Appeal vide Civil Appeal No 150 of 2019 premised on a total of 22 grounds of appeal. The 2nd to 6th respondents filed a cross appeal challenging the court’s jurisdiction on the grounds that the dispute between the County Government of Mombasa and the National Government, to wit, Ministry of Lands and Physical Planning, the Chief Land Registrar, the Land Registrar, the Director of Survey, and the Director Physical Planning was inter-governmental in nature and hence contrary to articles 6, 159(c) and 189(3) and (4) of the Constitution as read with Sections 30 to 35 of the Inter-Governmental Relations Act No 2 of 2012 (hereinafter IGR Act).
11.
The 1st respondent filed a notice of grounds for affirming the decision and urged that the suit property was trust land, and such land was not government land available for alienation and any alienation thereof contravened section 117 of the repealed Constitution, section 13 of the Trust Land and section 82 of the Government Lands Act (repealed).
12.
The appellate court framed seven issues for determination. On the first issue, the appellate court held that the appeal did not relate to an inter-governmental dispute. This is because the mere introduction of the 2nd to 6th respondents by the 1st respondent to the suit could not convert the dispute into an intergovernmental dispute as the ultimate objective of the dispute was to determine the status of the suit property as against the appellant who had moved the court to assert its ownership, the appellant not being a party to any of the levels of government.
13.
On the second issue, the appellate court found that the claim of res judicata was devoid of merit as the matter before it went to the root of the ownership of the title. On whether the dispute was statute barred under the Limitation of Actions Act it was held that since the suit was framed as a constitutional petition seeking to enforce fundamental rights and freedoms which violations were of a continuing nature, the doctrine of limitations did not apply. Further, that sections 41 and 42 of the Limitation of Actions Act excludes application of the Act on matters concerning government land, including proceedings towards recovery of government land.
14.
On the nature of the suit property including the road, the court held that it was not trust land, but an open space and the applicable law when the purported alienation took place is the GLA, thus under the realm of the 2nd to 6th respondents. The suit property being within the municipality of Mombasa, the land was to be allotted in accordance with section 10 of the GLA, which is to the effect that “Leases of town plots may be granted for any term not exceeding one hundred years.”
15.
On whether the title to the suit property was lawfully acquired and whether the appellant was an innocent purchaser for value without notice, the appellate court agreed with the trial court, holding that the appellant cannot enjoy protection under the doctrine of innocent purchaser and that where property is acquired through a procedure against the law, the title cannot qualify for indefeasibility. It held that the title subsequently issued was invalid having been acquired illegally and irregularly. The appellate court found that the suit property was public land reserved for a public utility and that there was a road leading to the beach through the open space that was the suit property. The suit property thus remained a public utility incapable of giving rise to a private proprietary interest capable of being protected by a court of law. The appellate court thus dismissed the appeal and the cross appeal and affirmed the trial court’s decision including awarding costs to the 1st respondent.","E. Analysis and Determination
(i) Whether the appeal meets the constitutional threshold under article 163(4)(a) of the constitution Constitution?
39.
The 1st respondent challenges this court’s jurisdiction to hear and determine the appeal. It urges that none of the grounds in the appeal relate to interpretation or application of the Constitution. Indeed, jurisdiction is a preliminary issue that ought to be dealt with at the onset given that, without jurisdiction a court is obligated to down its tools. It therefore follows that we must first address the issue whether we are clothed with requisite jurisdiction under article 163(4)(a) of the Constitution pursuant to which the appeal has been brought.
40.
A court’s jurisdiction emanates from either the Constitution or legislation or both, as we stated in Samuel Kamau Macharia v Kenya Commercial Bank Limited & 2 others, Civil Application No 2 of 2011 as follows:
“
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
41.
Article 163(4)(a) of the Constitution states that:
“
(4)
Appeals shall lie from the Court of Appeal to the Supreme Court -
a)
As of right in any case involving the interpretation or application of this Constitution.”
This court has stipulated the limits of its jurisdiction under article 163(4)(a) of the Constitution in several of its decisions. In Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney-General & 2 others [2020] eKLR we stated as follows:
“
(i)
The jurisdiction reveres judicial hierarchy and the constitutional issues raised on appeal before the Supreme Court must have been first raised and determined by the High Court (trial court) in the first instance with a further determination on the same issues on appeal at the Court of Appeal.
ii.
The jurisdiction is discretionary in nature at the instance of the court. It does not guarantee a blanket route to appeal. A party has to categorically state to the satisfaction of the court and with precision those aspects/ issues of his matter which in his opinion fall for determination on appeal in the Supreme Court as of right. It is not enough for one to generally plead that his case involves issues of constitutional interpretation and application.
iii.
A mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involves little or nothing to do with the application or interpretation of the Constitution does not bring an appeal within the jurisdiction of the Supreme Court under article 163(4)(a).
iv.
Only cardinal issues of constitutional law or of jurisprudential moment, and legal issues founded on cogent constitutional controversies deserve the further input of the Supreme Court under article 163(4)(a).
v.
Challenges of findings or conclusions on matters of fact by the trial court of competent jurisdiction after receiving, testing and evaluation of evidence does not bring up an appeal within the ambit of article 163(4)(a).”
42.
Each case must however be evaluated on its own facts. To enable us resolve the question whether the matter concerns the interpretation and application of the Constitution, we must establish whether each of the issues raised falls under the court’s jurisdiction.
43.
The appellant seeks a determination on whether its rights under article 27(1) and 50(1) of the Constitution were violated by the appellate court’s application of the doctrine of res judicata, in the alternative, issue estoppel. The 1st respondent submits that the doctrine of issue estoppel is concerned with issues of facts and not law, and this does not call for the interpretation or application of the Constitution.
44.
We note that this is an issue that arose before the ELC, whereby the appellant argued, albeit unsuccessfully, that the 1st respondent’s petition, ELC Petition No 12 of 2017 was res judicata as the issues raised had been determined in HCCC No 131 of 2011. This issue was also taken up by the appellate court and now finds its way in this appeal. Is res judicata a factual matter devoid of the application of the Constitution?
45.
This court in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another, Motion No 42 of 2014 [2016] eKLR stated as follows concerning the doctrine of res judicata:
“[52] Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights….[55]..Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept...”
46.
The question the appellant seeks this court to determine is not on the principle of res judicata per se, but whether the petitioner’s rights under article 27(1) and 50(1) of the Constitution were violated by the court’s application of the doctrine of res judicata thus bringing it within this court’s jurisdiction. This is in tandem with its argument that decisions in rem by courts of concurrent jurisdiction are binding on each other to facilitate access to justice, rule of law and afford equal protection before the law. As seen above, res judicata is not just a factual contest but rather an issue of substantive law. In the context before us, we are persuaded that the issue is worth our input as a matter involving the interpretation and application of the Constitution as regards violations of the cited articles above.
47.
The second issue the appellant seeks determination of is whether the appellate court’s interpretation of bona fide purchaser amounted to unjustifiable and unreasonable limitation of the right to property under article 40 and in violation of articles 19(3)(c), 20(1), 21(3) and article 23 of the Constitution. The 1st respondent urges that the crux of the decision by the superior courts was on the status of the suit property as a public utility and being so, article 40 of the Constitution does not apply; that there is no such provision under article 40, protecting an innocent purchaser for value without notice. Having not been particularized under the article, it urges that it cannot be for determination as a matter of either interpretation or application of the Constitution.
48.
The 1st respondent urges that the appellant’s complaint, instead, relates to the manner in which the courts below applied the provisions of statute, being the Physical Planning Act (repealed) and the Government Lands Act and that a question of statutory interpretation and common law are not matters that fall for determination by this court under article 163(4)(a) of the Constitution.
49.
The appellant urges us to find that the initial allotment was legally and regularly undertaken under the then prevailing legal regime, the Government Land Act and further that the Physical Planning Act’s date of commencement was in 1998 while that of the Survey Regulations was in 1994, which was after the initial allotment of the suit property to the first registered owner. It is clear that the appellant seeks to have the court make a determination on the application of these statutory provisions, and more so, on the findings of fact upon which the applicable constitutional argument if any, can be applied.
50.
To interrogate this issue, the court inevitably has to descend into the factual contestations pitting both sides of the ownership divide. Allotment and allocation of land is a matter that is governed by Statute, be it Government Lands Act, Surveys Act, Physical Planning Act or any such legislation for that matter. Both the High Court and the Court of Appeal, as superior courts enjoined to look at the evidence and make factual findings, undertook their mandate appropriately arriving at the same conclusion relating to the proprietorship of the suit property.
51.
We are careful to note that this court has no jurisdiction to revisit the factual findings of the superior courts, and we are limited to the court’s jurisdiction under article 163(4)(a) of the Constitution. In Paul Mungai Kimani & 20 others (supra) we stated as follows:
“
Not every issue that was before the superior courts is open for this court’s determination in exercise of its appellate jurisdiction under article 163(4)(a). Matters of fact that touch on evidence without any constitutional underpinning are not open for this court’s review on appeal in exercise of its article 163(4)(a) jurisdiction. The same is also true of matters that purely dealt with interpretation and application of statutory provisions.”
52.
Similarly, in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (amicus curiae) [2021] KESC 34 (KLR) we stated:
“This court has no jurisdiction to revisit the factual findings of either the High Court or Court of Appeal on this issue. We have already answered the four critical questions in exercise of our jurisdiction under article 163(4)(b) of the Constitution… We may however not delve into the factual findings of the trial court and Court of Appeal…Challenges of findings or conclusions on matters of fact by the trial court of competent jurisdiction after receiving, testing and evaluation of evidence does not bring up an appeal within the ambit of article 163(4)(a)”
53.
From the record and pleadings, the appellant asserted its rights to property under article 40 of the Constitution. It averred that it was a bona fide purchaser and the registered owner of the suit property and thus the actions of the 1st respondent amounted to unjustifiable and unreasonable limitation of the right to property under article 40 in violation of articles 19(3)(c), 20(1), 21(3) and 23 of the Constitution. On the other hand, the 1st respondent asserted its rights both as public property on the beach and on the basis of article 40(6) of the Constitution not to protect illegally acquired property. The question for interpretation and application of the Constitution is therefore the extent of the protection, if any, to the suit property. In doing so, we shall interrogate whether the appellate court’s interpretation of bona fide purchaser amounted to a violation of the appellant’s right to property under article 40 of the Constitution. We therefore find that we have jurisdiction to hear and determine the matter.
54.
Thirdly, the appellant urges this court to determine whether the enforcement actions by the 1st respondent violated the appellant’s right to property under article 40, right to equal protection before the law under article 27(1) and the right to fair administrative action under article 47 of the Constitution. The 1st respondent counters that by arguing that there was no specific complaint pleaded under article 47 and this was not for discussion and never for determination by the courts below. Further, it urges that the modalities of raising complaints under article 47 are set out in the Fair Administrative Actions Act, 2015 which actualized the article 47 of the Constitution.
55.
From the record, we note that one of the prayers sought before the trial court was, ‘a declaration that the respondent’s actions are unconstitutional and a violation of the petitioner’s rights under article 27(1) and (1), article 29 and articles 47(1) and (2) of the Constitution.’ The appellant framed six issues for determination which the trial court adopted. None of these issues included a determination as to whether the rights cited were violated. Similarly, a perusal of the appellant’s memorandum of appeal lodged at the Court of Appeal, wherein it raised twenty-two grounds of appeal, does not reveal any fault being attributed to the trial judge for not addressing this issue. As it appears, they were not issues considered by the superior courts. Can they therefore come up at this juncture, on appeal? Hardly.
56.
This court has held in several of its decisions including in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another; SC Pet No 3 of 2021 [2012] eKLR and Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others SC Petition No 3 of 2020 [2020] eKLR that to bring an appeal pursuant to article 163(4)(a) of the Constitution, it must be demonstrated that the issues of contestation involve the interpretation or application of the Constitution, which constitutional issues had been considered and determined by the superior courts. It is that interpretation or application of the Constitution by the appellate court that forms the basis of a challenge before this court.
57.
The interpretation or application of articles 27(1) and 47 of the Constitution having not been a question for determination before the superior courts, this court would have no jurisdiction to entertain an appeal brought under article 163(4)(a). Accordingly, this court has no jurisdiction to establish whether the 1st respondent’s “enforcement actions” violated the appellant’s right to property (article 40), right to equal protection before the law (article 27(1)) and the right to fair administrative action under article 47 of the Constitution as this would amount to converting the court into a court of first instance. In our view, the appellant is no more than seeking compensation and/or damages both liquidated and special, matters that are not in the purview of consideration by this court.
58.
Lastly, the appellant seeks a determination on whether the appellate court erred by failing to consider the provisions of Part V of Chapter 11 of the Constitution on the relationship between devolved government and the national government, specifically Article 189 of the Constitution in relation to resolution of disputes between the national government, its agencies and devolved government.
59.
The 1st respondent submits that the issue for determination before the superior courts was the ownership of the suit property which was registered in the name of the appellant in July, 2006. Its case is that the law applicable at the time for a person to assert rights, liabilities and remedies was the Registration of Titles Act, which was repealed by the Land Registration Act. Further, neither the Constitution 2010 nor the derivative Act under Article 189 of the Constitution were in existence including the two levels of government for the intergovernmental relations dispute mechanism to apply.
60.
We note that this question neither arose nor was it determined by the trial court. It is only at the Court of Appeal vide the Attorney General’s cross appeal that the court’s jurisdiction to hear and determine the matter was first questioned on this ground. Whether the dispute is intergovernmental in nature is a jurisdictional issue. Indeed, jurisdiction is a pertinent question for determination. A court is bound to always satisfy itself whether or not it has jurisdiction to hear and determine a matter before it. In Lemanken Aramat v Harun Meitamei Lempaka & 2 others [2014] eKLR we held that jurisdiction is a legal question and it can be raised at any time and by any party. The Nigerian Supreme Court in the case of Alhaji Bello Nasir v Kano State Civil Service Commission & 2 others, SC 144/2003 per Ogbuagu, JSC in his concurring judgement held as follows:
“
It is now firmly settled that issues of jurisdiction or competence of a court to entertain or deal with a matter before it, is very fundamental. It is a point of law and therefore, a rule of court, cannot dictate when and how, such point of law can be raised. Being fundamental and threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any court including this court”",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/30/eng@2023-04-21
Application E004 of 2023,Gaciani & 11 others v Kimanga & another (Application E004 of 2023) [2023] KESC 23 (KLR) (Civ) (21 April 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",21 April 2023,2023.0,Nairobi,Civil,Gaciani & 11 others v Kimanga & another,[2023] KESC 23 (KLR)               ,,"Ruling of The Court
1.
Upon perusing the notice of motion application dated February 17, 2023 and filed on February 23, 2023 pursuant to rule 15(2) of the Supreme Court Rules, 2020, seeking to be granted extension of time to file and serve the notice of appeal and seeking leave and certification as a matter of general public importance;
2.
Uponperusing the grounds on the face of the application; the supporting affidavit of Mary Muthoni Karinga sworn on February 17, 2023 and submissions dated February 17, 2023, the applicants contend that: the delay in filing and serving the notice of appeal is inadvertent; there is no inordinate delay; and the intended appeal raises a matter of general public importance;
3.
Upon further considering the applicants’ grounds in support of the application that: being dissatisfied with the decision of the Court of Appeal, they instructed the firm of CM Kingori & Co Advocates to seek leave to appeal to the Supreme Court; that the advocate filed the requisite application dated July 16, 2021 but failed to update them on the progress; that upon perusal of the file at the Court of Appeal registry on February 14, 2023 they discovered that the application for leave and certification was withdrawn by their advocate without the applicants’ instructions and knowledge; and a notice of appeal was never filed, and this was caused by the negligence on the part of the advocate;
4.
Noting the applicants’ submissions that the intended appeal raises matters of public interest which transcend the present litigation with substantial, broad based consequences stated as: whether in determining a customary trust in land the court has power to formulate its own class of beneficiaries or mode of sharing without regard to intentions of the trust; whether the court has power to apply constitutional and statutory dictates to alter intentions of the creators of a customary trust; whether in determining a customary trust over land the court should apply the terms of the subject trust existing at the time of creation of the trust; and whether as held by the Court of Appeal in Mwongera Mugambi Rinturi & Ano v Josephine Kaarika & 2 others [2015] eKLR, in determining customary trust over land,
“a child is a child none being lesser on account of gender or the circumstances of his birth”
and that each has a distinct share of the trust land regardless of what the applicable customary law may dictate, such as children born after a widow remarries, those born after a wife divorces or those of a levirate union such as the respondents herein;
5.
Upon perusing the respondents’ replying affidavit sworn by the 1st respondent on March 6, 2023 and their submissions of even date, they contend that: the applicants’ advocates withdrew the notice of motion application dated July 16, 2021 filed at the Court of Appeal, on November 29, 2022 in order to seek extension of time to file an appeal to the Supreme Court; the Environment and Land Court at Kerugoya in ELC No 220 of 2013 issued orders to facilitate the implementation and/or execution of the judgment dated November 21, 2016; the application is bad in law as certification ought to be determined at the Court of Appeal in the first instance; the grounds introduced to support certification in the submissions should be struck out; the matter concerns private ownership of property and not one of general public importance under article 163(4)(b) of the Constitution, and they cite the decisions of Patel v Lagat Civil Application No E046 of 2021 [2022] KECA 509 (KLR) and Hermanus Phillipus Steyn v Giovanni Gnechi-Ruscone [2013] eKLR to buttress their arguments;
6.
Bearing in mind the provision of section 15(2) of the Supreme Court Rules, 2020 which gives this court discretion to extend time limited by the Rules or by any decision of the court.
7.
Taking into account this court’s decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where we stated that the notice of appeal is a jurisdictional prerequisite and signifies the intention to appeal for purposes of this court’s Rules and further set out the guiding principles for extension of time as follows:
“
… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant.… we derive the following as the underlying principles that a court should consider in exercising such discretion:
1.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the court;
2.
a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the court;
3.
whether the court should exercise the discretion to extend time, is a consideration to be made on a case- to-case basis;
4.
where there is a reasonable cause for the delay, the same should be expressed to the satisfaction of the court;
5.
whether there will be any prejudice suffered by the respondents, if extension is granted;
6.
whether the application has been brought without undue delay; and
7.
whether in certain cases, like election petitions, public interest should be a consideration for extending time”
8.
Further noting that the instant application has been filed 18 months after the delivery of the Court of Appeal judgment, which delay is explained by the applicants as caused by the negligence on the part of their advocate;
9.
","Having considered the application, affidavit in response and submissions filed, we now opine as follows:
(i)
Rule 36(1) of the Supreme Court Rules is couched in mandatory terms and requires that a person intending to appeal to the Supreme Court shall within 14 days of the decision of the Court of Appeal, file the notice of appeal. Rule 36(4) further states that in lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal;
(ii)
Whereas mistakes of an advocate ought not to be visited upon a litigant, there must be cogent and credible evidence, the applicants have not demonstrated any efforts or due diligence, through evidence or correspondence of the follow up with the advocates or to pursue their rights as we found in George Kang’ethe Waruhiu v Esther Nyamweru Munene & another Civil Application No 18 of 2020 [2021] eKLR. It is not enough for a party to simply blame the advocates on record for all manner of transgressions. Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.
(iii)
The delay in filing the instant application is inordinate and has not been satisfactorily explained.
(iv)
Under section 15B of the Supreme Court Act, and rule 33(1) an application for certification shall be filed before, and determined by the Court of Appeal at the first instance. This renders the prayer for leave to appeal and certification herein premature.
10.
Consequently, for reasons aforesaid, we make the following orders:
(i)
The notice of motion application dated February 17, 2023 be and is hereby dismissed; and
(ii)
The applicants shall bear costs of this application for the respondents herein.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/23/eng@2023-04-21
Petition 18 (E025) of 2021,Judicial Service Commission v Oduor & 5 others (Petition 18 (E025) of 2021) [2023] KESC 32 (KLR) (21 April 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",21 April 2023,2023.0,Nairobi,Civil,Judicial Service Commission v Oduor & 5 others,[2023] KESC 32 (KLR)               ,,"A. Introduction and Background
1.
The promulgation of the Constitution of Kenya, 2010 on August 27, 2010 signaled the beginning of a transformative path in Kenya. The new constitutional dispensation brought with it a new wave of reforms across governance structures and public institutions. To enhance confidence in the Judiciary, chapter 10 of the Constitution contained provisions on judicial authority, independence of the Judiciary, judicial offices and officers, system of courts, appointment of Chief Justice, Deputy Chief Justice and other judges including their tenure, establishment of the Judicial Service Commission as well as the establishment of the Judiciary Fund. To facilitate the transition of the institution from the previous constitutional design of the Judiciary, there had to be mechanism to ensure that judges and judicial officers inspired confidence and were fit to continue serving under the new regime.
2.
This paved way for the enactment of the Vetting of Judges and Magistrates Act No 2 of 2011 (hereinafter the Act) pursuant to section 23 (1) of the sixth schedule to the Constitution. The object of the Act was to provide for the vetting of judges and magistrates pursuant to section 23 of the sixth schedule to the Constitution; to provide for the establishment, powers and functions of the Judges and Magistrates Vetting Board, and for connected purposes. The Act established the 5th respondent, the Judges and Magistrates Vetting Board (hereinafter the Board) whose function was to vet judges and magistrates in accordance with the provisions of the Constitution and the Act. The Board was tasked with the responsibility of establishing the suitability of judges and magistrates serving at that the time to continue serving.
3.
The 1st to 4th respondents, who were all serving magistrates at the time, were vetted by the Board and found unsuitable to continue serving as such. Their attempt to have the Board review its decision was dismissed. As a result, the Judicial Service Commission, the appellant herein, removed the 1st to 4th respondents from office, in line with the Board’s decision.
4.
This appeal, pursuant to section 15(2) of the Supreme Court Act and rule 39 (1) of the Supreme Court Rules 2020 stems from the ensuing litigation initiated by several magistrates challenging their removal by the Board. The appeal invokes this court’s jurisdiction under article 163(4)(a) of the Constitution and primarily seeks the interpretation of section 23(2) of the sixth schedule to the Constitution and its applicability to magistrates.
","E. Analysis and Determination
30.
At the onset, we need to satisfy ourselves of our jurisdiction over any matter before us, taking into account our limited jurisdictional contours. This arises from the well settled edict that a court can only exercise jurisdiction as circumscribed in the Constitution or statute or both.
31.
We note that none of the parties objected to our jurisdiction in this matter. The appellant has nevertheless specified with precision that it invokes this court’s jurisdiction, as of right, under article 163(4)(a) of the Constitution. The constitutional question identified by the appellant relates to the interpretation and/or application of section 23(2) of the sixth schedule to the Constitution in relation to magistrates. We have made numerous pronouncements including, Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another SC Petition No 3 of 2012 [2012] eKLR and Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013 [2014] eKLR where we have enunciated that where issues of contestation revolve around the interpretation or application of the Constitution the same ought to have been canvassed in the superior courts and progressed through the normal appellate mechanism so as to reach this court by way of an appeal as contemplated under article 163 (4)(a) of the Constitution.
32.
The present appeal easily meets the requisite jurisdictional threshold since it involves the interpretation of section 23(2) of the sixth schedule to the Constitution vis-à-vis its applicability to magistrates which issue has been subject of the litigation and transcended through the superior courts to this court. In any event, the said constitutional provision has previously been before this court through JMVB 1 and JMVB 2 the effect of which is partly in issue in the present appeal. Having dispensed with the court’s jurisdiction, we now move to the crux of the dispute.
i. Whether section 23(2) of the sixth schedule to the Constitution applies to magistrates
33.
To get its proper perspective and context, section 23 of the Sixth Schedule to the Constitution provides:
""(1)
Within one year after the effective date, Parliament shall enact legislation, which shall operate despite article 160, 167 and 168, establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in articles 10 and 159.
(2)
A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court.”
34.
The appellant; the 5th and 6th respondents contend that section 23(2), which cannot be read in isolation of section 23(1), is an ouster clause that applies to the Board’s decisions relating to both judges and magistrates. This is firmly opposed by the 1st to 4th respondents who aver that there is a clear difference between judges and magistrates and that the drafters of the Constitution were aware and could not have used the term ‘judge’ to refer to both judges and magistrates. For this reason, it is the 1st and 4th respondents’ contention that the absence of the word magistrate in section 23(2) was not intentional as the said section was not intended to apply to magistrates.
35.
It is appreciated by all the parties, following our decision in JMVB 1 and JMVB 2 that section 23(2) of the sixth schedule to the Constitution ousted the jurisdiction of the courts. Indeed, the majority judgment, appreciating the binding nature of this court’s findings on superior courts below, alluded to the same position in the following manner:
“
31
Regarding the 1st issue, there is no dispute that the applicability and efficacy of article 23(2) of the 6th schedule has been conclusively determined by the Supreme Court… It is enough that the Supreme Court declared the ouster clause valid.”
The bone of contention which is subject of litigious contestation and remains alive in the present appeal is whether the ouster applies to magistrates or was only limited to judges. The applicable provision which extended ouster of the Board’s decision to magistrates is section 22(4) of the Act which provides:
“
22
Review
(4)
A removal or a process leading to the removal of a magistrate from office under this Act shall not be subject to question in, or review by, any court.”
This provision is buttressed by the provision of section 22(5) which states that “the decision by the Board under the review provision shall be final.”
36.
The proponents of the ouster clause applying to magistrates argue that this was the import of the decision in JMVB cases and that section 23(2) of the sixth schedule cannot be read in isolation of section 23(1) thereof but rather in a manner that sustains both. On the other end of the argument comes the 1st to 4th respondent who maintain that the magistrates are excluded from the ouster set out in section 23(2). This is because the drafters of the Constitution were very deliberate in differentiating the judges from the magistrates in the different provisions such as article 160, 167 and 168; that in the JMVB cases decisions, the Supreme Court did not address itself to the ouster of magistrates as none of them was party to the case and that extending section 23(2) to include magistrates amounts to amending the Constitution, a jurisdiction that the court is not clothed with. Peripheral to these arguments is the constitutionality of section 22(4) of the Act which the 4th respondent urged us to find as unconstitutional.
37.
In unravelling this contestation, we have to address ourselves to these three questions: a) What is the import of JMVB 1 and 2 in so far as they apply to magistrates? b) is section 22(4) of the Act unconstitutional? and c) Does the ouster in section 23(2) apply to magistrates?
a. The JMVB 1 and JMVB 2
38.
The superior courts below took divergent views with the High Court and appellate court arriving at different conclusions on the finality of the Board’s decisions under section 23(2) in relation to magistrates. Considering the binding nature of the said decisions on the courts below as dictated by article 163(7) of the Constitution, we thought the dragon was slayed and would not have foreseen that there would arise fundamental differences as to the import of the said decisions. The present case presents the proverbial phoenix that resurrected the discussion surrounding section 23(2) of the sixth schedule. This makes it imperative for us to restate our position on the said decisions, notwithstanding the fact that magistrates were never part of the litigants.
39.
In JMVB 1, the main issue before us was “whether section 23 (2) of the sixth schedule to the Constitution of 2010 ousts the jurisdiction of the High Court to review the decision of the Judges and Magistrates Vetting Board declaring a judge (or magistrate) as being unsuitable to continue serving as such”. In our determination we stated as follows:
“
[200]
… We would clarify that by the terms of the Constitution itself, the High Court’s general supervisory powers over quasi-judicial agencies, and its mandate in the safeguarding of the fundamental rights and freedoms of the Constitution, by no means qualify the ouster clause which reserves to the Judges and Magistrates Vetting Board the exclusive mandate of determining the suitability of a judge or magistrate in service as at the date of promulgation of the Constitution, to continue in service. The basis of the said ouster clause is found in the history attending the Constitution; in the requirement of the Constitution for essential transitional arrangements; and in the express terms of the Constitution, by virtue of which the Vetting Board was established to determine the suitability of certain judicial officers, for the purposes of the values and principles declared in the Constitution itself.”
40.
Having set out the applicable parameters under the Constitution, our historical perspective including the views of the citizens as collected and collated leading to the referendum and eventual promulgation of the Constitution, we appreciated the disruptive potential of litigation against the decisions of the Board in the wake of the transitional provisions that bestowed upon the High Court, supervisory jurisdiction over bodies or authority exercising judicial or quasi-judicial functions. The Board by its function fell under such body that would, but for the ouster provided in the transition clause, be subject to the jurisdiction of the High Court, presided over by Judges. Underscoring the centrality of the vetting process we concluded as follows:
“
[202]
For the avoidance of doubt, and in the terms of section 23(2) of the sixth schedule to the Constitution, it is our finding that none of the superior courts has the jurisdiction to review the process or outcome attendant upon the operation of the Judges and Magistrates Vetting Board by virtue of the Constitution, and the Vetting of Judges and Magistrates Act.”
41.
Appreciating the exclusive mandate of the Board in determining the suitability of a judge or magistrate in service at the date of promulgation of the Constitution, we directed the superior courts below to dispose of the pending matters against the board in line with our decision.
42.
The 1st to 4th respondents argue that our decision in JMVB cases was obiter dictum. The 4th respondent goes a step further to argue that our decision was made per incuriam rendering it non-binding on the courts below. In Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others SC Petition No 4 of 2012 [2013] eKLR we expressed ourselves as follows:
“It is a general rule that the court is not bound to follow its previous decision where such decision was an obiter dictum (side-remark), or was given per incuriam (through inattention to vital, applicable instruments or authority). A statement that is obiter dictum is one made on an issue that did not strictly and ordinarily, call for a decision: and so it was not vital to the outcome set out in the final decision of the case. And a decision per incuriam is mistaken, as it is not founded on the valid and governing pillars of law.”
43.
In the JMVB case, the focus of our decision was the mechanism contemplated under section 23 of the sixth schedule. This mechanism revolved around the operations and functions of the Board as per the legislation enacted under section 23(1). To us, it did not matter whether the judges, magistrates or any other litigant, considering the expanded scope of access to justice that the Constitution brought with it, were challenging the decisions or mechanisms of the board in relation to vetting. That explains why in framing the issue in JMVB 1, the focal point was the ouster of the jurisdiction of the court to review the decision of the Board arising out of the vetting exercise. Our position was further manifested in our finding affirming that the process or outcome attendant upon the operations of the Board were not subject to review by the superior courts.
44.
However, noting that the board would sometimes stretch the vetting exercise to consider matters beyond the promulgation of the Constitution, it was necessary to clarify the effect of our decision in JMVB 1. In JMVB 2 we not only affirmed our position in JMVB 1 regarding the frontiers of section 23(2) of the sixth schedule, but also reiterated the obtaining legal position as follows:
""39.
Having extensively considered the frontiers of section 23(2) of the sixth schedule to the Constitution, this court (at paragraph 202) stated categorically as follows:
…
40.
In other words, this court consciously articulated the state of the law, in accordance with the Constitution: the removal of a judge or magistrate, or a process leading to such removal by virtue of the operation of the Judges and Magistrates Vetting Act by the Vetting Board, cannot be questioned in any court of law. That remains the valid position, under the law."" [Emphasis added]
45.
However, to avert the potential excesses by the board in the vetting of magistrates and judges, it was necessary to clarify and delineate the time zone within which the board was to consider its activities. The board having been established as a transitional institution was expected to consider the conduct of the serving judges and magistrates as at the effective date of the promulgation of the Constitution. Any consideration beyond that date would turn it into what we equated to the “unruly dog” as espoused by Lord Mersey. To rehash our position, we stated as follows:
“
(63)
We find and hold that the Judges and Magistrates Vetting Board, in execution of its mandate as stipulated in section 23 of the sixth schedule to the Constitution of 2010, can only investigate the conduct of judges and magistrates who were in office on the effective date on the basis of alleged acts and omissions arising before the effective date, and not after the effective date. To hold otherwise would not only defeat the transitional nature of the vetting process, but would transform the Board into something akin to what Lord Mersey once called “an unruly dog which, if not securely chained to its own kennel, is prone to wander into places where it ought not to be” (Lord Mersey in G & C Kreglinger v New Patagonia Meat & Cold Storage Co Ltd (1913). Lord Mersey used the analogy of “a dog” to refer to the “Equity of Redemption” in the law of mortgages. Here, we use it to refer to “a jurisdictional mandate” within our constitutional set-up; and not, the Board per se.”
46.
Before concluding this aspect, it is incumbent upon us to address the assertion that magistrates were not represented in the JMVB cases before us. It is also not entirely accurate to proclaim that magistrates were not represented in the JMVB cases. Indeed, while the JMVB cases pitted at least 7 judges, serving at the time, amongst the litigants were the appellant and the Kenya Judges and Magistrates Association (KJMA) – the umbrella body dealing with the welfare of judicial officers to which magistrates comprise a large constituency. The KMJA was at all times capable of articulating the position of magistrates alongside those of judges.
47.
Flowing from above, our findings in JMVB cases on the interpretation of section 23(2) of the sixth schedule was adequate. In arriving at the said decision, we considered the tenets of the interpretation of the Constitution, the history, purpose, objective and unique circumstances of our country. As the apex court, we want no more than undertake our constitutional and statutory duty in settling the legal position surrounding the dictates of the people of Kenya, on whose behalf we exercise judicial authority.
48.
To our minds therefore our findings in JMVB cases were neither per incuriam nor obiter dictum. As explained, the alleged absence of magistrates among the direct litigants did not overshadow the constitutional imperative which shielded the operations of the Board itself under which both the judges and magistrates fell. We note that the mandate of the Board itself is not at the moment under challenge and the respondents willingly submitted to its jurisdiction both at the first instance and in appellate capacity when they sought a review of the Board’s decision.
b. Is section 22(4) of the Act unconstitutional?
49.
We note that this is an issue that was brought up by the 4th respondent in his submissions. Considering the nature of our jurisdiction, we appreciate that this is not an issue that was at the centre of the arguments and court determination by the superior courts below. As set out in Lawrence Nduttu case (supra) this issue does not qualify to attract our resolution under article 163(4)(a) of the Constitution. As stated above, the constitutionality of section 22(4) of the Act was not framed by either of the superior courts as an issue for determination. At the heart of the dispute now on appeal was the interpretation of section 23(2) of the sixth schedule of the Constitution and whether the ouster contemplated under section 23(1) of the sixth schedule extended to magistrates.
50.
We point out that, as already stated, we considered the import of section 22(4) of the Act in JMVB 1. Undeniably, the first issue for determination as framed in JMVB 1 was:
“
78
. . .
i)
whether section 23(2) of the sixth schedule to the Constitution and section 22(4) of the Vetting of the Judges and Magistrates Act oust the jurisdiction of the High Court to review the decision of the Judges and Magistrates Board; and” (Emphasis ours)
It is our painstaking view that the court, in interrogating the provisions of section 23(2) of the sixth schedule was mindful of not only its application to magistrates but of the enabling statutory provision contained in section 22(4) of the Act. Undoubtedly, the constitutionality of this statutory provision would only be weighed against the provisions of section 23(2) of the sixth schedule, something that has already received sufficient judicial consideration.
51.
Moreover, in Nairobi High Court Petition No 146 of 2011, Dennis Mogambi Mong’are v Attorney General & 3 others, the petitioner unsuccessfully sought a declaration that Section 23 of the Sixth Schedule to the Constitution together with the Vetting of Judges and Magistrates Act are unconstitutional. This position was affirmed by the Court of Appeal and we took cognisance of this fact in JMVB 1.
52.
It therefore serves no further purpose to spend judicial time and resources in answering a peripheral question by way of unconstitutionality of section 22(4) of the Act, the main constitutional provision of section 23(2) of the sixth schedule to the Constitution having already been addressed by this court. In any event, the 4th respondent never put a spirited attempt to make his argument around the constitutionality of this statutory provision as to try to persuade us otherwise.
c. Does the ouster in section 23(2) of the sixth schedule to the Constitution apply to magistrates?
53.
The crux of the appeal is whether section 23(2) of the sixth schedule to the Constitution apply to magistrates. The appeal calls for our interpretation of the said constitutional provision in light of the arguments before us. We remain alive to the previous decisions and positions taken by this court in the JMVB cases. We also remain alive to the fact that this court is not bound by its previous decisions. To this end, article 163(7) of the Constitution provides that:
“
(7)
All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.”
The 1st to 4th respondents hinge their argument in favour of an interpretation against the ouster of the jurisdiction of the High Court, on the main fact that we are dealing with magistrates and not judges, unlike the JMVB cases. To them, any other interpretation of the provision amounts to equating magistrates to judges contrary to the other provisions of the Constitution.
54.
Jaclyn L Neo (ed) Constitutional Interpretation in Singapore; Theory and Practice (Routledge, 2017) at page 1, states that constitutional interpretation introduces additional factors for consideration as compared to the interpretation of statutes. With that in mind, a holistic reading of the Constitution is imperative to give it a purposive and contextual interpretation taking cognizance of other provisions as well as Kenya’s historical context with the view of protecting and promoting the purpose, effect, intent and principles of the Constitution. In In the Matter of Kenya National Commission on Human Rights SC Advisory Opinion Reference No 1 of 2012 [2014] eKLR we expressed ourselves as follows:
“But what is meant by a ‘holistic interpretation of the Constitution’? It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.”
55.
In construing the Constitution, article 259 posits that interpretation ought to be in a manner that promotes its purpose, values and principles; advances the rule of law, and the human rights and fundamental freedoms in the bill of rights; permits the development of the law; and contributes to good governance. Being the court of final judicial authority, this court is tasked with asserting the supremacy of the Constitution and sovereignty of the people of Kenya by providing an authoritative, impartial and ultimate interpretation of the Constitution having due regard to circumstances, history and cultures of the people of Kenya. This results in development of rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth. This court appreciates its solemn duty and clear obligation to provide firm and recognizable reference-points, devoid of contradictions, that lower courts can rely on when called upon to interpret the Constitution, see In the Matter of the Speaker of the Senate & another SC Advisory Opinion Reference No 2 of 2013 [2013] eKLR.
56.
The context of our decision in JMVB cases remains and there is no argument about it. And in order to put the dispute in context, various proposals were made to the Committee of Experts (hereinafter “CoE”) on how to shepherd the intended transformation from the old to the new constitutional dispensation. The Final Report on the Committee of Experts on Constitutional Review categorized the proposals by Kenyans into two. One, that the entire judiciary be reappointed (with the judicial officers or at least all judges being treated as having lost their jobs but permitted to reapply); and two, the judicial officers remain in office but be required to take a new oath and undergo a vetting process. On careful consideration, the CoE decided that a wholesale reappointment was not appropriate. Instead, some form of vetting was proper, similarly, as it was done in Bosnia-Herzegovina, East Germany, the Czech Republic and elsewhere in Eastern Europe.
57.
The main aim of the vetting process was to ensure that any serious complaints against sitting judicial officers were properly considered. Even though CoE’s recommendation on vetting was limited to judges, it was alive to the fact that most of the public’s experiences of the justice system were at the magistracy level. However, the challenge faced was that the magistracy was large and would pose implications in the operations of subordinate courts; and by reason of judges having stronger protection, their removal being a rare occurrence. Nevertheless, before the draft Constitution was submitted to the people of Kenya in the ensuing referendum, the vetting process was extended to cover both judges and magistrates who were in office on the effective date of August 27, 2010. Resultantly, it led to the transition clause contained in section 23 of the sixth schedule of the Constitution as promulgated.
58.
As previously observed, the suitability of a judicial officer to continue in service under the new constitutional dispensation, is a matter reserved by law to the Board. Hardly any cogent argument has been advanced before this Court, that the Judges and Magistrates Vetting Act, which implemented the ouster clause, is not indeed the legislation contemplated under section 23(1) of the sixth schedule to the Constitution; and as there is no other legislation such as would claim that status, we have come to the conclusion that there is nothing out of harmony in the common purpose of the Constitution, section 23 of its sixth schedule, and the relevant statute – the Judges and Magistrates Vetting Act.
59.
It follows that a contest to the decision of the Judges and Magistrates Vetting Board, insofar as such a decision affects particular judges involved in the vetting process, is in effect, a collateral challenge to the Board’s authority: and this would be inconsistent with the terms of the Constitution. This is what we held in the JMVB cases. We have not been persuaded to alter our position in the JMVB Cases. Nothing has been tabled before us to warrant a review of our own decision as settled in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition (App) No 4 of 2012; [2013] eKLR, Fredrick Otieno Outa v Jared Odoyo Okello & 3 others SC Petition No 6 of 2014 [2017] eKLR and contemplated by section 21(A) of the Supreme Court Act.
60.
Shielding the vetting process by the Board from the review jurisdiction of the courts in our view represents the unique situation that we found ourselves in as a country that was transitioning from the old order. In any event, the transition only operated in a specific time frame and historical context of our country. Moreover, this transition between the old Constitution and the new one was more people centric having accrued from a referendum. It is within this prism that we went for the broader consideration of the vetting exercise in the transition context. The only logical conclusion out of the vetting exercise by the Board was to either recommend suitability of judges and magistrates to continue serving or unsuitability with the latter resulting to removal. There was no expectation that the judges and magistrates would expect different treatment before the Board undertaking a similar vetting exercise.
61.
This by no means amounted to a reading in of the specific provisional Constitution in section 23(2) of the sixth schedule, or equating magistrates to judges. The vetting or judges and magistrates was a constitutional requirement that was time bound under article 262 of the Constitution. Any legislative enactments made to effect the sixth schedule to the Constitution, including section 23 thereof had to be sustained.
62.
On the contention by the 1st to 4th respondents that the drafters of the Constitution knew the difference between magistrates and judges and used the words in the Constitution deliberately, nothing could be further from the truth. In the transition context, articles 160, 167 and 168 are inapplicable, and are thus unavailable for comparative purposes. The issue, as we see it, appears to be more of grievances regarding the outcomes for the specific respondents who did not agree with the decisions of the Board.
63.
In the end, and having clarified JMVB 1 and JMVB 2 in so far as it applies to magistrates, we find merit in the appeal and reiterate that section 23(2) of the sixth schedule, in so far as it implicates the function of the Board in the vetting of judges and magistrates, is not subject to the review jurisdiction of the High Court. This leads us to the consideration of the appropriate reliefs in the circumstances.
ii. What are the appropriate available reliefs
64.
Apart from urging us to allow the appeal by setting aside the judgment of the Court of Appeal and upholding that of the High Court, the appellant seeks declaratory reliefs on the interpretation of section 23(2) of the sixth schedule to the Constitution as an ouster clause and that no court is clothed with jurisdiction to review the determination and the process leading thereto of the now defunct Board. The appellant further seeks a declaration that the Board is no longer in existence and as such the vetting process can neither be reopened nor can its decisions be revisited.
65.
The 1st to 3rd respondents oppose these proposed declarations on the basis that the unavailability of the remedies cannot be a ground that would lead a court to fail to consider a matter on merit. They contend that the Board’s jurisdiction to give magistrates a hearing and entertain review applications was done and completed. Hence, once the matter is before the High Court, the existence of the Board becomes irrelevant and nothing can go back there. That the court is to determine the matters before it conclusively, therefore, existence of the Board becomes irrelevant.
66.
It is apparent that the appellant seeks declarations with regard to a process that was time bound as it was to conclude not later than December 31, 2015 and the Board be subsequently dissolved within thirty (30) days as per the Act. As it stands, the Board is non-existent. Moreover, the declarations the appellant seeks were not matters that were before the superior courts for their determination. Can a party contend that the unavailability of the remedies is ground that would result in a court’s failure to consider a matter on merit?
67.
Clearly the issues raised in the appeal do no more than seek clarity on a legal position that we have previously provided. We do not see any purpose to be served by making declarations touching on the defunct Board in light of our findings. We nevertheless add that it matters not that the term of the Board may have lapsed. That is to say, lapse of time is not a factor that contributes towards the interpretation and/or application of the Constitution when the jurisdiction is properly invoked and more so, found to have merit.
68.
On the issue of costs, in Kenya Revenue Authority v Export Trading Company Limited (Petition 20 of 2020) [2022] KESC 31 (KLR) (Civ) (17 June 2022) (Judgment) we opined that public bodies and organizations which ordinarily exist to serve a country’s government and who are acting within their mandate need not be condemned to pay costs where such an entity has brought or defended proceedings while acting purely in that regulatory capacity. Therefore, award of costs against such entities should only be made where such an entity has acted unreasonably or in bad faith. That said, to us the appellant being an independent commission and having filed the petition in that capacity undoubtedly did so with no ill intent but rather to clarify the position in relation to the litigants. Similarly, we cannot punish the respondents, particularly the 1st to 4th respondents for pursuing their legitimate right to access justice under the Constitution. Thus, we are not persuaded to make any order for costs for or against any of the parties.
69.
We thank all the counsel for their input, research and presentation in the course of this matter.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/32/eng@2023-04-21
Application 11 (E020) of 2022,Kamundi & another (Practising as Kinyua Muyaa & Co Advocates) v Kenya Ports Authority Pension Scheme & 8 others (2nd - 9th Respondents - Sued on their own behalf and on behalf of their predecessors and/or successors in title in their capacity as the Registered Trustees of the Kenya Ports Authority Pension Scheme) (Application 11 (E020) of 2022) [2023] KESC 29 (KLR) (21 April 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",21 April 2023,2023.0,Nairobi,Civil,Kamundi & another (Practising as Kinyua Muyaa & Co Advocates) v Kenya Ports Authority Pension Scheme & 8 others (2nd - 9th Respondents - Sued on their own behalf and on behalf of their predecessors and/or successors in title in their capacity as the Registered Trustees of the Kenya Ports Authority Pension Scheme),[2023] KESC 29 (KLR)               ,,"Brief facts
The application sought the review and setting aside of the ruling of the Court of Appeal declining to certify the questions raised by the applicant as matters of general public importance and refusal of grant of leave to appeal to the Supreme Court on issues identified and proposed as involving matters of general public importance. The applicants contended that the appeal raised substantial matters of general public importance that transcended the parties and that the judges of the Court of Appeal delivered contradicting judgments.
The applicants stated that the mode of assessment of advocates' fees after certification of costs in a party and party bill of costs did not arise directly in the appeal as it was not one of the grounds of appeal. Further, that by requiring the taxing master to use Kshs 201,981,424.00 as the value of the subject matter without any appeal the Court of Appeal reduced the fees by more than 90% thereby interfering with property rights already accrued and without applying the doctrine of res judicata and that the general public and specifically the legal profession would benefit from determination of those issues.
Issues
Whether the allegation that the Court of Appeal delivered a judgment without reading the record of appeal and that the judges did not read each other’s draft judgments were matters of general public importance appellable at the Supreme Court. 
Whether taxation of advocate-client bill of costs was a matter of general public importance appellable at the Supreme Court. 
","Upon perusing the originating motion application dated November 3, 2022 and filed on November 8, 2022 pursuant to article 163(4)(b) of the Constitution, section 15 and 16 of the Supreme Court Act and rule 33(2) of the Supreme Court Rules, 2020 seeking, inter alia: the review and setting aside of the ruling of the Court of Appeal delivered on October 21, 2022 declining to certify the questions raised by the applicant as being matters of general public importance; and refusal of grant of leave to appeal to the Supreme Court on the thirteen (13) issues identified and proposed as involving matters of general public importance;
2.
Upon perusing the grounds on the face of the application; the supporting affidavit sworn on November 3, 2022 and the supplementary affidavit sworn on November 9, 2022 both by DT Muyaa, Advocate; and the submissions dated November 4, 2022 in which the applicants contend that: the appeal raises substantial matters of general public importance that transcend the parties; the Judges of Appeal delivered contradicting judgments whose drafts were amended before they were re-circulated; and that the complaint concerned the wider question of administration of justice in the Court of Appeal;
3.
Upon considering the applicants’ further grounds that the mode of assessment of advocates fees after certification of costs in a Party & Party Bill of Costs did not arise directly in the appeal as it was not one of the grounds of appeal; that by requiring the Taxing Master to use Kshs 201,981,424.00 as the value of the subject matter without any appeal the Court of Appeal reduced the fees by more than 90% thereby interfering with property rights already accrued and without applying the doctrine of res judicata; and that the general public and specifically the legal profession will benefit from determination of these issues;
4.
Upon perusing the respondents’ replying affidavit sworn on November 30, 2022 by Vincent Oweya, the respondents’ Legal Officer; and their submissions dated December 14, 2022, which oppose the application on the grounds that the application does not raise any matter of general public importance to warrant the review and certification being sought; that the sole question is on the subject value principle of taxation of the Bill of Costs; that there is no contradiction in the judgment of the Court of Appeal; that the issues raised have no bearing on the public interest transcending the parties. The respondents rely on this court’s decision in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013]eKLR and Christopher Onyango & 23 others v Heritage Insurance Company Limited [2021] eKLR to buttress their arguments;
5.
Bearing in mind the provisions on this court’s jurisdiction under article 163(4)(b) of the Constitution, which grant this court jurisdiction to hear appeals from the Court of Appeal on matters of general public importance, and section 15B of the Supreme Court Act and rule 33(1) and (2) of the Supreme Court Rules, 2020 which provide for the right to review the Court of Appeal’s decision on certification of a matter as one of general public importance;
6.
Taking into account this court’s guiding principles on certification of a matter as one involving general public importance arising from the decision in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (supra); and
7.
Noting that the genesis and the main contention by the applicants in the initial suit is the taxation of their advocate-client bill of costs and specifically, the value of the subject matter, the Court of Appeal in its judgment having set aside the ruling of the Employment and Labour Relations Court for failure by the taxing officer to compute the instruction and getting up fee, respectively, as provided in the Advocates Remuneration Order resulting in an excessive award of Kshs 87,139,560.45, almost half the decretal sum of Kshs 201,981,424.50;
8.
We have considered the application, affidavits, submissions filed and the issues proposed to be certified as involving great public importance and now opine as follows:
i.
On whether the Court of Appeal may deliver a judgment without reading the record of appeal and whether judges did not read each other’s draft judgments, we find this to be a matter of apprehension and/or speculation, and not a matter of general public importance;
ii.
On the Court of Appeal’s delivery of three separate contradicting judgments, we have perused the appellate court’s judgment and the resulting orders and fail to see any contradiction as argued by the applicant, and none was pointed to us;
iii.
On the questions whether the Court of Appeal can hear an appeal in the absence of a notice of appeal; whether parties have a right to equal protection, enjoyment and benefit of the law; and the doctrine of res judicata, this court, just like superior courts below it has addressed and indeed settled those issues;
iv.
As for the manner in which advocates’ fees are to be determined after a Certificate of Costs is given in a Party & Party Bill of Costs, there is apparent discordance between increasing the certified party and party costs by one half or filing and taxing an Advocate-Client Bill of Costs. The Court of Appeal appreciated this dilemma and proposed, rightly so, that the appellate court should, through an expanded bench, have the first opportunity to resolve the issue, before escalating to this court. We agree with the Court of Appeal that this was not a matter that directly arose out of the appeal.
v.
The applicants’ taxation of their advocate-client bill of costs and specifically, the value of the subject matter, was a contest between the parties and cannot be a matter of general public importance that would transcend the parties; A mere apprehension of a miscarriage of justice, is a matter most apt for resolution in the lower superior courts, and is not a proper basis for granting certification for an appeal to the Supreme Court.
vi.
We are satisfied that the Court of Appeal correctly interrogated the applicants’ proposed issues under the threshold set by this court in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (supra) in arriving at its decision.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/29/eng@2023-04-21
Application E001 of 2023,Kenya Agricultural Research Institute v Kariuki & 16 others (Application E001 of 2023) [2023] KESC 25 (KLR) (Civ) (21 April 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",21 April 2023,2023.0,Nairobi,Civil,Kenya Agricultural Research Institute v Kariuki & 16 others,[2023] KESC 25 (KLR)               ,,"Brief facts
The instant notice of motion application sought the extension of time within which to file and serve a notice of appeal. The applicant was aggrieved by two related decisions of the Court of Appeal and preferred an application for review. The applicant being dissatisfied with the decision of the Court of Appeal in dismissing its review application filed a notice of appeal dated May 11, 2022, on May 17, 2022, five (5) days late and served the same on the respondent on May 20, 2022.
The applicant claimed that the delay was inadvertent as it was due to the complexity of the issues as well as seeking approval following its internal protocols being a State corporation. Further, that the failure to file and serve the notice of appeal within time was also not intentional but due to counsel’s failure to advise the court clerk of the urgency of the matter and the deadline of May 12, 2022.
Issues
What were the guiding principles in extension of time and whether a delay of 7 months in filing an application for certification without explanation was reasonable. 
","Upon perusing the notice of motion by the applicant dated January 20, 2023 and filed on January 26, 2023, anchored on rule 15(2) of the Supreme Court Rules, 2020 seeking for extension of time within which to file and serve a notice of appeal and costs of the application; and
2.
Upon considering the grounds on the face of the application and the two supporting affidavits both sworn on January 20, 2023 by Albert Wafula Munyakho, the applicant’s learned counsel and the learned counsel’s court clerk Onesmus Kisinga together with written submissions dated January 20, 2023 and filed on January 26, 2023, we note that the applicant was aggrieved by two related decisions of the Court of Appeal in Civil Appeal No 271 of 2015 Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute and Civil Appeal No 315 of 2015 Kenya Agricultural Research Institute v Peter Wambugu Kariuki & 16 others delivered on October 18, 2018 and December 21, 2018 respectively and preferred an application for review. The applicant being dissatisfied with the decision of the Court of Appeal delivered on April 28, 2022 in dismissing its review application, filed a notice of appeal dated May 11, 2022, on May 17, 2022, five (5) days late and served the same on the respondent on May 20, 2022. Applicant’s counsel contends that it was upon receiving instructions in January, 2023 to proceed with seeking certification in order to pursue an appeal that they noticed the error. Counsel relies on the cases of Seventh Day Adventist Church East Africa Ltd & 2 Others v Masosa Construction Company [2006] eKLR and Commissioner of Police & 2 others v Joseph Mburu Gitau & 641 others [2019] eKLR by the Court of Appeal to urge that the delay was inadvertent as it was due to the complexity of the issues as well as seeking approval following the applicant’s internal protocols being a state corporation. Further, that the failure to file and serve the notice of appeal within time was also not intentional but due to counsel’s failure to advise the court clerk of the urgency of the matter and the deadline of May 12, 2022.
3.
The applicant contends that the intended appeal raises grounds of general importance as the impact of the two conflicting decisions of the Court of Appeal arising from the same subject matter create huge public interest in the certainty, consistency and overall resolution of the disputes within the Judiciary. Further, relying on the decision in John Ochanda v Telkom Kenya Limited; SC Motion No 24 of 2014 [2014] eKLR, it is contended that the respondents, having been served with the notice of appeal on May 20, 2022, have been aware of the applicant’s intention to appeal to the Supreme Court and will not suffer any prejudice which cannot be adequately compensated by an order of costs.
4.
Upon perusing the respondents’ replying affidavit sworn by Peter Wambugu Kariuki, the 1st respondent, on February 3, 2023 and filed on February 7, 2023 together with submissions dated February 6, 2023 and filed on February 7, 2023, we note that the respondents contend inter alia that if the applicant found the two decisions of the court not to be legally sound, it should have appealed rather than sought to review the same; that contrary to its allegation, by the time the applicant elected to seek review, it had understood the import and purport of the two judgments; that the issues raised in the two Judgments are straightforward and not complex. Further, that the period between delivery of the judgments in the two related appeals in late 2018, filing and serving the notice of appeal on May 20, 2022 to January 2023 is too inordinate and has not been adequately explained; that no official of the applicant has sworn an affidavit to explain the delay and the allegation of the applicant’s internal approval protocols; and that it is mischievous for the applicant in the draft application for certification to seek to appeal both against the ruling delivered on April 28, 2022 and against the Judgment delivered on December 21, 2018 as an alternative prayer.
5.
The respondents further contend that the mere existence of conflicting judgments does not qualify a matter to be of general public importance; filing of documents in the Court of Appeal are done online and nothing stopped the applicant from filing its notice of appeal on the e-filing portal within the prescribed time. Further, the respondents point out that the decretal sum of Kshs 6,942,616.70 deposited in a joint interest-earning account pending determination of the applicant’s application for review, by a letter dated August 2, 2022, the parties agreed to have it released to the respondents, which means the judgment of the Court of Appeal has been fully executed rendering the intended appeal a mere academic exercise. Further, that whether or not an appeal is arguable is not one of the principles which a court must consider when dealing with an application for extension of time; and that the judgment of the Court of Appeal having been executed the applicant will not suffer any loss as it has paid the decretal sum save for costs.
We now pronounce as follows, bearing in mind all these submissions:
6.
Appreciating that the court, under rule 15(2) of the Supreme Court Rules, 2020 has unfettered discretionary powers to extend the time limited by the rules or by any of its decisions; that any person intending to appeal to the court is required by rule 36(1) of the Supreme Court Rules, 2020, to file a notice of appeal within fourteen days from the date of the decision intended to be challenged;
7.
Restating the guiding principles in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others SC Application No 16 of 2014; [2014] eKLR enunciated as follows:
1.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
2.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
3.
Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
4.
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
5.
Whether there will be any prejudice suffered by the respondents if the extension is granted;
6.
Whether the application has been brought without undue delay; and
7.
Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
8.
Further restating the principles in the case of County Executive ofKisumu v County Government of Kisumu & 8 others SC Civil Application No 3 of 2016; [2017] eKLR where we emphasized the need for the applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the court; as well as the case Base Titanium Limited v County Government of Mombasa & another SC Petition (App) No 22 of 2018 [2019] eKLR, was echoed in GEO Chem Middle East v Kenya Bureau of Standards [2020] eKLR where we held that the principles for grant of an order of extension of time are that an applicant must give sufficient reasons for any delay and that the period of delay is nonetheless an important consideration in the court’s exercise of discretion to grant or deny the extension.
9.
Noting that in spite of the respondents’ contentions, the initial delay of five days in filing the notice of appeal is not inordinate and has been sufficiently explained by counsel. Be that as it may, the delay that concerns us is from service of the notice of appeal on May 20, 2022 to January 18, 2023 when the applicant elected to pursue an appeal before the Supreme Court, and in noting the error filed the instant application; a period of over seven (7) months. Though the Supreme Court Rules, 2020 do not prescribe a timeline within which a party must seek certification, a period of over seven(7) months without explanation cannot be termed as reasonable. Rule 38 of the Supreme Court Rules, 2020 requires the institution of an appeal within thirty (30) days from either the date of filing the notice of appeal or after the grant of certification, demonstrating the need to move with speed in pursuing an appeal before this court.
10.
Further noting that the applicant asks the court to apply the decision in Seventh Day Adventist Church East Africa Ltd & 2 others v Masosa Construction Company [2006] eKLR to find that the applicant, being a state corporation, had to follow its internal protocols before arriving at the decision to pursue an appeal and delays in making such decisions would be inevitable; that this was coupled with the time taken to understand and appreciate the effect of the two Judgments of the Court of Appeal;
11.
Bearing in mind that the respondents were served on May 20, 2022, they have been aware all along of the applicant’s intention to appeal. We however, also take note that by a letter dated August 2, 2022, the parties agreed to have the sum of Kshs 6,942,616.70 deposited in a joint interest-earning account pending determination of the applicant’s application for review, released to the respondents in fulfilment of the Judgment of the Court of Appeal.
12.
Considering that extension of time is an equitable remedy, the grant of which involves the exercise of judicial discretion and that equity aids the vigilant and not the indolent, we have great difficulty reconciling a party that lodges its notice of appeal on May 17, 2022, on August 2, 2022 releases funds to its opponents in fulfilment of the Judgment of the Court of Appeal yet waits another five (5) months before arriving at a decision to pursue an appeal to this court by way of certification. Reiterating our finding in Hassan Nyanje Charo v Khatib Mwashetani & 3 others; SC Application 15 of 2014[2014] eKLR the concept of timelines and timeliness is a vital ingredient in the quest for efficient and effective governance under the Constitution which must be adhered to.
13.
For the aforestated reasons we find that the applicant’s explanation in the circumstances is neither reasonable nor satisfactory and great prejudice will be occasioned to the respondents if the application was to be allowed.
14.
Accordingly, we are persuaded that in the circumstances, the instant application lacks merit and hereby make the following orders:
a.
The notice of motion dated January 20, 2023 and filed on January 26, 2023 seeking to extend time within which to file a notice of appeal be and is hereby dismissed.
b.
The applicant to bear the costs of the application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/25/eng@2023-04-21
Petition 8 of 2020,Law Society of Kenya v Communications Authority of Kenya & 10 others (Petition 8 of 2020) [2023] KESC 27 (KLR) (21 April 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",21 April 2023,2023.0,Nairobi,Civil,Law Society of Kenya v Communications Authority of Kenya & 10 others,[2023] KESC 27 (KLR)               ,,"A. Introduction
1.
The subject matter of this appeal is the proposed installation of a device management system on mobile networks by the 1st respondent, Communication Authority of Kenya.
2.
The Law Society of Kenya, the appellant herein, has challenged the decision of the Court of Appeal in its judgment of April 24, 2020, which allowed the 1st respondent to continue developing the Device Management System hereinafter referred to as DMS on condition that the guidelines or regulations on its installation be subjected to public participation.
3.
The appellant instituted the appeal pursuant to article 163(4)(a) of the Constitution, section 15(2) of the Supreme Court Act 2011 and rule 9(1), 33 (2) of the Supreme Court Rules 2020. The appellant also alleges infringement of rights as provided under articles 10, 22 (3) (b), 24, 31, 46 and 47 of the Constitution.
B. Background
4.
In 2011, the East Africa Communications Organization, in a bid to counter the global theft of mobile devices and the proliferation of counterfeit or illegal devices recommended that the mobile service operators in the member countries would implement an Equipment Identification Register (EIR) which is an International Mobile Equipment Identification (IMEI). Following various stakeholder consultations, the 1st respondent implemented the first phase of its strategy to deal with stolen and counterfeit devices. Consequently, Mobile Service Providers, handset vendors and the 1st respondent entered into a memorandum of understanding on verification of genuine mobile handsets in Kenya which resulted in the switch off of 1.89 million illegal mobile handsets by September 30, 2012.
5.
Despite the initial phase’s success, counterfeit phone vendors grew more sophisticated and according to the submissions of the 1st respondent, this necessitated a more robust strategy to deal with the issue. In 2016, the 1st respondent rolled out steps towards the implementation of the Device Management System (DMS) which is a centralized Equipment Identification Register that would have access to the International Mobile Equipment Identification database by mobile network operators.
6.
In undertaking the implementation of the Device Management System, the 1st respondent engaged with Mobile Network Operators on various dates and had a series of meetings to discuss the process of implementation. Following the meetings, there were a series of letters issued by 1st respondent to the Mobile Network Operators which included the 7th, 8th and 9th respondents. By letters dated January 31, 2017 and February 6, 2017, the 1st respondent requested the Mobile Network Operators to provide it with access to information on the International Mobile Equipment Identification (IMEI), International Mobile Subscriber Identity (IMSI) which is the number assigned by the 1st respondent for uniquely identifying the subscribers and Mobile Station Integrated Subscriber Directory number (MSISDN), a number assigned to each subscriber by a mobile service provider. The purpose of the request was for 1st respondent’s technical team to conduct a survey and installation of the Device Management System. This precipitated the filing of a constitutional petition before the High Court and subsequently an appeal to this court.
","D. Preliminary Objection: Submissions
24.
When this matter came before the court for formal hearing of oral submissions on October 19, 2022, Counsel for the 1st respondent Prof Githu Muigai raised a preliminary objection on the issue of jurisdiction. Having heard the submissions of all parties, it is the opinion of the court that the preliminary matter ought to be disposed of at this stage, before going into the merits or otherwise of the appeal itself.
25.
The 1st respondent has stated that appellant has wrongfully invoked the jurisdiction of this court, stating it is not a proper party before this court and that even where the appellant claimed it is exercising its statutory mandate, a reading of the Supreme Court Act and regulations show that the appellant does not constitute ‘a person’ who has locus. The 1st respondent made reference to relevant case law, including, Elijah Sikona and George Pariken Narok, on Behalf of Trusted Society of Human Rights Alliance v. Mara Conservancy and Five Others [2014] eKLR and the case of Mumo Matemu & Trusted Society of Kenya Rights Alliance [2014] eKLR. The 1st respondent urged that the appellant had filed a fresh petition and not an appeal from the Court of Appeal; and further that it did not meet the requirements of article 163(4) of the Constitution as in any event it required certification.
26.
The appellant has opposed the preliminary objection and filed written submissions on the same. The appellant submitted that article 22 and 258 of the Constitution was not only applicable to the High Court but also to the Supreme Court. The appellant argued there was a wide-ranging locus provided for in rule 36 of the Supreme Court Rules, that allowed for its participation in the appeal. Additionally, the appellant submitted that no law forbids a non-party like the appellant from appealing from a judgment in rem in public interest litigation. Counsel for the appellant further asserted that the petition which challenges the rights to privacy, is admissible under article 163(4)(a) of the Constitution. In support of its submissions, the appellant cited the case of Mumo Matemu vs Trusted Society of Human Rights Alliance and 5 others [2014] eKLR.
27.
The appellant further distinguished this court’s decision in the cases of Jeniffer Koinante Kitarpei v Alice Wahito Ndegwa & another [2015] eKLR and Board of Management Visa Oshwal Primary School v Shree Visa Oshwal Community Nairobi Registered Trustees & 4 others [2022] eKLR which neither involved an appeal as of right under article 163(4)(a) of the Constitution nor invoked article 22 and 258 of the Constitution or rule 36 of the Supreme Court Rules unlike in the instant appeal. The appellant further submitted that its mandate, under section 4 of the Law Society of Kenya Act, is to uphold the Constitution of Kenya and advance the rule of law and the administration of justice, and to protect and assist the members of the public in Kenya in matters relating to or ancillary or incidental to the law.
E. Finding
28.
Upon considering the preliminary objection raised in limine by the 1st respondent and upon hearing the oral arguments by the parties in court, and the submissions in opposition filed by the appellant, the issue for determination is whether this court has jurisdiction to hear and determine this appeal and whether the appellant is a proper party before this court and has locus standi in this appeal. This court in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR held that the issue of locus standi raises a point of law which touches on the jurisdiction of the court, and it should be resolved at the earliest opportunity.
29.
In filing the instant appeal, the appellant invoked the court’s jurisdiction under article 163(4)(a) of the Constitution and rule 36 of the Supreme Court Rules. The appellant further invoked article 22 and 258 of the Constitution to give it a legal standing in this matter. We now turn to consider the jurisdictional ambit invoked by the appellant in filing the instant appeal.
30.
Firstly, appeals raising constitutional issues and filed by the appellant as a matter of right under article 163(4)(a) of the Constitution must meet the constitutional threshold on jurisdiction of this court. In the case of Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] eKLR the court’s jurisdictional test was underscored giving rise to following principles for consideration. The principles being, whether an appeal raises a question of constitutional interpretation or application, whether the constitutional issues were canvassed in the superior courts and whether the determination of the constitutional issues has progressed through the normal appellate mechanism so as to reach this court by way of an appeal filed under article 163(4)(a) of the Constitution.
31.
Additionally, in the cases of Gitirau Peter Munya vs Dickson Mwenda & 2 others [2014] eKLR and Lawrence Nduttu & 6000 others v Kenya Breweries Limited & another [2012] eKLR this court determined the question of jurisdiction and pronounced itself as follows:
‘The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation.’
32.
The crux of the appellant’s case before us is that it challenges the determination of the judgment of the Court of Appeal on the grounds that the learned judges erred in applying the wrong standard of review in appeals requiring constitutional interpretation and application. The appellant maintained that the Court of Appeal made inferences, findings and conclusions that were inconsistent with the evidence on record while ignoring pleadings, evidence and submissions. The appellant further challenged that the Court of Appeal failed to find that the DMS to be rolled out by the 1st respondent limits the right to privacy and faulted the finding of the court that it was premature for the 1st respondent to adjudicate public participation.
33.
Gleaning from the record, we find that the issues for determination before the superior courts and more so the Court of Appeal relate to the application of the Constitution in relation to the installation of a Device Management System by the 1st respondent which will affect millions of mobile phone subscribers. And with this, came the challenge of the intent, utility, procurement and usage of the system. Be that as it may, the question that arises now before us, is whether the party adjudicating this matter is properly before this court.
34.
The appellant relied on rule 36 of the Supreme Court Rules which provides wide locus for any party to institute an appeal before this court. Rule 36 stipulates that; ‘A person who intends to make an appeal to the Court shall file a Notice of Appeal within fourteen (14) days from the date of judgment or ruling is which is the subject of appeal.’ The scope of who ‘a person’ is, should mirror the jurisdiction of this court. Article 163(3)(a) and (b) of the Constitution provides that the jurisdiction of the court shall be exclusive original jurisdiction to hear and determine disputes relating to elections to the office of the President and appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation.
35.
Therefore, flowing from the constitutional provisions on the jurisdiction of this court, the definition of ‘a person’ seeking to file an appeal only extends to a party who is aggrieved by a decision issued against him by the Court of Appeal and wishes to prefer an appeal to the Supreme Court. The definition does not open the door for any passer-by who is disgruntled with a decision delivered by the appellate court to approach this court. This also extends to matters relating to public interest. Furthermore, there is difficulty in granting relief at the appellate stage to a party who did not litigate those issues before the superior courts. A person in this context should therefore be a party with locus standi in the matter.
36.
The Court of Appeal in the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2014] eKLR held as follows on the sanctity of a suit in court:
‘A suit in court is a solemn process, owned solely by the parties. This is why there are laws and rules, under the Civil Procedure Code, regarding parties to suits, and who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently, where a person not initially a party to a suit is enjoined to a suit as an interested party, this new party cannot be heard to seek to strike out the suit on the grounds of defective pleadings.’
37.
Further, in the case of Kingori v Chege & 3 others [2002] 2 KLR 243 the High Court described a proper party in a suit as follows; ‘A proper party is one who has a designed subsisting direct and substantive interest in the issues arising in the litigation which interest will be recognisable in the court of law being an interest, which the court will enforce.’ We agree with these observations of the superior courts regarding this issue of who can be a proper party before a court. Therefore, while we recognise the objectives of the appellant as provided for in section 4 of the Law Society of Kenya Act, 2014, we find that it is not and cannot be a proper party in this appeal.
38.
Lastly, the appellant invoked the provisions of articles 22 and 258 of the Constitution in preferring the appeal. Article 22 of the Constitution provides that ‘every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.’ The Court of Appeal in Mumo Matemu cited above described that ‘a person’ in this regard, includes one who acts in the public interest. Be that as it may, we find that while article 22 of the Constitution provides a pathway for parties to contest the denial, violation or infringement of a right or fundamental freedoms, the proper avenue is at the High Court which grants that court jurisdiction to determine questions of denial, violation or infringement of a right or fundamental freedom.
39.
In view of the above, we determine that this court does not have jurisdiction to hear and determine the instant petition of appeal. Similarly, the cross appeal finds itself with no legs to stand on.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/27/eng@2023-04-21
Application E008 of 2023,Megvel Cartons Limited v Diesel Care Limited & 2 others (Application E008 of 2023) [2023] KESC 24 (KLR) (Civ) (21 April 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",21 April 2023,2023.0,Nairobi,Civil,Megvel Cartons Limited v Diesel Care Limited & 2 others,[2023] KESC 24 (KLR)               ,,"Upon reading the notice of motion by the applicant dated February 28, 2023 and filed on March 2, 2023, brought pursuant to article 163(4)(a) of the Constitution, sections 21 (1)(a) and 24 of the Supreme Court Act, 2011 as well as rules 3(5), 31 and 32 of the Supreme Court Rules, 2020 for orders that;
1.
Spent…
2.
Spent…
3.
Spent…
4.
Pending the hearing and determination of Petition No E003 of 2023 (the Appeal) this court be pleased to issue an order of injunction restraining the 1st respondent herein whether by themselves, their agents, servants, employees, invitees and/or otherwise whomsoever from entering upon or trespassing, disposing of, dealing, alienating, occupying or in any way whatsoever interfering with the applicant’s proprietary rights including the right to quiet possession and enjoyment over all that piece of land known as LR 25064 (IR 85088) (Formerly known as LR No 1504/11 (IR 85400)) situate in Mavoko Township, Machakos County (the suit property), before its surrender for change of user;
5.
Pending the hearing and determination of the appeal this court be pleased to stay execution of the judgment and decree of the ELC (Angote, J) delivered on January 26, 2018 in Machakos ELC No 166 of 2011 as affirmed by the Court of Appeal decision on February 17, 2023 in Civil Appeal No 70 of 2018; and
6.
Costs of and incidental to this application do abide the outcome of the main appeal.
2.
Upon considering the grounds in support of the application and the averments contained in the supporting affidavit sworn on February 28, 2023
3.
Upon considering the applicant's submissions dated February 28, 2023 and filed on March 2, 2023, to the effect that, this court has jurisdiction to determine the appeal under article 163(4)(a) of the Constitution as it raises important arguable constitutional issues on account of breach of the applicant’s property rights under article 40; that the Court of Appeal breached the applicant’s right to fair hearing under article 50(1) as read with article 25(c) of the Constitution; that the Court of Appeal’s findings were in contravention of the principle of stare decisis under article 163(7); and that the Court of Appeal abdicated its duty under article 164(3) to re-evaluate the evidence on record and arrive at its own independent conclusions; and
4.
Further, noting the applicant’s submission that it is faced with two significant immediate threats of eviction from the suit property being, the application by the 1st respondent to forcefully evict the applicant and criminal charges proffered against the applicant’s director for the offences of forgery and forcible detainer in Criminal Case No 238 of 2019 Republic v Prasul Jayantilal Shah; that the applicant has been in occupation of the suit property where it has been operating a factory for the past 12 years and it has made significant investment therein to the tune of Kshs 1.2 billion and presently employs over 700 Kenya citizens; that should it be evicted from the suit property, it stands to suffer irreparable loss as well as the loss of livelihood of its employees; and that it is in the interest of justice and in public interest to grant the orders sought; and
5.
Also noting the 1st respondent’s grounds of opposition and submissions dated March 10, 2023 and filed on even date wherein it contends that;
i.
The single core issue before the ELC and Court of Appeal was which of the two titles of the suit property was the genuine one, whether that held by the applicant or that of the 1st respondent. Both superior courts below held that the applicant’s title was a forgery. For this reason, the applicant did not plead and/or argue any constitutional issues for interpretation and/or application in the ELC or in the Court of Appeal.
ii.
This court lacks jurisdiction to hear and determine both the application and the appeal for the reason that the appeal does not meet the jurisdictional threshold of the Constitution under article 163(4)(a) as read with section 15(2) of the Supreme Court Act as it is not an appeal involving the interpretation and/or application of the Constitution.
iii.
The application and appeal are, in the result improperly before this court and incurably defective as there is no automatic right of appeal and leave to appeal has not been sought therefore the petition ought to be struck out.
iv.
Since the petition upon which the application is premised is fatally flawed, according to the 1st respondent, the application lacks merit and the applicant has failed to satisfy the principles for the grant of the relief of interlocutory injunctive orders and stay of execution.
6.
Bearing in mind that the 2nd and 3rd respondents have not filed any responses to both the application and the petition; and","Having considered the application, grounds of opposition, and submissions before us, we now opine as follows:
i.
This being an application for stay of execution, it is well established that an applicant must satisfy the court that the appeal is arguable and is not frivolous; that unless the orders of stay are granted, the appeal will be rendered nugatory; and thirdly that, it is in the public interest that the order of stay be granted. See Gatirau Peter Munya v Dickson Mwenda & 2 others, SC Application No 5 of 2014, [2017] eKLR.
ii.
The instant motion was filed in a separate file being No E008 of 2023 from the petition of appeal which is in No E003 of 2023 and which we have taken the liberty to peruse, to satisfy ourselves as to its arguability.
iii.
We emphasized the need to do this in Kenya Hotel Properties Limited v Attorney General & 5 others, SC Application No 27 of 2020; [2020] eKLR, as follows:
“
Arguability of an appeal would entail this court looking at the record and the petition of appeal and determine, without finality but at a prima facie level, whether the appeal has substance and/or is not made of straw. It also entails interrogating its foundation and confirming that it is not built on quicksand.” [our emphasis]
iv.
We reiterate the well-known line, that jurisdiction is everything and that without it, a court has no power to make one more step; that a court’s jurisdiction flows from either the Constitution or legislation or both; and that jurisdiction cannot be expanded through judicial craft or innovation. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR.
v.
It follows that we must, in limine, be satisfied that the applicant has properly invoked the jurisdiction of this court; and
vi.
Guided by the principles set out by this court in numerous cases, we restate, first, that an appeal within the ambit of article 163(4)(a) of the Constitution is to be one founded on cogent issues of constitutional controversy; second, that the mere allegation that a question of constitutional interpretation or application is involved, without more, does not automatically bring an appeal within article 163(4)(a); third, that for an appellant to bring an appeal under this article, it must be shown that the issues determined by the Court of Appeal arose from the High Court or any court below it and involved the interpretation or application of the Constitution; and lastly, that where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to this court under the provisions of article 163(4)(a). See Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Petition No 3 of 2012; [2012] eKLR; and Erad Suppliers & General Contractors Limited v National Cereals & Produce Board, SC Petition No 5 of 2012; [2012] eKLR.
vii.
We note in the above context that, the applicant’s case before the two superior courts below did not involve the interpretation and application of the Constitution. The gravamen of the case before those courts was the validity of the two titles held by the applicant and the 1st respondent; and the question to be answered was which one of the two was the genuine legitimate title. A perusal of the judgment of the Court of Appeal would indeed show that save for the introductory statement that “The right to property is a right enshrined in the Constitution under article 40.”, at no point did the court venture to address any constitutional question, because there was none. Likewise, the Judgment of the ELC, did not address any constitutional issues.
viii.
In the petition before this court, the applicant now faults the Court of Appeal for allegedly violating articles 25(c), 50(1), 163(7) and 164(3) of the Constitution. Among the issues the applicant proposes to be determined in the petition is whether a surrender for purposes of a change of user transmutes private land into public land under article 62(c) of the Constitution making it available for allocation by the government to third parties.
ix.
Even though the applicant now alludes to infringement of constitutional rights, no such claim was made before both superior courts below. The issue of the validity of the titles, which involved a factual examination of the origin of the two titles, cannot mutate at this stage into a constitutional question, without the benefit of arguments by the parties and determination before the courts below.
x.
In the circumstances, we come to the conclusion that the first limb for the grant of the relief of stay of execution has not been satisfied and further that the court’s jurisdiction under article 163(4)(a) of the Constitution has improperly been invoked.
xi.
For the foregoing reasons, we must find that we have no jurisdiction to determine the appeal and must down tools as the three conditions precedent laid in Gatirau Peter Munya v Dickson Mwenda & 2 others have not been met.
xii.
In view of the circumstances of this case, we follow the course we adopted in Trattoria Limited v Joaninah Wanjiku Maina & 3 others, SC Petition (Application) No E029 of 2022, where the court’s power under section 18 of the Supreme Court Act to summarily dismiss a petition, reference or an application, which are wholly defective was restated. Like in that application, we have found here that the court lacks jurisdiction to entertain both the application and the appeal.
xiii.
We take this course fully alive to the well-known principle that the question of jurisdiction can be raised at any point in the proceedings, on appeal and even suo moto. The foundation of the petition of appeal is indeed built on quicksand. Its fate, no matter how long it is delayed, is inevitable. Consequently, we find that the notice of motion dated February 28, 2023 lacks merit and is hereby dismissed for want of jurisdiction. Likewise, and for that very reason, the petition of appeal is incompetent and is also struck out.
xiv.
As costs follow the event and are awardable as a matter of discretion, we direct that costs in this application shall be paid by the applicant to the 1st respondent.
8.
Accordingly, we make the following orders:
a.
The notice of motion dated February 28, 2023 is hereby dismissed.
b.
The petition of appeal No E003 of 2023 dated February 27, 2023 is hereby struck out for want of jurisdiction.
c.
The applicant shall bear the costs of this application.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/24/eng@2023-04-21
Petition (Application) 2 (E002) of 2021,Okoiti & 2 others v Attorney General & 14 others (Petition (Application) 2 (E002) of 2021) [2023] KESC 31 (KLR) (21 April 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",21 April 2023,2023.0,Nairobi,Civil,Okoiti & 2 others v Attorney General & 14 others,[2023] KESC 31 (KLR)               ,,"Brief facts
The instant application sought the review and vacation of the order on costs against the applicant in the ruling delivered by a single judge of the court and an order that there be no costs whatever the outcome of the application. The applicant claimed that the judge awarded costs against the applicant purely on the ‘costs follow the event' rule and without any finding of bad faith, ill motive, misconduct or frivolity on its part. The applicant further claimed that the single judge’s determination on costs was infirm because the judge failed to consider all relevant factors necessary to the determination of costs payable by a losing party. The applicant also claimed that the judge awarded costs to the 13th and 14th respondent who had, through their advocates, decided not to participate in the proceedings and instead left the matter entirely in the hands of the court.
Issues
Whether public interest litigants should seek costs should they succeed in the litigation. 
What was the primary consideration in constitutional litigation when awarding costs? 
Whether costs could be awarded to a party that had not spent time or resources in prosecuting or defending a matter. 
Whether a larger bench of the Supreme Court could review the decision of a single judge of the Supreme Court where an injustice was apparent in the decision. 
","1.
Upon perusing the notice of motion by Katiba Institute, the applicant, dated February 28, 2023 brought pursuant to section 23(3C) (sic) for review and to vacate the order on costs against the applicant in the Ruling delivered by a single judge of this court (Mwilu DCJ & VP) onFebruary 17, 2023 and an order that there be no costs whatever the outcome of this application; and
2.
Upon considering the grounds in support of the application and the supporting affidavit of Christine Nkonge, the Executive Director of the applicant, wherein the applicant claims that:
i.
the applicant understands that a single judge’s determination of an application seeking review of a decision made by the Registrar- under rule 6(3) of this Court’s Rules is final but that the applicant is only aggrieved with the order on costs and not the substantive decision;
ii.
the single judge awarded costs against the applicant purely on the ‘costs follow the event rule’ and without any finding of bad faith, ill motive, misconduct or frivolity on its part;
iii.
the single judge’s determination on costs is infirm because the Judge failed to consider all relevant factors necessary to the determination of costs payable by a losing party and failed/and or improperly exercised her discretion by failing to take into account relevant past judicial determinations on costs;
iv.
that the single judge awarded costs to the 13th and 14th respondent who had, through their advocates, Messrs Nderitu & Partners, decided not to participate in the proceedings and instead left the matter entirely in the hands of the court; and
3.
Also noting the applicant’s submissions dated February 28, 2023 and filed on March 1, 2023 wherein it is contended that this court can review its decision undersection 23(3C) of the Supreme Court Act irrespective of the finality clause in rule 6(3) of the Supreme Court Rules; its submission that the single judge’s decision is one for review as the decision on costs was exercised improperly; further, that this court has in past decisions, found that though costs follow the event, public interest matters are exempted from the rule with reliance placed on Jasbir Singh Rai v Tarlochan Singh Rai, SC Petition 4 of 2012 [2014] eKLR (the Rai case) as well as Mumo Matemu v Trusted Human Rights Alliance & 5 others, SC Civil Application No. 29 of 2014 [2014] eKLR and Kenya Revenue Authority v Export Trading Company Ltd, SC Petition 20 of 2022 [2022] to buttress that point and lastly; that the applicant has argued that the matter was filed in the public interest, presented a momentous issue and that awarding costs against a bona fide public interest litigant without evidence of bad faith on its part is also inconsistent with this court’s stated policy and practice.
4.
In the above context, we now opine as follows:
i.
The sole issue before thiscourt is whether the single judge exercised her discretion judiciously in finding that the applicant should bear the costs of the 1st, 2nd ,3rd 13th, 14th and 15th respondents and that the said decision should be reviewed. We note in that regard that this court has jurisdiction under section 23(2C) of the Supreme Court Act, 2011 to review the decision of a single judge. Section 23(2C) reads in part:
“
A party aggrieved by the decision of a single judge or two judges may apply for review of the decision by five or more judges of the court.”
ii.
We are also alive to rule 6(3) of the Supreme Court Rules, 2020 which provides that:
“
A determination by the single judge on the decision of the Registrar shall be final.”
iii.
In Parliamentary Service Commission v Martin Nyaga Wambora & others, SC Application No 8 of 2017 [2018] eKLR we came up with guiding principles for application (s) for review of a decision of the court made in exercise of discretion with one of the principles listed to be:
“The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise (sic) discretion and:
a.
as a result a wrong decision was arrived at; or
b.
it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.”
iv.
In the Rai case we addressed the issue of award of costs and specifically in public interest matters in the following terms:
“
(18)
It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously- exercised discretion of the court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior- to, during, and subsequent-to the actual process of litigation.” [Emphasis ours]
v.
Njoki SCJ’s finding in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others, SC Application No 29 of 2014 [2014] eKLR is also relevant to the determination of the present application as she explained the essence of public interest litigation by stating:
“Public interest litigation plays a transformative role in society. It allows various issues affecting the various spheres of society to be presented for litigation…In instances where claims in the interest of the public are threatened by administrative action to the detriment of constitutional interpretation and application, the court has discretion on a case by case basis, to evaluate the terms and public nature of the matter vis a vis the status of the parties before it…”
vi.
The Constitutional Court of South Africa in Biowatch Trust v Registrar Genetic Resources and others (CCT 80/08) [2009] ZACC 14 in addressing costs in matters filed in the public interest and alleging constitutional violations was of the view-and we agree-that:
“
Equal protection under the law requires that costs awards not be dependent on whether the parties are acting in their own interests or in the public interest. Nor should they be determined by whether the parties are financially well- endowed or indigent... The primary consideration in constitutional litigation must be the way in which a costs order would hinder or promote the advancement of constitutional justice.”
vii.
Public interest litigation aims to address genuine public wrongs where legal action is initiated for the enforcement and advancement of constitutional justice and public interest. While doing so, public interest litigants must not themselves fall into the temptation of seeking for costs should they succeed in the litigation because by doing so, self-interest, and not public interest, will be apparent and they would in such situations be amenable to an adverse order on costs should they not succeed. Again, as we have stated above and reiterated the finding by the Constitutional Court of South Africa in Biowatch, the primary consideration in public interest constitutional litigation should always be seen to be the need to promote access to justice and not self-interest per se.
viii.
Turning to the present application, we have to address section 23(2C) as well as rule 6(3) aforesaid as the application in which costs were awarded against the applicant arose from a decision by the Registrar and under rule 6(3) the decision of the single judge ought to be final. Would section 23(2C) be applicable in the circumstances? Two issues have been raised by the applicant as the basis for review of the single judge decision; the public interest litigation issue and the apparent erroneous grant of costs to the 13th and 14th respondents.
ix.
The grant of an order of costs to the 13th and 14th respondents portends no difficulty as it is obvious to us that they did not participate in any meaningful way and which would entitle them to costs. Costs are not awarded to a party that has not spent time or resources in prosecuting or defending a matter and the ‘costs follow the event’ principle would in the circumstances not be applicable. We are in the circumstances satisfied that, under section 23(2C) we have the jurisdiction to overturn the exercise of discretion by the single judge.
x.
On the award of costs to the remaining respondents, and whether the public interest litigation argument can be sustained, we have read the record as well as the single judge ruling. The nature of the litigation between the parties did not feature at all as the substance of the ruling was the timeline for filing of a notice of appeal to this court. The single judge found that the applicant had failed to adhere to that timeline without a plausible explanation. In the present application, it is argued that the intended appeal as well as proceedings before the superior courts below related to a public interest matter and so costs should not follow the event as ordered by the single judge. What was the public interest matter? The appointment of members of the National Land Commission and whether the Constitution was followed in that process. Furthermore, the Court of Appeal also directed the parties to bear their own costs and it would therefore be unjust for this court to penalize the applicant in any proceedings before us.
xi.
We are satisfied that the principle in the Rai case is applicable to the present application-that where an injustice is apparent in the single judge decision, a larger Bench can undo the injustice and the finality clause in rule 6(3) would not be a bar to a review of that decision more so on the narrow issue of costs. The public interest element in the case before the superior courts below is obvious and so the costs follow the event order was made in error by the single judge. In stating so, we are not in any way invalidating that rule because it serves a useful purpose in proceedings before this court.
xii.
In the circumstances, we are in agreement with the applicant that the proper order to have been made by the single judge is that there would not have been reason to order the applicant to pay costs to the respondents, and in the present application, the applicant is also not to benefit from an award of costs.
5.
Accordingly, we make the following orders:
a.
The notice of motion dated February 28, 2023 is hereby allowed.
b.
There shall be no order as to costs.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/31/eng@2023-04-21
Petition 18 (E020) of 2022,Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others (Petition 18 (E020) of 2022) [2023] KESC 28 (KLR) (21 April 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",21 April 2023,2023.0,Nairobi,Civil,Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others,[2023] KESC 28 (KLR)               ,,"Brief facts
The instant application sought to have the record of appeal dated April 19, 2022 and lodged on July 29, 2022 be struck out and the appeal dismissed. The applicants contended that the appellants had omitted pleadings/documents from their record of appeal that the court required to determine the appeal in the unlikely event the court went beyond the two certified questions of law and interrogates the factual findings by the Court of Appeal. The applicants further contended that they would have no legal avenue to introduce the omitted documents into the record, denying them a right to a fair trial, necessitating striking out of the record of appeal as the appropriate remedy.
The respondents argued that the notice of appeal was not one of the documents required to be included in the record of appeal; that the judgment of the Court of Appeal having been rendered on April 4, 2019, the respondents duly filed their notice of appeal as acknowledged by the Deputy Registrar on April 18, 2019; that the same was transmitted to the court on the same day;
Issues
Whether it was mandatory for an appellant to precede an application for review of certification by the filing of a notice of appeal. 
What was the purpose of a notice of appeal? 
What were the contents of a record of appeal to the Supreme Court? 
Whether failure to submit a notice of appeal that was stamped or endorsed by the Court of Appeal to the Supreme Court was fatal.
",".Upon perusing the notice of motion by the 3rd and 4th respondents dated December 2, 2022 and filed on December 5, 2022, pursuant to rules 3(5), 31, 36 (3), and 40(1)(i)(d) of the Supreme Court Rules, 2020 seeking to have the Record of Appeal dated April 19, 2022 and lodged on July 29, 2022 be struck out and the appeal dismissed; and
2.
Upon considering the grounds in support of the application; the supporting affidavit sworn on December 2, 2022 by Ateet Dinesh Jetha, written submissions dated December 5, 2022 and filed on even date; and rejoinder submissions dated December 19, 2022 and filed on even date; wherein the applicants contend that contrary to rule 40(1) of the Supreme Court Rules, 2020 the appellants have omitted pleadings/documents from their record of appeal that this court requires to determine the appeal in the unlikely event the court goes beyond the two certified questions of law and interrogates the factual findings by the Court of Appeal; that the appellants chose not to file the said documents despite this omission having been brought to their attention; that the respondents will have no legal avenue to introduce the omitted documents into the record, denying them a right to a fair trial, necessitating striking out of the record of appeal as the appropriate remedy;
3.
Upon considering the applicants’ further argument that this court lacks jurisdiction to determine the appeal as the notice of appeal filed by the appellants is fatally defective as it was neither stamped as received/filed by the Court of Appeal, endorsed by the Deputy Registrar of the said court nor transmitted to the Registrar of this court as required under rule 36 (3) of the Supreme Court Rules; that in any event since the title of the notice of appeal is indicated as relating to the application for certification and leave to appeal to this court, the same does not relate to the judgment delivered on April 4, 2019. The applicants rely on the Court of Appeal decision in Salama Beach Hotel Ltd v Kenyariri & Associates [2016] eKLR and this court’s decision in Bookpoint Limited v Guardian Bank Limited & another [2021] eKLR;
4.
Cognisant that the applicants had filed a notice of preliminary objection dated November 24, 2022 and filed on November 25, 2022 based on the same grounds and the 1st and 2nd respondents did not respond to the application though they had filed a replying affidavit to the main appeal;
5.
Upon considering the 5th and 6th respondents’ written submissions dated December 14, 2022 and filed on December 16, 2022 in support of the application, where they reiterate the averments by the applicants and affirm that the exclusion of the documents would be highly prejudicial to the respondents taking into account that the appellants failed to take advantage of rule 40(4) of the Supreme Court Rules to file the documents;
6.
Upon considering the appellants’ replying affidavits of Arvind Shah, Grace Odhiambo Odongo and Fredrick Kinyua Kamundi sworn on December 9, 2022 and filed on December 13, 2022 and the written submissions dated December 9, 2022 and filed on December 13, 2022 where they contend that the Record of Appeal presented in this matter contains all the documents as stipulated under rule 40 (1) of the Supreme Court Rules, 2020; that they are required to annex all documents relevant to determine the appeal and not to annex every document that has ever been filed since the dispute started; that in any case, exclusion ought not to warrant striking out of the entire appeal; in the alternative, if this court desires to obtain information that was part of the superior court’s record it may on its own motion call upon such files for its perusal; that the respondents having filed their responses by November 17, 2022 neither one of them raised any allegation that there are material documents that were missing which would be prejudicial upon them for it was an afterthought; and
7.
Upon further consideration of the appellants’ argument that the notice of appeal is not one of the documents required to be included in the record of appeal; that the judgment of the Court of Appeal having been rendered on April 4, 2019, the appellants duly filed their Notice of Appeal as acknowledged by the Deputy Registrar on April 18, 2019; that the same was transmitted to this court on the same day through this court’s sub-registry in Mombasa; that the impugned notice of appeal in comparison with the one they have now produced is similar despite the former missing the Deputy Registrar’s stamp; that the impugned notice mistakenly refers to it being filed in respect to an application for leave to appeal to this court but it is clear in the body that the appeal is against the judgment of the Court of Appeal. The appellants cite Lemanken Aramat v Harun Meitamei Lempaka & 2 others SC Petition No 5 of 2014 [2014] eKLR to assert that the allegations raised by the applicants are unmeritorious since the imperfections in the impugned Notice do not prejudice the parties;
8.
Taking into account the ruling made on July 8, 2022 by this court, reviewing the ruling of the Court of Appeal and certifying this matter as one of general public importance and framing two issues the basis upon which leave was granted; and the fact that the respondents had raised objections to our jurisdiction, inter alia, on the very ground of defective Notice of Appeal.
9.
Having carefully considered the application, responses, submissions put forth and the record, we now opine as follows:
a.
Rule 36 of the Supreme Court Rules mandates the appellant to file a notice of appeal within fourteen (14) days from the date of judgement and transmit a copy to the registrar of this court. In our ruling of July 8, 2022, we noted that it was not mandatory for the appellant to precede the application for review of certification by the filing a notice of appeal. Rule 36(4) provides that in lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.
b.
We have previously held that a notice of appeal is a jurisdictional pre- requisite whose filing signifies the intention to appeal (see Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others; SC Application No 16 of 2014, [2014] and University of Eldoret & another v Hosea Sitienei & 3 others SC Application No 8 of 2020 [2020] eKLR, respectively). From the record, we are satisfied that the intention to appeal was signified vide the notice of appeal filed on July 29, 2022 as submitted alongside the petition of appeal filed in this matter. We are also satisfied that the notice of appeal was filed before the Court of Appeal within the timelines stipulated.
c.
Even though the title of the notice of appeal filed herein indicates that it is filed in regard to an application for grant of certification and leave to appeal to the Supreme Court, its contents specify the appellants’ intent to appeal against the decision of the Court of Appeal rendered on April 4, 2019. The parties having engaged in the certification and leave to appeal proceedings both at the Court of Appeal and before this court, there was little doubt left as to the appellants’ intention to appeal against the judgment of the Court of Appeal. We do not see the need to entangle ourselves in the filing and administrative processes by the Court of Appeal, as to the stamping and signing by the registrar of that court as we are satisfied that the notice of appeal was duly lodged before the Court of Appeal.
d.
Rule 40 (1) of the Supreme Court Rules lists the contents of the record of appeal as: (i) a certificate, if any, certifying the matter as of general public importance; (ii) the judgment or ruling of the Court of Appeal being appealed from; (iii) a judgment or ruling of the High Court or a court of equal status; and (iv) the relevant pleadings required to determine the appeal. As per the applicants, the documents stated to be excluded thereby making the record of appeal incomplete are the consent order of the agreed issues in the High Court which is quoted in verbatim in the High Court judgment, notification of sale by Dolphin Auctioneers, valuation report by Tysons Ltd, copies of cheques, banking slips and bank statements. This being a matter of general public importance that raises specific questions as framed, we think these documents are only useful in interrogation of findings of facts which does not fall within the purview of this court. We do not find them relevant or necessary in determination of this appeal.
e.
Article 159 (2) (d) of the Constitution obliges this court to administer justice without undue regard to procedural technicalities. Therefore, even though the respondents submitted a notice of appeal not stamped or endorsed by the Court of Appeal, the same is not fatal. The notice of appeal did fulfil its purpose of conferring the appellants’ intention to appeal.
f.
Let this matter be determined on the framed issues. Costs to abide the outcome of the appeal.
9.
Consequently, we make the following orders:
i.
The notice of motion dated December 2, 2022 and filed on December 5, 2022 by the 3rd and 4th respondents be and is hereby dismissed.
ii.
Costs shall abide the outcome of the appeal.
Upon perusing the notice of motion by the 3rd and 4th respondents dated December 2, 2022 and filed on December 5, 2022, pursuant to rules 3(5), 31, 36 (3), and 40(1)(i)(d) of the Supreme Court Rules, 2020 seeking to have the Record of Appeal dated April 19, 2022 and lodged on July 29, 2022 be struck out and the appeal dismissed; and
2.
Upon considering the grounds in support of the application; the supporting affidavit sworn on December 2, 2022 by Ateet Dinesh Jetha, written submissions dated December 5, 2022 and filed on even date; and rejoinder submissions dated December 19, 2022 and filed on even date; wherein the applicants contend that contrary to rule 40(1) of the Supreme Court Rules, 2020 the appellants have omitted pleadings/documents from their record of appeal that this court requires to determine the appeal in the unlikely event the court goes beyond the two certified questions of law and interrogates the factual findings by the Court of Appeal; that the appellants chose not to file the said documents despite this omission having been brought to their attention; that the respondents will have no legal avenue to introduce the omitted documents into the record, denying them a right to a fair trial, necessitating striking out of the record of appeal as the appropriate remedy;
3.
Upon considering the applicants’ further argument that this court lacks jurisdiction to determine the appeal as the notice of appeal filed by the appellants is fatally defective as it was neither stamped as received/filed by the Court of Appeal, endorsed by the Deputy Registrar of the said court nor transmitted to the Registrar of this court as required under rule 36 (3) of the Supreme Court Rules; that in any event since the title of the notice of appeal is indicated as relating to the application for certification and leave to appeal to this court, the same does not relate to the judgment delivered on April 4, 2019. The applicants rely on the Court of Appeal decision in Salama Beach Hotel Ltd v Kenyariri & Associates [2016] eKLR and this court’s decision in Bookpoint Limited v Guardian Bank Limited & another [2021] eKLR;
4.
Cognisant that the applicants had filed a notice of preliminary objection dated November 24, 2022 and filed on November 25, 2022 based on the same grounds and the 1st and 2nd respondents did not respond to the application though they had filed a replying affidavit to the main appeal;
5.
Upon considering the 5th and 6th respondents’ written submissions dated December 14, 2022 and filed on December 16, 2022 in support of the application, where they reiterate the averments by the applicants and affirm that the exclusion of the documents would be highly prejudicial to the respondents taking into account that the appellants failed to take advantage of rule 40(4) of the Supreme Court Rules to file the documents;
6.
Upon considering the appellants’ replying affidavits of Arvind Shah, Grace Odhiambo Odongo and Fredrick Kinyua Kamundi sworn on December 9, 2022 and filed on December 13, 2022 and the written submissions dated December 9, 2022 and filed on December 13, 2022 where they contend that the Record of Appeal presented in this matter contains all the documents as stipulated under rule 40 (1) of the Supreme Court Rules, 2020; that they are required to annex all documents relevant to determine the appeal and not to annex every document that has ever been filed since the dispute started; that in any case, exclusion ought not to warrant striking out of the entire appeal; in the alternative, if this court desires to obtain information that was part of the superior court’s record it may on its own motion call upon such files for its perusal; that the respondents having filed their responses by November 17, 2022 neither one of them raised any allegation that there are material documents that were missing which would be prejudicial upon them for it was an afterthought; and
7.
Upon further consideration of the appellants’ argument that the notice of appeal is not one of the documents required to be included in the record of appeal; that the judgment of the Court of Appeal having been rendered on April 4, 2019, the appellants duly filed their Notice of Appeal as acknowledged by the Deputy Registrar on April 18, 2019; that the same was transmitted to this court on the same day through this court’s sub-registry in Mombasa; that the impugned notice of appeal in comparison with the one they have now produced is similar despite the former missing the Deputy Registrar’s stamp; that the impugned notice mistakenly refers to it being filed in respect to an application for leave to appeal to this court but it is clear in the body that the appeal is against the judgment of the Court of Appeal. The appellants cite Lemanken Aramat v Harun Meitamei Lempaka & 2 others SC Petition No 5 of 2014 [2014] eKLR to assert that the allegations raised by the applicants are unmeritorious since the imperfections in the impugned Notice do not prejudice the parties;
8.
Taking into account the ruling made on July 8, 2022 by this court, reviewing the ruling of the Court of Appeal and certifying this matter as one of general public importance and framing two issues the basis upon which leave was granted; and the fact that the respondents had raised objections to our jurisdiction, inter alia, on the very ground of defective Notice of Appeal.
9.
Having carefully considered the application, responses, submissions put forth and the record, we now opine as follows:
a.
Rule 36 of the Supreme Court Rules mandates the appellant to file a notice of appeal within fourteen (14) days from the date of judgement and transmit a copy to the registrar of this court. In our ruling of July 8, 2022, we noted that it was not mandatory for the appellant to precede the application for review of certification by the filing a notice of appeal. Rule 36(4) provides that in lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.
b.
We have previously held that a notice of appeal is a jurisdictional pre- requisite whose filing signifies the intention to appeal (see Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others; SC Application No 16 of 2014, [2014] and University of Eldoret & another v Hosea Sitienei & 3 others SC Application No 8 of 2020 [2020] eKLR, respectively). From the record, we are satisfied that the intention to appeal was signified vide the notice of appeal filed on July 29, 2022 as submitted alongside the petition of appeal filed in this matter. We are also satisfied that the notice of appeal was filed before the Court of Appeal within the timelines stipulated.
c.
Even though the title of the notice of appeal filed herein indicates that it is filed in regard to an application for grant of certification and leave to appeal to the Supreme Court, its contents specify the appellants’ intent to appeal against the decision of the Court of Appeal rendered on April 4, 2019. The parties having engaged in the certification and leave to appeal proceedings both at the Court of Appeal and before this court, there was little doubt left as to the appellants’ intention to appeal against the judgment of the Court of Appeal. We do not see the need to entangle ourselves in the filing and administrative processes by the Court of Appeal, as to the stamping and signing by the registrar of that court as we are satisfied that the notice of appeal was duly lodged before the Court of Appeal.
d.
Rule 40 (1) of the Supreme Court Rules lists the contents of the record of appeal as: (i) a certificate, if any, certifying the matter as of general public importance; (ii) the judgment or ruling of the Court of Appeal being appealed from; (iii) a judgment or ruling of the High Court or a court of equal status; and (iv) the relevant pleadings required to determine the appeal. As per the applicants, the documents stated to be excluded thereby making the record of appeal incomplete are the consent order of the agreed issues in the High Court which is quoted in verbatim in the High Court judgment, notification of sale by Dolphin Auctioneers, valuation report by Tysons Ltd, copies of cheques, banking slips and bank statements. This being a matter of general public importance that raises specific questions as framed, we think these documents are only useful in interrogation of findings of facts which does not fall within the purview of this court. We do not find them relevant or necessary in determination of this appeal.
e.
Article 159 (2) (d) of the Constitution obliges this court to administer justice without undue regard to procedural technicalities. Therefore, even though the respondents submitted a notice of appeal not stamped or endorsed by the Court of Appeal, the same is not fatal. The notice of appeal did fulfil its purpose of conferring the appellants’ intention to appeal.
f.
Let this matter be determined on the framed issues. Costs to abide the outcome of the appeal.
9.
Consequently, we make the following orders:
i.
The notice of motion dated December 2, 2022 and filed on December 5, 2022 by the 3rd and 4th respondents be and is hereby dismissed.
ii.
Costs shall abide the outcome of the appeal.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/28/eng@2023-04-21
Petition (Application) 26 of 2019,Wamwere & 5 others v Attorney General (Petition (Application) 26 of 2019 & Petition 34 & 35 of 2019 (Consolidated)) [2023] KESC 26 (KLR) (21 April 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",21 April 2023,2023.0,Nairobi,Civil,Wamwere & 5 others v Attorney General,[2023] KESC 26 (KLR)               ,,"Brief facts
On January 27, 2023 the Supreme Court delivered a judgment holding that the applicants’ freedom from inhuman treatment as protected under section 74(1) of the repealed Constitution were violated by the Government of Kenya and awarded each of the applicants’ damages of Kshs 2,500,000. The court however, did not make an order on the payment of interest notwithstanding that the applicants had prayed for interest on the damages awarded in the consolidated appeal. Aggrieved the appellants filed the instant application for review in which they sought for the orders to be amended to include an award of interests on the damages.  
The respondents did not file a response to the motion.
Issues
Whether the jurisdiction of the Supreme Court to correct oversight or clerical errors in its own judgements extended to reviewing a judgment in which it had awarded damages to include an award of interests on the damages which it had omitted. 
","Considering that on January 27, 2023 this court delivered a judgment holding that the applicants’ rights and freedom from inhuman treatment as protected under section 74(1) of the repealed Constitution were violated by the Government of Kenya and awarded each of the applicants damages of Kshs 2,500,000; the court however, did not make an order on the payment of interest notwithstanding that the applicants had prayed for interest on the damages awarded in the consolidated appeal; and
2.
Noting that on February 14, 2023 the applicants filed a notice of motion dated February 6, 2023 under section 21(4) of the Supreme Court Act, 2011 and rule 31 of the Supreme Court Rules, 2020 seeking-
a.
That the honourable court do amend its order (e) in its judgment delivered on January 27, 2023 and award the applicants interest on the award of Kshs 2,500,000 to each of the applicants at court rates from the date of filing the High Court petition on April 15, 2013 until payment in full.
b.
The costs of this application be costs in the cause.
3.
Upon considering the affidavit in support of the motion sworn by the applicants’ advocate, James H Gitau Mwara, on February 6, 2023 and the applicants’ submissions; to the effect that this court on January 27, 2023 entered judgment in the applicants’ favour and awarded them damages of Kshs 2,500,000 each; that despite the applicants having prayed for interest on the damages awarded in the consolidated appeal, the judgment was silent on the same; that the court ought to consider reviewing its judgment and grant the applicants interest on the grounds that claimants in similar cases such as, Irene Wangari Gacheru & 6 others v Attorney General, HC Petition No 376 of 2014; [2017] eKLR and Kennedy Kinuthia & 3 Others v Attorney General, HC petition No 375 of 2014; [2017] eKLR, were granted interest on the damages awarded; that it is trite law and a rule of practice that costs and interest follow the event in a monetary judgment; that an award of interest would act as mitigation against all delays (either intentional or due to bureaucratic long drawn processes) by the government in payment of the assessed damages; and that the court has inherent powers to amend its judgment and award interest as sought; and
4.
Noting that despite being served with the motion, the respondent has not filed any response thereto; and
5.
Cognisant that section 21(4) of the Supreme Court Act provides as follows:
“
The court may, on its motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order and such correction shall constitute part of the judgment, ruling or order of the court.”
6.
Bearing in mind that the scope of the court’s jurisdiction to review its judgment under section 21(4) of the Supreme Court Act which embodies the “slip rule” is circumscribed as aptly appreciated in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others, SC Petition No 6 of 2014; [2017] eKLR -
“
By its nature, the slip rule permits a court of law to correct errors that are apparent on the face of the judgment, ruling, or order of the court. Such errors must be so obvious that their correction cannot generate any controversy, regarding the judgment or decision of the court. By the same token, such errors must be of such nature that their correction would not change the substance of the judgment or alter the clear intention of the court. In other words, the slip rule does not confer upon a court, any jurisdiction or powers to sit on appeal over its own judgment, or, to extensively review such judgment as to substantially alter it. Indeed, as our comparative analysis of the approaches by other superior courts demonstrates, this is the true import of the slip rule.”
7.
Appreciating that the court at paragraph 97 of its judgment and in particular, under limb (e) of its orders held as follows:
“
e)
The Government of Kenya shall pay damages assessed at Kshs 2,500,000.00/- to each of the appellants in this consolidated appeal.”
Further, from the reading of the judgment there is no indication that the court intended to deny the applicants interest on the damages awarded; and
8.
Acknowleding that the omission to award interest falls within the bounds of the error(s) contemplated under section 21(4) of the Supreme Court Act; and that review of the judgment in issue to award interest would not alter the substance thereof rather it would give effect to the court’s intention. See Musembi & 13 others (suing on their own behalf and on behalf of 15 residents of Upendo City Cotton village at South C Ward, Nairobi) v Moi Educational Centre Co Ltd & 3 others, SC Application No E019 of 2021; [2022] KESC 19 (KLR).
9.
We hereby pronounce that the motion has merit and invoke our jurisdiction under section 21(4) of the Supreme Court Act to review the judgment to include an award of interest on the damages at court rates from the date of the judgment of this court being; the January 27, 2023 until payment in full.
10.
Consequently and for the reasons aforestated we make the following orders:
i.
The notice of motion dated February 6, 2023 and filed on February 14, 2023 is hereby allowed.
ii.
Consequently, the judgment dated January 27, 2023 is hereby reviewed and in particular order (e) at paragraph 97 which shall now read as follows:
e)
The Government of Kenya shall pay damages assessed at Kshs 2,500,000.00/- to each of the appellants in this consolidated appeal. The appellants shall also have interest on the damages at court rates from the date of the judgment being January 27, 2023 until payment in full.”
iii.
There having been no opposition by the respondent, we make no orders as to costs in regard to this motion.
It is so ordered",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/26/eng@2023-04-21
Petition 7 (E009) of 2021,Ingang’a & 6 others v James Finlay (Kenya) Limited (Petition 7 (E009) of 2021) [2023] KESC 22 (KLR) (31 March 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",31 March 2023,2023.0,Nairobi,Civil,Ingang’a & 6 others v James Finlay (Kenya) Limited,[2023] KESC 22 (KLR)               ,,"A. Introduction
1.
The appellants moved this court vide petition of appeal dated August 12, 2021 and lodged on August 13, 2021 pursuant to article 163(4)(a) of the Constitution and rule 33 of the Supreme Court Rules, 2020. They are challenging the Judgment of the Court of Appeal (Nambuye, Karanja and Kantai JJA) in Civil Appeal No 297 of 2019 delivered on May 21, 2021.
B. Background
2.
The appellants were either serving or former employees of the respondent, who owned and managed tea estates including Tiluet– Chomogonday factory, Marinyn, Kaproret and Kapsongoi Kitumbe factory all situated in Kericho County. The respondent is a company incorporated under the Companies Act of Scotland with its registered office at Swire House, Souter Head Road Altens, Aberdeen, Scotland.
3.
The appellants filed seven suits at the All-Scotland Sheriff Personal Injury Court (hereinafter referred to as the “Scottish Court”) at Edinburgh in Scotland, Court Ref No PLC PN 1055, 1056, 1057, 1058, 1052, 1053 and 1051 in respect of each appellant. The appellants were claiming to have suffered work related injuries while at work in the respondent’s various tea estates and factories in Kericho, Kenya. They alleged breach of duty to provide a safe working environment on account of negligence on the respondent’s part.
4.
The Scottish court was asked, inter alia, to issue locus inspections orders (hereinafter referred to as “locus inspection orders”) for a site visit of the respondent’s tea estates and factories in Kericho for the purpose of observing the following activities: tea pickers picking tea manually and with equipment, taking measurements of the tea plants and areas where workers were required to work, including distance workers are required to walk to weigh tea; photocopying and videoing work undertaken by the workers; considering Personal Protective Equipment (PPE) available to the workers; weighing the tea baskets when full of tea; observing and videoing picking, transporting and weighing of the tea; observing medical facilities available to the workers, and, weighing mechanical harvesting equipment for one, two and three users.
5.
In an order dated November 22, 2018 and amended on December 18, 2018, the Scottish Court granted the locus inspection orders, in respect of the seven appellants for the respondent’s premises in Tiluet Chomogonday Factory, Marinyn, Kaproret and Kapsongoi Kitumbe Factory in Kericho County. It is those orders that the respondent sought to halt their execution.
C. Litigation History","E. Analysis and Determination
43.
The following issues emerge for the court to determine
i.
Whether this court is clothed with the requisite jurisdiction to determine this appeal?
ii.
Whether the locus inspection orders issued by the Scottish Court could be executed in Kenya without intervention by Kenyan authorities
iii.
Who should bear the costs of the appeal?
i. Does this court have the requisite jurisdiction to determine this appeal?
44.
Before embarking on determining the merits of any appeal, the court must assess whether its jurisdiction is properly invoked. As was held in the celebrated case of Owners of the Motor Vessel “Lillians” v Caltex Oil Kenya Limited [1989] KLR 1, without jurisdiction a court has no power and must down tools in respect of the matter in question. Equally, as this court held in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR where the Constitution exhaustively provides for the jurisdiction of a court, the court must operate within those limits. It cannot expand its jurisdiction through judicial craft or innovation.
45.
In Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another Sup Ct Petition No 3 of 2012; (2012) eKLR, we delineated this court’s jurisdiction under article 163(4)(a) of the Constitution that it must be demonstrated that the issues of contestation revolved around the interpretation or application of the Constitution. It is the interpretation or application of the Constitution by the Court of Appeal that forms the basis of a challenge to this court. So that, where the dispute has nothing or little to do with the interpretation or application of the Constitution, this court under article 163(4)(a) will have no jurisdiction to entertain the appeal.
46.
These principles are reiterated in the cases Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Pet No 10 of 2013 [2014] eKLR and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC App No 5 of 2014 [2014] e KLR, Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013]eKLR, Daniel Kimani Njehia v Francis Mwangi Kimani & another [2015] eKLR, Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others [2018] eKLR, Nasra Ibrahim Ibren v Independent Electoral Boundaries & 2 others [2018] eKLR and National Rainbow Coalition Kenya (NARC Kenya) v. Independent Electoral & Boundaries Commission; Tharaka Nithi County Assembly & 5 others (Interested Party), SC Petition 1 of 2021; [2022] KESC 6 (KLR) (Civ) (17 February 2022). It is against this background that we examine whether the Petition raises issues of Constitutional interpretation and application.
47.
The appellants’ have filed the present petition of appeal pursuant to article 163(4)(a) of the Constitution and rule 33 of the Supreme Court Rules, 2020. The appellants contend that there are two main issues for this court to determine; whether their right to fair trial under article 50 was infringed by the trial court and Court of Appeal and whether execution of the orders from the Scottish Court is a matter affecting the sovereignty and national security of Kenya as expressed in articles 1 and 238 of the Constitution and concerning the judicial authority of Kenyan courts as prescribed by article 159(1) of the Constitution.
48.
Having perused the record, we note that it is the manner of enforcement, application or compliance of the orders from the Scottish Court that has been in contention right from the trial court and progressed by way of appeal to ultimately reach this court. We also take note that it is articles 1, 50, 159 and 238 of the Constitution that have been the subject of construction and interpretation. Accordingly, we arrive at the conclusion that the appeal falls squarely within the ambit of article 163(4)(a) of the Constitution. We therefore find that we have jurisdiction to consider it.
ii. Can the locus inspection orders issued by the Scottish Court be executed in Kenya without intervention by Kenyan authorities?
49.
The appellants submit that the locus inspection orders which they assert as self-executing by the trial court do not require a process of execution. All they require is compliance by the parties. They take the position that the enforcement of the orders did not touch on the sovereignty of the people, national security to the Republic of Kenya, or threatened the judicial authority of Kenya’s courts. They base this argument on the submission that there was nothing in their activities together with their legal counsel or the work the experts intended to carry out on the respondent’s private property that could be construed as touching or affecting the national security of Kenyans. They also faulted the trial court and the Court of Appeal for invoking public policy consideration as a basis for declining to allow them enforce the orders while they failed to disclose the specific public policies they were relying on.
50.
The respondent argues that it is only through subjecting foreign decisions to scrutiny through the established procedures like judicial intervention that these decisions can be ascertained not to be a risk to the sovereignty of the people. It is further urged that superior courts identified the public policies they based their decisions on. It is argued that the mere fact that the Scottish court is not one of the courts clothed with judicial authority over the people of Kenya as required byarticle 159 is a matter of public policy that the judicial authorities need to intervene to ascertain such orders are in the interest of the people of Kenya. Furthermore, legislative enactments like Part VII of the High Court (Practice and Procedure) Rules, the Civil Procedure Act, order 5 rule (29) and order 28 of the Civil Procedure Rules are themselves embodiment of public concern in dealing with foreign judicial orders. The respondent also pointed out that pursuant to articles 1 and 2 of the Constitution and by virtue of article 159, supremacy and sovereignty was donated to the Kenyan judicial system as opposed to the Scottish Court. Therefore, any judicial order by the Scottish Court was void unless sanitized by Kenyan authorities before execution.
51.
One of the cornerstones of international law is the principle of territoriality, under which, sovereign states have sole authority over their own territory. As this court found in the case of Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR), article 2(5) and (6) of the Constitution, recognizes international law (both customary and treaty law) as a source of law in Kenya. It is why Kenya being as a member of the international community is bound by the provisions of the UN Charter. The centerpiece of the United Nations is the sovereign equality of the Member States as enshrined under article 2(1) to (4) of the United Nations Charter provides:
1.
The Organization is based on the principle of the sovereign equality of all its Members.
2.
All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
3.
All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4.
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
52.
Due to the territorial nature of jurisdiction, laws of one state do not apply to other states. And rightly so, as different states have different laws in place depending on the state’s history, culture and priorities. Sovereignty and the principle of territoriality prevents foreign judgments from having direct operation in other countries. The effect of this principle is ultimately, no judgment of a court of one country can be executed proprio vigore (of or by its own force independently) in another country.
53.
This has been the subject of interpretation and application, more so by the English Courts and within the Commonwealth countries, that dates as far back as the 19th Century. One such decision is that of Raja of Faridkot v Gurdyal Singh (1895) ILR 22 Cal 222 by the High Court in Calcutta. Here the court firmly reinforced the concept of territorial jurisdiction of nations and stated as follows:
“
6.
All jurisdiction is properly territorial, and ""extra territorium jus dicenti, impune non paretur."" Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory, while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory, and it may be exercised over moveables within the territory.
…..
7.
In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in absentem by a Foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by International Law an absolute nullity. He is under no obligation of any kind to obey it, and it must be regarded as a mere nullity by the courts of every nation, except (when authorized by special local legislation) in the country of the forum by which it was pronounced.”
54.
To allow universal recognition and enforcement of foreign decisions would result in recognizing that foreign courts are superior to the national courts, thereby infringing on the sovereignty of a country. Further, due to the diversity of laws, automatic recognition may result in enforcement of decisions that go against the laws or public policies of the enforcing country. It is for this reason that there must be adequate safeguards in place. The citizens or residents of the country where the decision is sought to be enforced should not be left without protection in respect to arbitrary measures which might be taken against them in foreign countries.
55.
How then do foreign decisions gain recognition and force of law? Which government office or agency is tasked with scrutinizing foreign decisions?
56.
It is our considered opinion that Parliament enacted various statutes to deal with different scenarios. For instance, in Extradition proceedings, we have the Extradition (Commonwealth Countries) Act (cap 77) and Extradition (Contiguous and Foreign Countries) Act (cap 76). In the case of Director of Public Prosecutions v Okemo & 4 others (Petition 14 of 2020) [2021] KESC 13 (KLR) where the court found that extradition cases, being criminal in nature the appropriate office to initiate extradition proceedings was the Director of Public Prosecutions. The Attorney General however retains the Executive Authority to receive Requests for Extradition and to transmit the same to the Director of Public Prosecutions for necessary action before a Magistrates Courts in Kenya. In the case of foreign judgments, Parliament enacted the Foreign Judgments (Reciprocal Enforcement) Act (cap 43) for the enforcement of judgments given in countries outside Kenya which accord reciprocal treatment to judgments given in Kenya. We shall be shortly be unravelling the conundrum of how judicial assistance is accorded to interlocutory decisions. However, what is evident, is that the courts have an active role to play where foreign decisions are concerned.
57.
Under the Constitution, it is in the courts and Tribunals established in Kenya through article 159, that the people of Kenya vested judicial authority. This is what informs our considered view that, of the three arms of government, the Judiciary is the better suited authority to scrutinize the decisions of a foreign court. It is also at the juncture of such scrutiny that the courts of an enforcing country examine a decision by the foreign court or tribunal to determine if the same adheres to the Constitution and laws of the country. It is here that the country’s public policy becomes crucial, as decisions that go against the enforcing country’s public policy considerations would not gain recognition.
58.
Castel, Jean-Gabriel in ""Recognition and Enforcement of Foreign Judgments in Personam and in Rem in the Common Law Provinces of Canada"" (1971), 17 McGill L.J. 11 writes that the concept of recognizing foreign decisions developed around the 18th century due to growth in English colonies world-over as well as the growth of English foreign trade. Kenya being a former colony and now a member of the Commonwealth, our history is intricately tied to the United Kingdom. This need for recognizing and enforcing decisions by foreign courts or tribunals was anchored upon the doctrine of comity. The Black’s Law Dictionary, 9th Edition defines comity as follows:
“
A practice among political entities (as nations, states, or courts of different jurisdictions) involving esp mutual recognition of legislative, executive and judicial acts.”
59.
The application of the doctrine of comity means that the recognition of foreign decision is not out of obligation, but rather out of convenience and utility. One of the more influential statements of the doctrine of comity still applicable today was made in Hilton v Guyot, 159 US 113, 143 (1895) where Justice Gray of the Supreme Court defined comity as follows:
“
No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent of which the law of one nation... shall be allowed to operate within the dominion of another nation, depends upon... the ""comity of nations""... ""
Comity in the legal sense is neither a matter of absolute obligation, on one hand, nor a mere courtesy and goodwill, on the other; it is the recognition which one allows within its territory to the legislative, executive or judicial act of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under protection of its laws…”
60.
This approach prioritizes citizen protection while taking into account the legitimate interests of foreign claimants. This approach is consistent with the adaptability of international comity as a principle of informed prioritizing national interests rather than absolute obligation, as well as the practical differences between the international and national contexts.
61.
The Supreme Court of Canada in the case of Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077 highlighted the fact that the meaning and tenor of the doctrine of comity has evolved over the years to facilitate the flow of wealth, skills and people across boundaries. This has become ever more crucial with the globalization trend in which the world's economies, cultures, and populations are highly interdependent due to cross- border trade in goods and services, technology, and flows of investment, people, and information. Mehren and Trautman have observed in ""Recognition of Foreign Adjudications: A Survey and A Suggested Approach"" (1968), 81 Harv L Rev 1601, at p 1603: ""The ultimate justification for according some degree of recognition is that if in our highly complex and interrelated world each community exhausted every possibility of insisting on its parochial interests, injustice would result and the normal patterns of life would be disrupted."" The Supreme Court of Canada in the of Morguard Investments Ltd v De Savoye, [supra] held as follows:
“
Modern states, however, cannot live in splendid isolation and do give effect to judgments given in other countries in certain circumstances. Thus a judgment in rem, such as a decree of divorce granted by the courts of one state to persons domiciled there, will be recognized by the courts of other states. In certain circumstances, as well, our courts will enforce personal judgments given in other states. Thus, we saw, our courts will enforce an action for breach of contract given by the courts of another country if the defendant was present there at the time of the action or has agreed to the foreign court's exercise of jurisdiction. This, it was thought, was in conformity with the requirements of comity, the informing principle of private international law, which has been stated to be the deference and respect due by other states to the actions of a state legitimately taken within its territory. Since the state where the judgment was given had power over the litigants, the judgments of its courts should be respected.
But a state was under no obligation to enforce judgments it deemed to fall outside the jurisdiction of the foreign court. In particular, the English courts refused to enforce judgments on contracts, wherever made, unless the defendant was within the jurisdiction of the foreign court at the time of the action or had submitted to its jurisdiction. And this was so, we saw, even of actions that could most appropriately be tried in the foreign jurisdiction, such as a case like the present where the personal obligation undertaken in the foreign country was in respect of property located there. Even in the 19th century, this approach gave difficulty, a difficulty in my view resulting from a misapprehension of the real nature of the idea of comity, an idea based not simply on respect for the dictates of a foreign sovereign, but on the convenience, nay necessity, in a world where legal authority is divided among sovereign states of adopting a doctrine of this kind.
For my part, I much prefer the more complete formulation of the idea of comity adopted by the Supreme Court of the Unites States in Hilton v Guyot, 159 US 113 (1895).”
62.
Turning back to the dispute before the court, these principles of territoriality and sovereignty are reflected in various articles of the Constitution of Kenya. Pursuant to article 2(1), the Constitution of Kenya is the supreme law of the land and binds all persons and all State organs at both levels of government. Pursuant to article 2(4) of the Constitution, any law that is inconsistent with the Constitution is void, and any act or omission in contravention of the Constitution is invalid. It goes without saying, that any foreign decision that is not consistent with the Constitution is void and would not be recognised.
63.
Article 1 of the Constitution of Kenya lays out the expression of sovereignty of the people of Kenya as follows:
“
Sovereignty of the people
(1)
All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.
(2)
The people may exercise their sovereign power either directly or through their democratically elected representatives.
(3)
Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution—
a.
Parliament and the legislative assemblies in the county governments;
b.
the national executive and the executive structures in the county governments; and
c.
the Judiciary and independent tribunals.
4.
The sovereign power of the people is exercised at—
a.
the national level; and
b.
the county level.”
64.
Article 4(1) declares Kenya to be a sovereign republic. The people of Kenya exercise this sovereign power themselves and through the delegated state organs such as the Judicial arm of government. Article 159(1) provides that judicial authority of thecourts ‘is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.’ While article 160(1) provides that ‘in the exercise of judicial authority, the Judiciary, as constituted by article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.’
65.
This court in Peter Odiwuor Ngoge t/a O P Ngoge & Associates Advocates & 5379 others v J Namada Simoni t/a Namada & Co Advocates & 725 others, SC Petition No 13 of 2013 stated that judicial authority in Kenya derives from and is exercised pursuant to the Constitution. The domestic courts therefore exercise donated power that the people democratically consented to. The legal philosopher Martin Loughlin in ‘The Idea of Public Law’ (Oxford University Press, 2003) at pages 84-85 argues that sovereignty as power is an essential precondition of any legal order. This is based on the fact that it is the people who are the ‘repository of sovereignty in those regimes that adopt formal constitutions and allocate legal authority to designated organs of government’. Democratic self-rule will therefore be threatened where foreign courts, to whom the people have not donated judicial authority, can directly exercise influence within the polity without intermediation with domestic bodies.
66.
We have no difficulty finding that decisions by foreign courts and tribunals are not automatically recognized or enforceable in Kenya. They must be examined by the courts in Kenya for them to gain recognition and to be enforced. Consequently, it is also our finding that Kenya as a sovereign state cannot automatically allow citizens, individuals or officers of a foreign state to carry out upon its own territory the decisions of a foreign court, without authorization from the Kenyan Government upon recognition of the decision of the foreign court or tribunal. Such an action would violate the principle of sovereignty enshrined in our Constitution. It is therefore our finding that the appellants’ experts/examiners cannot enter the country to execute the locus inspection orders without authorization.
67.
It is for the aforementioned reasons that one of the avenues Kenya has for the recognition and enforcement of decisions from foreign courts and tribunals is the Foreign Judgments (Reciprocal Enforcement) Act, cap 43 Laws of Kenya. This is our first port of call. This preamble of the statute provides that the Act serves ‘to make new provision in Kenya for the enforcement of judgments given in countries outside Kenya which accord reciprocal treatment to judgments given in Kenya and for other purposes in connection therewith’.
68.
Section 3(1) of this Act stipulates which judgments the act applies to and lists the following:
“
(a)
a judgment or order of a designated court in civil proceedings whereby a sum of money is made payable, including an order for the payment of a lump sum as financial provision for, or maintenance of, a spouse or a former or reputed spouse or a child or other person who is or was a dependant of another;
(b)
a judgment or order of a designated court in civil proceedings under which movable property is ordered to be delivered to any person, including an order for the delivery of movable property as part of a scheme for the provision for, or maintenance of, a spouse or a former or reputed spouse or a child or other person who is or was a dependant of another;
(c)
a judgment or order of a designated court in criminal proceedings for the payment of a sum of money in respect of compensation or damage to an injured person or for the delivery of movable property by way of restitution to an injured person;
(d)
a judgment given in any court on appeal against a judgment or order of a designated court referred to in paragraphs (a) to (c);
(e)
a judgment of a designated superior court for the costs of an appeal from a subordinate court, whether or not a designated court, or from an award referred to in paragraph (f); and
(f)
an award in arbitration proceedings, if the award has, under the laws in force in the country where it was made, become enforceable in the same manner as a judgment given by a designated court in that country.”
69.
Section 3(2) complements (1) aforesaid as it stipulates the two conditions that the judgments above must meet. It provides as follows:
“
2)
This Act applies to a judgment referred to in sub section (1) if it—
a.
requires the judgment debtor to make an interim payment of a sum of money to the judgment creditor; or
b.
is final and conclusive as between the parties thereto,
but a judgment is deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court.”
70.
Section 3(3) lists out the nature of judgments that the Act does not apply to. These are the following:
“
This Act does not apply to a judgment or order—
a.
whereby a sum of money is payable or an item of movable property is deliverable in respect of taxes or other charges of a similar nature or in respect of a fine or other penalty;
b.
to the extent to which it provides for the payment of a sum of money by way of exemplary, punitive or multiple damages;
c.
for the periodical payment of money as financial provision for, or maintenance of, a spouse or a former or reputed spouse or a child or other person who is or was a dependant of the person against whom the order was made;
d.
in a matrimonial cause or matter, or determining rights in property arising out of a matrimonial relationship, not being a judgment referred to in paragraph (a) or (b) of subsection (1), whereby a sum of money is payable or item of movable property deliverable;
e.
in proceedings in connection with the custody or guardianship of children;
f.
in proceedings concerning the administration of the property or affairs of a person who is incompetent or incapable of managing and administering his property and affairs;
g.
in a matter of succession to, or administration of, estates of deceased persons whereby a sum of money is payable or movable property is deliverable;
h.
in a matter of social security or public assistance whereby a sum of money is payable by or to a public authority or fund;
i.
in bankruptcy proceedings or in proceedings for the winding-up or re-organization of a corporation or in proceedings for judicial arrangements, compositions or similar matters;
j.
in proceedings relating to damage, death or injury caused by occurrences involving nuclear matter or the emission of ionising radiation;
k.
of a designated court in any proceedings if—
(i)
the bringing of those proceedings in that court was contrary to an agreement, or to an instrument in respect of which the proceedings were instituted, whereby the dispute, or the proceedings, were to be settled otherwise than in the courts of the reciprocating country; and
(ii)
those proceedings were not brought in that court by, or with the agreement of, the person against whom the judgment was given;
(iii)
that person did not counterclaim in the proceedings or otherwise submit to the jurisdiction of the court;
l.
which is regarded for the purposes of its enforcement as a judgment of a designated country but which was given in another country;
m.
given by a designated court in proceedings founded on a judgment of a court in another country and having as their object the enforcement of the latter judgment.”
71.
Scotland is one of the constituent countries of United Kingdom, and therefore is one of the reciprocating countries under the Foreign Judgments (Reciprocal Enforcement) Act. However, as is already evident from the aforementioned provisions, interlocutory orders such as the impugned locus inspection orders issued by the court in Scotland do not fall within the parameters of the statute for two reasons. First, they are not on the list of decisions that the Act applies to and second, the locus inspection orders are not final and conclusive.
72.
The need for decisions to be final and conclusive is founded on two principles, the conclusiveness rule and res judicata. These two concepts are interlinked and are consistent with two maxims interest reipublicae ut sit finis litium meaning it is interest of the state that there should be a limit to litigation and nemo debet bis vexari pro eadem causa meaning no person should be punished twice for the same offence. Marussia Borm-Reid in her article ‘Recognition and Enforcement of Foreign Judgments’ International and Comparative Law Quarterly, Vol 3 No 1 (1954) pp 49-92 cited Smith’s Leading Cases, (1929) 13th ed, ii 717-18 where one of the justifications for the need for conclusiveness was that ‘facts can never be enquired into so well as on the spot where they arose, laws never administered so satisfactorily as in the tribunals of the country governed by them’.
73.
The conclusive judgment reached by the foreign court or tribunal creates an indefeasible right in favour of the judgment debtor and is to be exercised against the judgment creditor. It is not the judgment but the right vested under that judgment which is recognized and enforced. This position is reiterated by Jean Gabriel Castel’s article where she quotes HE Read’s Recognition and Enforcement of Foreign Judgments in the Common Law Unity of the British Commonwealth (1934), pp 52-53, 125. Dr Read stated as follows:
“
a foreign judgment is recognized because it establishes the existence of a foreign judicially-created substantive fight. A right which has been duly acquired under the law of any civilized country by virtue of the judgment is to be recognized and enforced by the forum. He states that the true basis of the recognition of a foreign judgment, lies in the fact that:
... a vested right has been created through the judicial process by the law of a foreign law district. This basis not only supports and explains the finality requirement and conclusiveness rule; it is implicit in the doctrine of territoriality of law. This however, is not to say that the Anglo-Dominion common law of foreign judgments gives effect to the so-called vested rights doctrine of conflict of laws to the extent of recognizing every right created by a foreign-territorial law through the judicial process.
To be recognized as an operative fact the right must have been created by the law of a district which had judicial jurisdiction in the international sense and have satisfied other requirements.” (Emphasis added)
74.
In the Canadian case of Laferriere v Gariepy (1920) 62 Can SCR 557, the Supreme Court held that the doctrine of res judicata is based on a presumption that the conclusion reached by a judge is true and having become absolute can longer be questioned and is a bar to any further action between the same parties regarding the same matter. It therefore follows that as a matter of law and international comity, the receiving state should allow a foreign judgment its full effect, without trying the merits of the case afresh, as on a new trial or appeal.
75.
The test of finality was settled in the old English case of Re Henderson, Nouvion v. Freeman (1889) LR 15 AC 1 where the Court of Appeal, Lindley LJ held that
“
The test of finality and conclusiveness of any judgment is to be found in the view taken of it by the tribunals of the country in which it is pronounced and if a judgment leaves the rights of the parties uninvestigated and undetermined and avowedly leaves those rights to be determined in some other proceedings the judgment cannot be treated here as imposing some obligations which our tribunals ought to enforce.”
On appeal to the House of Lords, Lord Herschell held as follows:
“
In order to establish that a (final) judgment has been pronounced it must be shown that in the court by which it was pronounced it conclusively, finally and forever established the existence of the debt of which it sought to be made conclusive evidence in this country, so as to make it res judicata between the parties.”
76.
The principle of res judicata resonates with our Kenyan laws as it is codified under section 7 of the Civil Procedure Act which provides as follows:
“No court shall, try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
77.
It has also been the subject of interpretation and application by the courts including by this court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another, SC Motion No 42 & 43 of 2014 Consolidated [2016] eKLR held as follows regarding the doctrine of res judicata:
“
Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights.”
78.
This is not to say that when acourt is presented with a foreign judgment for recognition and enforcement it proceeds to rehear the same on merits or as an appeal on the correctness or otherwise of the judgment. The issues for considerations for thecourts in Kenya when examining a foreign decision are outlined insection 9 of the Civil Procedure Act, cap 21 Laws of Kenya and include the following:
9.
When foreign judgment not conclusive
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim, litigating under the same title, except—
a.
where it has not been pronounced by a court of competent jurisdiction;
b.
where it has not been given on the merits of the case;
c.
where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of Kenya in cases in which such law is applicable;
d.
where the proceedings in which the judgment was obtained are opposed to natural justice;
e.
where it has been obtained by fraud;
f.
where it sustains a claim founded on a breach of any law in force in Kenya.
Additional considerations on the jurisdiction of the foreign court are set out in sections 4 and 5 of the Foreign Judgments (Reciprocal Enforcement) Act. Broadly they are considerations on whether there was opportunity for full and fair trial, whether the court was competent to hear and determine the matter, whether the defendant had notice of the trial, whether the legal system was one that ensured impartial justice and was devoid of fraud in procuring the judgment.
79.
From the foregoing, it is manifestly clear that the locus inspection orders issued by the court in Scotland do not meet the finality test and therefore do not fall within the ambit of the Foreign Judgments (Reciprocal Enforcement) Act.
80.
Be that as it may, we take note of the fact that the superior courts found that our procedural laws contemplated judicial assistance. The superior courts made reference to various sections of the Civil Procedure Act, cap 21 Laws of Kenya and rules, 2010, as well as provisions of the Judicature Act.
81.
As rightly noted by the trial court, the locus inspection orders are part of the discovery process in litigation. Discovery at the very basic level entails a pre-trial procedure to ascertain facts to be presented at the trial, and as noted by the High Court (Gikonyo J) in Eliud Muturi Mwangi (practicing in the name and style of Muturi & Co Advocates) v LSG Lufthansa Services Europa/Africa GMBH & another, HC Civil Case No 154 of 2014 [2015] eKLR, it has constitutional underpinning in the right to access information enshrined in article 35.
82.
Section 22 of the Civil Procedure Act, cap 21, empowers a court, either on its own motion or application by the parties, to make any orders as may be necessary for discovery. Section 22 provides as follows:
“
22.
Power to order discovery and the like
Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party—
a.
make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
b.
issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
c.
order any fact to be proved by affidavit.
83.
Some of the provisions the trialcourt referred to were sections 54 and 55 of the Civil Procedure Act. These fall under part IV of the Civil Procedure Act which deals with ‘Incidental Proceedings’, more specifically commissions. Section 52 therein makes provision for the power of the court to issue commission. It provides as follows:
“
52.
Power of court to issue commission
Subject to such conditions and limitations as may be prescribed, the court may issue a commission—
a.
to examine any person;
b.
to make a local investigation;
c.
to examine or adjust accounts; or
d.
to make a partition.”
84.
The word ‘commission’ is not defined in the Civil Procedure Act or Rules. In the Black’s Law Dictionary, 9th edition it is defined as follows:
“
1.
A warrant or authority from the government or a court, that empowers the person named to execute official acts. 2. The authority under which a person transacts business for another. 3. A body of persons acting lawful authority to perform certain public services.”
85.
Sections 54 and 55 of the Civil Procedure Act are pertinent to the present appeal as they empower the High Court to issue commissions for the examination of witnesses outside Kenya and require the commissions from foreign courts for examination of witnesses be approved by the High Court before execution respectively.
86.
For us this is a demonstration that the trial court was correct in its supposition that the procedural provisions are a demonstration that judicial assistance is a prerequisite in enforcing interlocutory orders. In tandem with this, there is a procedure to be followed when a foreign court or tribunal issues orders geared towards discovery of evidence.
87.
Order 28 of the Civil Procedure Rules, 2010 on ‘Commissions and references’ further activates sections 52 to 55 of the Civil Procedure Act. We take note that order 28 rule 4 makes provision for the courts in Kenya to make a request for commission of taking evidence of a witness outside Kenya. While conversely, order 28 rule 5 is on the courts in Kenya receiving commissions from foreign courts and tribunals for the examination of a witness. These provisions, provide as follows:
“
4.
Request to examine witness abroad [order 28, rule 4]
Where any court to which application is made for the issue of a commission for the examination of a person residing at any place not in Kenya is satisfied that the evidence of such person is necessary, the court may issue such commission or a letter of request.
5.
Court to examine witness pursuant to commission [order 28, rule 5]
Every court in Kenya receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/22/eng@2023-03-31
Petition 45 of 2019,"Law Society of Kenya v Attorney General & 4 others (Petition 45 of 2019) [2023] KESC 19 (KLR) (31 March 2023) (Judgment) (with dissent - N Ndungu, SCJ)",Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",31 March 2023,2023.0,Nairobi,Civil,Law Society of Kenya v Attorney General & 4 others,[2023] KESC 19 (KLR)               ,,"A. Introduction
1.
At the heart of this appeal is the interpretation and application of articles 171, 248 and 250 of the Constitution; specifically to answer these three narrow but related questions; whether a member of the Judicial Service Commission (the JSC/Commission) elected and or nominated under article 171(2)(b), (c), (d), (f) and (g) ought to be vetted and approved by the National Assembly before appointment; whether section 15(2) of the Judicial Service Act (the Act) is unconstitutional to the extent that it gives the President a role in the appointment of JSC Commissioners elected and/or nominated under article 171(2)(b), (c), (d), (f) and (g); and finally, whether the section is unconstitutional for failure to require that all persons elected and or nominated as JSC Commissioners to be subjected to approval by the National Assembly.
2.
Article 171 establishes the JSC, an independent body consisting of eleven (11) members; the Chief Justice, who is the chairperson; the Attorney-General; representatives of the Supreme Court, Court of Appeal, High Court, the Magistracy; the legal profession (2); the public (2); and the Public Service Commission (PSC). The Chief Registrar is the secretary to the Commission. The JS Act declares, in part, that it is an Act of Parliament that makes “further provision with respect to the membership and structure of the Judicial Service Commission”, with section 15 providing for the procedure of appointment of members of the Commission.
3.
The constitutionality of section 15(2) of the the JS Act has also been raised as one of the issues for determination in a separate appeal before this court in Petition No 17 of 2020, Katiba Institute v Attorney General & 9 others, which was heard on June 15, 2022.
B. Background
4.
On March 9, 2018, Justice Mohammed Warsame, a justice of Court of Appeal (the 3rd respondent) was re-elected by the Justices of that court to serve a second term as their representative to the JSC in accordance with article 171(2)(c) as read with article 171(4) of the Constitution and section 16 of the JS Act. Thereafter, his name was forwarded to the President pursuant to section 15(2) of the JS Act for appointment as a member of the JSC. Instead, the President, in turn, dispatched the name to the National Assembly (the 2nd respondent) for approval before appointment pursuant to article 250(2)(b) of the Constitution. This action was the gravamen in the original grievance; whether Parliament can vet for approval a member of the JSC who has been democratically elected by his or her peers.
5.
By notices published on 21st and March 22, 2018 in the People Daily and the Daily Nation newspapers, respectively, the 2nd respondent invited views from the general public on the 3rd respondent’s suitability for the office of Commissioner of the JSC. The notices were unequivocal that the approval hearing was in accordance with the provisions of article 250(2)(b) of the Constitution as read with sections 3 and 5 of the Public Appointments (Parliamentary Approval) Act No 33 of 2011.
6.
As a consequence, the JSC and the Law Society of Kenya (the appellant) by separate letters dated 21st and March 22, 2018, respectively, objected to the intended exercise, pointing out that it was not only unconstitutional but also an interference with the independence of the nominating institution, the Judiciary (the Court of Appeal). The 2nd respondent, by a letter dated March 29, 2018 responded comprehensively but insisted that the scheduled hearing would proceed, precipitating the action before the High Court, which has culminated in this appeal after the Court of Appeal dismissed the first appeal.","F. Analysis and Determination
Jurisdiction of this court
41.
This court’s jurisdiction flows from the Constitution and the applicable statutes. See Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR. Therefore, even if the question of jurisdiction is not brought up by the parties, it is our duty, as a matter of practice to independently satisfy ourselves that we are legitimately seized of each matter before us.
42.
The appeal was brought as of right pursuant to article 163(4)(a) of the Constitution. From the petition filed in the High Court, the memorandum of appeal in the Court of Appeal, the arguments before and the judgments of the two courts below, as well as the pleadings and arguments in this court, we entertain no doubt that the subject matter in controversy involves the interpretation and application of articles 171, 248 and 250 of the Constitution. The appeal, we are satisfied, meets the principles enunciated in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Pet No 3 of 2012; [2012] eKLR. Further, on the question of constitutionality of section 15(2) the JS Act, taking a cue from our decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, SC Application No 5 of 2014; [2014] eKLR, we note that the JS Act is a normative derivative of the principles embodied in the Constitution under articles 171 and 172 and in interpreting the JS Act, the court cannot disengage from the Constitution. Furthermore, this court has previously invoked its appellate jurisdiction as of right on matters involving the constitutionality of a statutory provision in Hussein Khalid and 16 others v Attorney General & 2 others, SC Application No 32 of 2019 [2019] eKLR.
We turn to the first issue,
i.
Whether a member of the JSC elected and or nominated under article 171(2)(b), (c), (d), (f) and (g) ought to be vetted and approved by the National Assembly before appointment;
43.
Two questions arise from this ground, whether the nomination of the 3rd respondent by the President was ultra vires article 171(2)(c) of the Constitution; and whether the intended approval of the 3rd respondent by the National Assembly was a violation of article 171(2)(c).
44.
The resolution of these questions will depend on the construction and application of all the relevant articles of the Constitution. By article 259, courts are enjoined in construing the Constitution to promote its purpose, values and principles; advance the rule of law, human rights and fundamental freedoms in the Bill of Rights; permit the development of the law; and contribute to good governance.
45.
This court; In the Matter of Interim Independent Electoral Commission, SC Application No 2 of 2011; [2011] eKLR and; In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, SC Advisory Opinion No 2 of 2012 [2012] eKLR, among other decisions, has affirmed that, in interpreting the Constitution and developing jurisprudence, the court will always take a purposive and holistic interpretation of the Constitution as guided by the Constitution.
46.
The concept of holistic interpretation of the Constitution was explained in In the Matter of Kenya National Commission on Human Rights, SC Reference No 1 of 2012; [2014] eKLR, by the court as follows:
“But what is meant by a ‘holistic interpretation of the Constitution’? It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.
47.
To construe the import and tenor of any provision of the Constitution, the entire Constitution has to be read as an integrated whole, because the Constitution embodies certain fundamental values and principles which require that its provisions be construed broadly, liberally and purposively to give effect to those values and principles. Where words used in any provision of the Constitution are precise and unambiguous then they must be given their natural and ordinary meaning. The words themselves alone in many situations declare the intention of the framers because, to borrow the words of Burton, J in Warburton v Loveland, (1832) 2 D & Cl 480, the language used “speak the intention of the legislature.”
48.
Those values and principles reflect our historical and political realities and the people’s aspirations for a democratic State, built on the rule of law and respect for human rights.
49.
To apply these principles to the arguments before us, we reproduce the entire composition of the JSC in article 171(2) (a) to (h), as it is important for the determination of the question whether, the nomination by the President of the 3rd respondent, a member of the JSC, elected by his colleagues in the court was ultra vires article 171(2)(c) of the Constitution. The article is equally critical in answering the second issue, whether elected or nominated commissioners of the JSC ought to be approved by the National Assembly before appointment.
50.
The article 171(2)(c) reads as follows:
“
The Commission shall consist of –
a.
the Chief Justice, who shall be the chairperson of the Commission;
b.
one Supreme Court judge elected by the judges of the Supreme Court;
c.
one Court of Appeal judge elected by the judges of the Court of Appeal;
d.
one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates;
e.
the Attorney-General;
f.
two advocates, one a woman and one a man, each of whom has at least fifteen years' experience, elected by the members of the statutory body responsible for the professional regulation of advocates;
g.
one person nominated by the Public Service Commission; and
h.
one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.” [our emphasis]
51.
It is apparent from this provision that membership to the JSC is four- pronged; by virtue of office, for example, the Chief Justice and the Attorney-General, who remain Chairperson and member, respectively, despite the term of five years and a further one term of five years applicable to other members. There are those members who are elected by peers, namely representatives of the Justices of the Supreme Court, Court of Appeal, High Court, the Magistracy and the advocates. The third category comprises a member nominated to represent the PSC and the final category are two members, one woman and one man, not being lawyers, appointed by the President to represent the public.
52.
It is common factor that the name of the 3rd respondent was forwarded to the 2nd respondent for approval hearing ostensibly on the force of articles 132(4) and 250(2), as well as section 15(2) of the JS Act. Article 132(4) embodies the specific function of the President to-
“
(4) (a) perform any other executive function provided for in this Constitution or in national legislation and, except as otherwise provided for in this Constitution, may establish an office in the public service in accordance with the recommendation of the Public Service Commission;” (Our emphasis).
53.
This, to our mind, cannot be the basis upon which the President acted when he forwarded the 3rd respondent’s name to the 2nd respondent. Similarly, the plain language of section 15(2) does not vindicate the action, as we shall demonstrate when considering the second issue. That leaves article 250, which must be read together with article 248.
54.
Article 250 is contained in chapter fifteen. The ten commissions in the article are collectively and generally referred to as chapter fifteen commissions. Article 250 prescribes the composition of commissions, appointment and terms of office of the commissioners as follows:
“
250.
(1)
Each commission shall consist of at least three, but not more than nine, members.
2.
The chairperson and each member of a commission, and the holder of an independent office, shall be—
a.
identified and recommended for appointment in a manner prescribed by national legislation;
b.
approved by the National Assembly; and
c.
appointed by the President.
3.
To be appointed, a person shall have the specific qualifications required by this Constitution or national legislation.
4.
Appointments to commissions and independent offices shall take into account the national values referred to in article 10, and the principle that the composition of the commissions and offices, taken as a whole, shall reflect the regional and ethnic diversity of the people of Kenya.
5.
A member of a commission may serve on a part-time basis.
6.
A member of a commission, or the holder of an independent office—
a.
unless ex officio, shall be appointed for a single term of six years and is not eligible for re-appointment; and
b.
unless ex officio or part-time, shall not hold any other office or employment for profit, whether public or private.
…”. (Our emphasis).
55.
Article 248, which is also in chapter fifteen, on the other hand stipulates that:
“
(1)
This chapter applies to the commissions specified in clause (2) and the independent offices specified in clause (3), except to the extent that this Constitution provides otherwise.
(2)
The commissions are —
a.
the Kenya National Human Rights and Equality Commission;
b.
the National Land Commission;
c.
the Independent Electoral and Boundaries Commission;
d.
the Parliamentary Service Commission;
e.
the Judicial Service Commission;
f.
the Commission on Revenue Allocation;
g.
the Public Service Commission;
h.
the Salaries and Remuneration Commission;
i.
the Teachers Service Commission; and
j.
the National Police Service Commission.
3.
The independent offices are—
a.
the Auditor-General; and
b.
the Controller of Budget.”
(Our emphasis).
56.
We stress that chapter fifteen which contains articles 248 and 250 applies to all the ten commissions, including the JSC, save only “to the extent that this Constitution provides otherwise”.
57.
The Constitution provides otherwise in article 171. We have seen in paragraph 50 above, that article 171 is fully self-executing. From a plain reading of the three articles, 171, 248 and 250, it is apparent that the former was intended to apply exclusively and specifically to the establishment of the JSC, its composition, mode of appointment and term of office of its members, while article 250 was to regulate and guide on the composition, appointment and terms of office of commissions and independent offices generally. The proviso in article 248(1) acknowledges the existence of other constitutional provisions, specific to other commissions which may differ from the provisions of chapter fifteen. Chapter fifteen, for this reason, makes provisions of general application to fill in the gaps in respect of composition, appointment and terms of office of any commission.
58.
We are fortified in our conclusion by sub-article (2)(a) of article 250 which directs that, in those constitutional commissions where the procedure and manner of identification and recommendation for appointment of the chairpersons and commissioners are not provided for in the Constitution, recourse will be to national legislations. Examples of such commissions, are the Kenya National Human Rights and Equality Commission established under article 59 of the Constitution; National Land Commission under article 67 of the Constitution; Ethics and Anti- Corruption Commission under article 79 of the Constitution; Independent Electoral and Boundaries Commission under article 88 of the Constitution; and Teachers Service Commission under article 237 of the Constitution. In contrast, by article 171, the Constitution itself provides for the means of identifying and methods of appointment of each of the four categories of membership of the JSC, occasioning no need to resort to either article 250 or national legislation for this purpose.
59.
It is the lacuna in some of these commissions that article 250 seeks to fill. Where no particular provision of the Constitution specifies the number of members to a commission, the answer will lie in article 250 which, as a general guide limits such membership to “at least three, but not more than nine”. If the manner of identification and recommendation for appointment of the chairperson and each member of a commission is not specified elsewhere in the Constitution, reference must be made to article 250. In all such instances of lacuna, article 250 was intended to fill the same by directing that the appointment of the chairperson and each member shall be subject of approval by the National Assembly; and thereafter appointment by the President. The Article directs further that save for ex officio members, the rest of the member shall be appointed for only a single term of six years. Because article 171 is self-executing, these conditions do not apply to its members.
60.
To further buttress our view that article 250(1) is a general provision article, it provides that membership to each commission “shall” not consist of more than nine members, yet pursuant to article 171(2), the JSC consists of eleven (11) members. Secondly, article 250(6)(a) stipulates that a member of the commission shall be appointed for a single term of six years and is not eligible for re-election. In respect of the JSC, article 171(4) provides that members of the JSC, apart from the Chief Justice and the Attorney-General shall hold office for a term of five years and shall be eligible to be nominated for one further term of five years.
61.
Another demonstration of the divergent nature of the commissions, is in the composition of the Parliamentary Service Commission established under article 127. The membership is wholly drawn from Parliament, apart from two, one man and one woman appointed by Parliament from among persons who are experienced in public affairs, but are not members of Parliament. The mode of appointment and terms of service of its members which are distinct from those of the other commissions, are laid out in details in the Constitution itself. Like the JSC, the membership is not tied to “at least three, but not more than nine” in article 250. It has ten (10) members. In the identification, nomination and appointment of members, there is no involvement at all of the Executive, the President, or the other commissions in the process. There is also a category of commissions which, apart from merely being listed in the Constitution, are entirely left to legislations on their composition, appointment and mandate as discussed in paragraph 89 of this judgment.
62.
These are examples of how the framers expressed their intention to effectuate the doctrine of separation of powers, the hallmark of our Constitution. The direct involvement of the President in the appointment of two members to represent the public in the JSC can only be explained on the basis of the nature of the expanded functions of the JSC, including its role to advise the national government on ways of improving the efficiency of the administration of justice (See article 172(1)(e). Moreover, it is in line with the provisions of article 10 and the centrality of public participation and transparency at all levels of administration of justice. The inclusion of the PSC nominee in the JSC, on the other hand, can be explained away by the long history of the two commissions. This history is aptly captured in the Final Report of the Constitution of Kenya Review Commission (2005).
From the pre-independence era, the PSC and the JSC have been joined at the hip. The PSC has always traditionally had two nominees, and lately one in the JSC.
63.
The point we are making is that the commissions are far from being homogeneous, contrary to the submissions that they all draw from article 250. There are no typical common features between the commissions. The principle of checks and balances, the doctrines of separation of powers and independence of the three branches of Government from each other are highlighted in the deliberate distinct provisions.
64.
Having come to the conclusion that article 171 is a self-executing provision; and that it is drafted in precise and unambiguous language, then it can only be given its natural and ordinary meaning. The words used in the article speak the intention of the legislature. The intention was to have the constituents in the Court of Appeal to determine for themselves, through the ballot, the person to represent them in the JSC, without the involvement of third parties who have no interest in affairs of that court.
65.
Had the people of Kenya or the Legislature intended that all elected members of the JSC be first approved by the National Assembly before being appointed, nothing would have been easier than to expressly state so, the same way they have done for the two members representing the public. In the case of the two, article 171(2)(h) unequivocally declares that, before their appointment, the National Assembly must give an approval. As far as we can recall, since the promulgation of the Constitution, all past elected members of the JSC, except in one instance, have never been subjected to approval hearing by the National Assembly. As a matter of fact, in his first term, the 3rd respondent did not go through it, because there has never been any constitutional or legal imperative to do so. The resolve to subject him, this time round to parliamentary approval was not only in bad faith, but amounted to a breach of his legitimate expectation and a fundamental contravention of the Constitution.
66.
To suggest, as has been expressed in this appeal, that the 3rd respondent was bound to be vetted and could only qualify for appointment after approval by the National Assembly, is to attack the spirit and letter of articles 1(3) and 2(2); that sovereign power delegated to State organs, must be exercised strictly in accordance with the Constitution and that no person may claim or exercise State authority except as authorised under the Constitution. The Constitution does not permit the 2nd respondent to vet and approve an elected member of the JSC.
67.
There can be no better vetting of a representative’s suitability to a position than by peers or those whose interest he is expected to represent than in a transparent and democratic election. The electorates base their choices on considerations relevant to their needs; the needs they alone appreciate in a manner no other body can replace or replicate.
68.
Purely, by the fact of his election by the Justices of the Court of Appeal, the 3rd respondent, without more, became a member of the JSC, only awaiting the administration of the oath under article 74 of the Constitution as read with section 40(1) of the JS Act before assuming the functions of the office of Commissioner of the JSC.
69.
Our answer to the first issue, it must follow from these reasons, like the two superior courts below, is that there is no basis, constitutional or legal for a member of the JSC elected or nominated under article 171(2)(b), (c), (d), (f) and (g) to be vetted and approved by the National Assembly before appointment.
70.
We turn to the second and final issue,
ii
Whether section 15(2) of the Judicial Service Act is unconstitutional to the extent that it gives the President a role in appointment of JSC Commissioners elected and/or nominated under article 171(2)(b), (c), (d), (f) and (g), and for failure to require that all persons elected and or nominated as JSC Commissioners be subject to approval by the National Assembly.
71.
The JS Act was enacted in 2011 “to ……make further provision with respect to the membership and structure of the Judicial Service Commission;……and for connected purposes”. See the long title to the Act.
72.
Section 15(1) and (2) state that:
“
15. (1) Where the members are to be appointed by the President under article 171(2)(h) of the Constitution, the following procedure shall apply—
(a)
until after the first elections under the Constitution, the President shall, subject to the National Accord and Reconciliation Act, 2008 (No 4 of 2008) and after consultation with the Prime Minister, within seven days of the commencement of this Act, submit the names of the nominees to the National Assembly;
……
2.
Where the nominations are to be made by bodies specified under article 171(2)(b), (c), (d), (f) and (g) of the Constitution—
a.
the respective nominating body shall submit the name of its nominee to the President; and
b.
the President shall, within three days of receipt of the names, appoint the nominees as members of the Commission.” (our emphasis)
73.
The procedure of appointment set out above is divided into sub-section (1) and (2). The former is specific to appointment by the President with the approval of the National Assembly of two members under (h), one woman and one man to represent the public.
74.
Sub-section (2) on the other hand relates to members appointed in accordance with article 171(2) (b), (c), (d), (f) and (g), who are elected or nominated. The nominating bodies envisaged do not include the JSC, but are the judges of the superior courts, the Magistrates, the Law Society of Kenya and the PSC. By this sub-section those bodies are required to submit the names of their nominees to the President; and the President, in turn is expected, within three days of receipt of the names, “to appoint the nominees as members of the Commission.” Because the categories of the nominees are those elected or nominated, sub-section (2) does not require parliamentary approval, unlike those in sub-section (1). Is the omission to vet nominees in sub-section (2) unconstitutional? and what does it entail for the President “to appoint the nominees”?
75.
Before we settle these questions and the arguments proffered on this ground, it is apposite to stress two settled principles on constitutionality of a statute and the rules of interpretation of statutes. The first principle is that there is a general rebuttable presumption that every Act of Parliament is constitutional and the burden of proof lies on the person who alleges otherwise. See the decision of the Supreme Court of India in Dawakhana (Wakf) Lal Kuan, Delhi & another v Union Of India & others, (1960) AIR 554, 1960 SCR (2) 671, which has received endorsement by courts in this country, including this court in the case of Law Society of Kenya v Attorney General & another, SC Petition No 4 of 2019; (2019) eKLR. The second principle requires that in determining whether a statute is constitutional or not, the court must ascertain the object, purpose and effect of that statute; to discern the intention expressed in the Act itself. A statute cannot make provision whose effect contradicts the Constitution or places additional requirements above those set out by the Constitution.
76.
On statutory interpretation of a statute, it is emphasized that the function of the courts is to interpret the law, not to make it. A statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is, in the first place, to seek to understand the intention of its maker. Where the meaning of a provision is plain and unambiguous, no question of interpretation or construction arises. It is the duty of the judges to apply such a law as it is. But if it is open to more than one interpretation, then the court has to choose the interpretation which represented the true intention of the legislature, the legal meaning of the statutory provision. This has been underscored by this court in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Petition No 2B of 2014; [2014] eKLR.
77.
Having set out these principles to guide us in the determination of this ground and because the answer to the second limb of the ground is simple, we shall start with it. The 1st and 2nd respondents contended that, to the extent that section 15 takes away the powers of the National Assembly to vet and approve the elected members of the JSC, it is contrary to the provisions of article 250(2) of the Constitution and therefore invalid. We dispose of this argument by restating that the language of article 171 is unambiguous in so far as vetting and approval by the National Assembly is concerned. The only members who, according to article 171(2)(h), must be approved by the National Assembly after appointment by the President, are one woman and one man to represent the public. All the other members are either elected under (b), (c), (d), (e), (f) and (g), or nominated under (h) of article 171(2). An endorsement of a candidate through an election is another form of vetting by those he or she will be serving. In the instant case, it is only the judges, magistrates and lawyers who can choose for themselves their representatives. Parliament has no part to play, except to the limited extent explained earlier, in respect of the two members.
78.
The powers of Parliament to vet and approve any constitutional and statutory appointments are circumscribed as follows by section 3 of the Public Appointments (Parliamentary Approval) Act, 2011:
“An appointment under the Constitution or any other law for which the approval of Parliament is required shall not be made unless the appointment is approved or deemed to have been approved by Parliament in accordance with this Act”.
79.
Parliament will only exercise its powers to vet and approve candidates for appointment to a public office if, and only if the Constitution or any other law requires the approval of Parliament. Section 15(2) of the JS Act does not contain any requirement for approval by Parliament. Because there is no such requirement in article 171, except for (h), the arguments by the 1st and 2nd respondents that all commissioners of the JSC ought to be approved by Parliament must fail for lacking constitutional or legal foundation.
80.
We have explained elsewhere in this judgment that, it is only where the composition, appointment and terms of office of members of a commission are not provided for, that article 250 will be turned to for the answer. It is in that context that the words “approved by the National Assembly” in article 250(2)(b), must be read. Where approval by Parliament is made a condition precedent for appointment under article 171, express provision has been made. If the framers’ intention was to have all members of the JSC approved by Parliament they would not have made it as condition for some and not for other members. This ground fails.
81.
Is section 15(2) inconsistent with the Constitution for requiring that the names of the nominees under article 171(2)(b), (c), (d), (f) and (g) to be submitted to the President to; appoint the nominees as members of the Commission”? The answer to this question depends on the meaning to be ascribed to the word “appoint”, in the context in which it is used in that sub- section.
82.
The appellant, together with JSC, have maintained that sub-section (2)(b) is unconstitutional to the extent that it gives the President a role in the appointment of JSC commissioners who are elected and/or nominated under article 171(2)(b), (c), (d), (f) and (g). On the other hand, the 3rd respondent has maintained that the section cannot be construed to be unconstitutional simply because of that reason. According to him, the appointment envisaged in that sub-section is only ceremonial and anchored on article 132(2)(f) of the Constitution.
83.
But, what did the drafters mean when they wrote in the Constitution that the names of the nominees under article 171(2)(b), (c), (d), (f) and (g) shall be submitted to the President for appointment as members of the Commission?
84.
The history leading to the promulgation of the Constitution in 2010 leaves no doubt that the intention of the drafters was to have an independent JSC and Judiciary. We made reference in paragraph 62 above, to the Final Report of the Constitution of Kenya Review Commission and how it traced the evolution of the JSC from the pre-independence era to the period preceding the promulgation of the 2010 Constitution. The theme running through the Report, in so far as the JSC is concerned, is the protection of the independence of the Judiciary and by extension, the JSC which, was charged with the task of appointing judges. Once appointed, the judges could not be dismissed except as determined by a committee of Commonwealth judges, and only on the grounds for misconduct or inability to discharge their functions. It is debatable if full independence of the two institutions (the Judiciary and the JSC) was indeed realized through those provisions. The Report is, however, concerned with the Constitution and laws at the time and the intention of the drafters to insulate the two institutions.
85.
With the making of the independence Constitution in 1963, the intention seemed to have shifted to one where the Executive appeared, from the composition of the JSC to have had a measure of control over the Commission, and going into the future, the JSC and the Judiciary were no longer regarded as truly independent of the Executive. Nothing demonstrates this capture more clearly than the composition of the JSC in section 68(1) of the former Constitution, as follows:
“
68.(1) ……
a.
The Chief Justice as chairman
b.
The Attorney-General
c.
Two persons who are for the time being designated by the President from among the puisne Judges of the High Court and the Judges of the Court of Appeal
d.
The chairman of the Public Service Commission”.
86.
From its composition, the pre-2010 JSC was more Executive than Judicial. This changed following the clamour for constitutional review, to address among other concerns, a truly independent Judiciary and its institutions. Today, the judges and not the President, decide who among them represents those courts. Any interpretation of the Constitution, whose effect is to negate these gains, would in itself be invalid. Kenyans expressed themselves clearly that they did not want to repeat history. They wanted the role of the President in the affairs of the JSC to remain minimal. Today, article 249(2) proclaims this independence of chapter fifteen commissions by declaring that they—
“
a.
are subject only to this Constitution and the law; and
b.
are independent and not subject to direction or control by any person or authority”.
87.
Article 251 guarantees true independence of the JSC, not only by re-stating its independence from direction or control by any person or authority, but by securing the tenor of the Commissioners, who can be removed only in accordance with that article. Its financial autonomy, with a separate vote is equally assured.
88.
Based on the foregoing historical background, it is our considered view that a purposive interpretation of all the above-mentioned articles will lead to the inevitable conclusion that there was no intention of the framers to subject the 3rd respondent or, for that matter, any of the elected members of the JSC to an “appointment” by the President. It is a contradiction in terms and an inherent absurdity to suggest that members elected by their peers or nominated by a state organ can, at the same time be “appointed” by a different person or authority.
89.
There can be no justification for the invocation of article 250(2) as the basis for the requirement of appointment by the President of the 3rd respondent as a member of the JSC. Where the framers intended to vest in the President the power to appoint members of the Chapter Fifteen commissions, they expressly provided for it. For example, the Constitution in various articles authorises the President to appoint members of four of the ten Chapter Fifteen commissions, namely, the Commission on Revenue Allocation; the Public Service Commission; the Salaries and Remuneration Commission; and the National Police Service Commission. Two commissions, the Parliamentary Service Commission and JSC are created by articles 127 and 171, respectively, as self-executing commissions, with clear mode of identification, qualification, appointment and terms of their commissioners independent of a third party. The Constitution does not make provision on the composition, appointment and terms of office of commissioners of the remaining four commissions, the Kenya National Human Rights and Equality Commission; the National Land Commission; the Independent Electoral and Boundaries Commission; and Teachers Service Commission. The appointments envisaged in article 250 relates to the first and the last four categories of commissions, namely, where there is express power to the President to appoint members or where no express provision has been made, national legislation provides.
90.
In view of the foregoing background, analysis and conclusion, we do not accept the 3rd respondent’s argument that the power of the President to “appoint” him under that section is only ceremonial and anchored on article 132 (2)(f) of the Constitution. Unfortunately, our reading of article 132(2) does not yield this conclusion. The article provides that:
“(2) The President shall nominate and, with the approval of the National Assembly, appoint, and may dismiss—
a.
the Cabinet Secretaries, in accordance with article 152;
b.
the Attorney-General, in accordance with article 156;
c.
the Secretary to the Cabinet in accordance with article 154;
d.
Principal Secretaries in accordance with article 155;
e.
high commissioners, ambassadors and diplomatic and consular representatives; and
f.
in accordance with this Constitution, any other State or public officer whom this Constitution requires or empowers the President to appoint or dismiss.” (our emphasis)
91.
This article applies to State or public officers, who are named in (b), (c), (d), (e) as well as those to whom the Constitution empowers the President to appoint or dismiss (f). The JSC commissioners are not such officers. We believe and hold the firm view that the President can only exercise the functions, whether formal or ceremonial, donated to him by the Constitution. The President has no ceremonial role in the appointment of elected and nominated commissioners of the JSC.
92.
To “appoint”, according to Black’s Law Dictionary, 9th Ed at page 116, means;
“
the designation of a person, such as a non-elected public official, for a job or duty; especially naming of someone to a non-elected public office” (our emphasis).
93.
As an act of assigning a position to an elected public official, then appointment in section 15 by the President of elected or nominated members of the JSC would offend article 171 of the Constitution.
94.
The two past elections of the representative of the Court of Appeal in 2013 and 2018 were conducted by the Independent Electoral and Boundaries Commission, pursuant to article 88(4) of the Constitution, section 4 of the Independent Electoral and Boundaries Commission Act and later rule 3.1 of the Court of Appeal of Kenya Election Rule, 2013. Upon declaration of the 3rd respondent as duly elected representative of the court, the IEBC issued him with a certificate to confirm his election. This has been the practice with respect to elections of all members of the JSC under article 171(2)(b), (c), (d) and (f).
95.
To complete the process, like in all cases where it conducts elections, the IEBC issues the elected member with a certificate of election and further publishes a gazette notice confirming the outcome of the elections of those members. This is followed by the taking of oath of office before the Chief Justice, in accordance with article 74 as read with section 40(1) of the JS Act before the members assume the functions of the office of Commissioner of the JSC.
96.
Traditionally as a practice carried over from the old constitutional order, the President has always issued a gazette notice to signify the appointment of elected or nominated representatives in the JSC. With the new order, it is our view that this role ought to be played by the IEBC but certainly not the President. Article 260 of the Constitution defines gazette as “the Kenya gazette published by the authority of the national government, or a supplement to the Kenya Gazette.” This court considered the significance of a gazette notice as a medium of general public information in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013; [2014] eKLR.
97.
In the context of chapter fifteen commissions, there are instances where national legislations specifically impose a duty on the President to publish in the official gazette the names of the chairpersons and members. Examples of such legislations are the PSC Act, the IEBC Act, the National Police Service Act, and the Salaries and Remuneration Act, all of which provide in nearly identical terms that:
“The President shall, within seven days of the receipt of the approved nominees from the National Assembly, by notice in the Gazette, appoint the chairperson and members approved by the National Assembly”.
98.
While there is no similar provision in the JS Act in respect of the JSC nominees, the Parliamentary Service Act donates this function to its secretary. Rule 5 of the First Schedule of the Parliamentary Service Act provides:
“
If both Houses of Parliament approve a person recommended under paragraph 3, the Secretary shall, within seven days after the approval, publish the name of the person in the Gazette”.
That is why we have stressed in the previous paragraph that with the new constitutional order, it is our view that this role ought to be played by the IEBC or even the commission’s secretary, as is the case in the Parliamentary Service Commission, but certainly not the President.
99.
We reiterate, in conclusion, that under article 171(2) the scope of the President’s power to appoint members of the JSC is limited to two persons, a man and a woman, who are not lawyers, to represent the public. The Constitution does not require that the names of nominees, other than the representatives of the public, be submitted to the President for appointment. Contrary to this, section 15(2)(a) and (b) requires nominating bodies to submit nominees’ names to the President for appointment as members of the Commission. To that extent, section 15(2)(a) and (b) is contrary to article 171(2)(b), (c), (d), (f) and (g) which insulates the process of appointment of nominated and elected members of the JSC and undergirds the independence of the Judiciary and JSC from manipulation by the Executive. There is nothing in article 131(a) or 132 of the Constitution to suggest that the President as the Head of State and Government can appoint elected members of the JSC.
100.
To give the President power to appoint or even to “appoint” by mere gazettement of names is to forget our history and the mischief article 171 was intended to cure.
101.
In the result, and to the extent that section 15(2)(b) of the JS Act donates to the President the power to appoint elected and nominated members of the JSC, it is void for being inconsistent with article 171 of the Constitution which does not recognize such power. We restate that section 15(2) goes against the letter and spirit of articles 1(3) and 2(2) which stipulates that sovereign power delegated to State organs, must be exercised strictly in accordance with the Constitution and that no person may claim or exercise State authority except as authorised under the Constitution.
102.
The appeal is accordingly allowed.
G. Costs
103.
Costs follow the event and is a discretion of the court. Being a matter of public interest, we direct each party to bear its own costs.
Dissenting Opinion of Njoki Ndungu, SCJ
104.
I have had the advantage of reading the majority decision in this appeal and I find that I can only agree with them that this court has jurisdiction and is properly seized of the appeal. I am however, with profound respect, of a different opinion on their findings in response to the following issues:
i.
Whether a member of the JSC elected under article 171(2)(b), (c), (d), (f) and (g) ought to be vetted and approved by the National Assembly before appointment;
ii.
Whether section 15(2) of the Judicial Service Act is inconsistent with the Constitution to the extent that it gives the President a role in appointment of JSC Commissioners elected and/or nominated under article 171(2)(b), (c), (d), (f) and (g) or for failure to require that all persons elected and or nominated as JSC Commissioners be subject to approval by the National Assembly.
I proceed to explain why.
105.
In my view, to determine whether section 15(2) of the JS Act is inconsistent with the Constitution, three questions that come to the fore must be answered. Namely, does the President have a constitutional obligation to appoint JSC Commissioners? If the answer is in the affirmative, can the President do so without approval of the National Assembly? And, in appointing elected JSC Commissioners, will the President interfere with the independence of the JSC?",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/19/eng@2023-03-31
Petition 9 of 2019,Ngugi v Commissioner of Lands; Owindo & 63 others (Interested Parties) (Petition 9 of 2019) [2023] KESC 20 (KLR) (31 March 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"SC Wanjala,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",31 March 2023,2023.0,Nairobi,Civil,Ngugi v Commissioner of Lands; Owindo & 63 others,[2023] KESC 20 (KLR)               ,,"A. Introduction
1.
Land as a resource is one of the most important means of livelihood for many people in developing countries and remains an emotive issue. It has been cited as an obstacle to social cohesion and economic growth in Kenya since independence. That should explain why Kenya’s Vision 2030 (2008) identified the absence of a national land policy as the reason the country has had weak land administration, which in turn has led to historical land injustices amongst some communities. Today, the Constitution devotes the entire chapter 5 to matters relating to land and environment, and directs that land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable. It guarantees equitable access to land; security of land rights; as well as transparent and cost- effective administration of land.
2.
The Constitution further outlines definitions of land and land systems in Kenya and sets out a land legislative obligation on Parliament, to revise, consolidate and rationalise existing land laws. Pursuant to this edict, Parliament has enacted new land laws to replace some of the past land law regimes.
3.
One of such repealed laws is the Government Lands Act (cap 280), which conferred powers upon the President of Kenya to make grants or dispositions of any estates, interests or rights over unalienated government land. The powers were delegated in specified cases to the Commissioner of Lands.
4.
At the heart of this appeal is a controversy concerning proprietary interest over unalienated government land which was allocated to Dickson Ngigi Ngugi, the appellant under the Government Lands Act (repealed).
B. Background
5.
Sometime in 1969, the appellant’s application for grant of unalienated government land in Nakuru was approved by the then Minister for Lands and Settlement. Subsequently, the Commissioner of Lands (the respondent) issued him with a letter of allotment dated June 7, 1977 to an unsurveyed parcel of land described as LR No 519/223 (the suit land) located in Njoro Township and comprising 118 hectares (approximately 291 acres). The grant was subject to a number of conditions. For example, the appellant was required to accept the offer contained in the letter of allotment and to pay allotment fees in the sum of Kshs 6,484.15/-; the land was to be used for agricultural purposes only; the allocation was initially for a period of three years; payment of annual rent of Kshs 2,354 within the first three years; and upon expiration of the three years, the appellant was entitled to a free hold title provided that he had developed the land to the satisfaction of the District Agricultural Officer and paid a purchase price of Kshs 235,400/-.
6.
The appellant accepted the offer and paid the allotment fees. Consequently, the respondent directed the Director of Surveys to undertake the survey of the suit land. However, the surveyor, by a letter dated January 10, 1978 to the Director of Surveys expressed his inability to complete the exercise due to interference by the District Commissioner of the area through the police. The matter was escalated to the Provincial Surveyor, who upon consulting the District Commissioner, directed the suspension of the survey.
7.
It was the Clerk of the then County Council of Nakuru who in his letter of July 20, 1981 explained to the appellant that at the time the suit land was allotted to him, the people of Njoro had been cultivating it with the authority of the Government for several years; and that as a matter of fact, the District Commissioner of Nakuru had in the past encouraged the people in the area to continue utilising the suit land until they were otherwise instructed by the Government.
8.
A new development arose in 1982 when the Rift Valley Provincial Planning Officer submitted to the respondent for approval a part development plan (PDP) with respect to a portion of the suit land which was set apart for the construction of Egerton College (now Egerton University) staff residential houses. Initially, the request was declined by the respondent. However, after exchange of numerous letters and being satisfied that the proposed PDP did not encroach on any private property, the respondent approved it and the sub-division of portions of the suit land began in 1984 with local residents seeking to benefit from the sub-division exercise.
9.
So as not to be left behind, the appellant too approached the Provincial Commissioner of the former Rift Valley Province with a request to be considered afresh for allocation of a portion of the suit land disclosing his long-running interest over it. This time round, the Provincial Commissioner supported his bid by writing to the respondent on May 21, 1984 to consider allocation of a portion of the suit land to the appellant, justifying this intervention on the ground that the appellant was unable to fully benefit from the initial allocation of the suit land due to occupation by local people who had been authorized to cultivate it.
10.
To support the appellant’s application, the District Agricultural Officer also wrote to the respondent on December 10, 1985 to confirm that the appellant had developed and utilized about 48 of the 50 acres of the suit land by planting sunflower; and that he had paid Kshs 40,500 being the purchase price for this portion. It was on that basis that the appellant was granted a lease over 50 acres out of the said land.
11.
It would appear that the appellant was still aggrieved by the respondent’s decision allocating part of the suit land to other parties and ignoring the letter of allotment it had itself issued to him.
","F. Analysis and Determination
Jurisdiction under article 163(4)(a) of the Constitution
36.
Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1,
“jurisdiction is everything. Without it, a court has no power to make one more step”.
37.
It is, therefore a basic rule of procedure that jurisdiction must exist when the proceedings are initiated. Because the question of jurisdiction is so fundamental, a limitation on the authority of the court, it can be raised at any stage of the proceedings by any party or even by the court suo motu. As a matter of practice, this court has a duty of jurisdictional inquiry to satisfy itself that it is properly seized of any matter before it.
38.
It is a settled legal proposition that conferment of jurisdiction is a legislative function and it can only be conferred by the Constitution or statute. It cannot be conferred by judicial craft. See Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR. Nor can parties, by consent confer on a court power it does not have.
39.
Applying these principles to this appeal, we have in the previous paragraphs noted that both the respondent and interested parties in their respective submissions have questioned our jurisdiction to determine this appeal since it does not raise any issue or issues involving the interpretation or application of the Constitution.
40.
Article 163(4) has been the subject of interpretation by this court in a long line of decisions as we are shortly to demonstrate. By those authorities, it is now firmly settled that appeals from the Court of Appeal will lie as of right to this court under article 163(4)(a) and (b) of the Constitution, if they involve constitutional interpretation and application, or upon certification, by either the Court of Appeal or this court, that they involve matters of general public importance.
41.
To ascertain whether or not the jurisdiction has been properly invoked the court will consider the nature of the pleadings and proceedings in the trial court, the remedy or remedies sought and the decisions of the superior courts below. The onus of proving that the appeal involves a question of constitutional interpretation or application, is upon the party relying on article 163(4)(a). The court does not automatically acquire jurisdiction merely because a party claims in their pleadings or submissions that the appeal concerns an issue of constitutional interpretation or application.
42.
A party must also identify with precision the relevant Articles of the Constitution that were the subject of interpretation or application and show that the subject of the appeal before this court was the same one upon which both the High Court and the Court of Appeal based their respective decisions. Where the decision being challenged on appeal has nothing or little to do with the interpretation or application of the Constitution, such a decision cannot be the subject of a further appeal to this court under the provisions of article 163(4)(a). These considerations are constant and have to be satisfied whether a matter is originated as a judicial review application or a constitutional reference.
43.
These are the ratio decidendi to be extracted from our decisions in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd, SC Petition No 3 of 2012; [2012] eKLR, Hassan Ali Joho & another v Suleiman Said Shahbal & others, SC Petition No 10 of 2013; [2014] eKLR, Peninah Nadako Kiliswa v Independent Electoral & Boundaries Commission (IEBC) & 2 others, SC Petition No 28 of 2014; [2015] eKLR and Zebedeo John Opore v Independent Electoral and Boundaries Commission & 2 others, SC Petition No 32 of 2018; [2018] eKLR.
44.
The appeal before us is expressed to be brought pursuant to the provisions of articles 2(4) and 163(4)(a) of the Constitution, section 15(2) of the Supreme Court Act, 2011, rules 30 and 32 of the Supreme Court Rules, 2011. This is so even though the events giving rise to the cause of action took place before the promulgation of the Constitution in 2010. The appellant has been categorical that his appeal falls squarely within article 163(4)(a).
45.
The genesis of the dispute is a letter of allotment dated June 7, 1977 granting the appellant an unsurveyed agricultural land, whose terms he admittedly did not fulfill, with the result that it reverted to the government, which in turn allocated it to third parties, including the interested parties in 1984. The appellant himself was a beneficiary of 50 acres in the second phase of allotment. He went to court in 1993 to challenge the new allotments, way before no one imagined there would be constitutional reforms which would culminate in the passage of the 2010 Constitution.
46.
The High Court (Dulu, J) dismissed the application on January 19, 2010, seven months before the promulgation of the Constitution. The first appeal to the Court of Appeal was determined on February 8, 2019, and the instant appeal lodged on March 18, 2019. These dates are significant to show that, although the cause of action arose during the former constitutional order, violations committed in that period can be redressed under this Constitution. Indeed, the court has consistently entertained appeals from the Court of Appeal arising from decisions on violations of the former Constitution. For example, Hon Gitobu Imanyara & 2 others v The Honourable Attorney General, SC Petition No 15 of 2017 and Monica Wangu Wamwere & 5 others v The Honourable Attorney General, SC Petition No 26 of 2019 (Consolidated with Petition Nos 34 & 35 of 2019), in a long list of others. In entertaining all those appeals, the court had to be satisfied that they met the strictures of article 163(4).
47.
The question before us, is whether this appeal meets the criteria for invocation of article 163(4)(a) as enunciated in Lawrence Nduttu (supra), Hassan Ali Joho (supra), Peninah Nadako Kiliswa (supra), among other decisions. In other words, does this appeal involve constitutional interpretation or application; if the grievance presented before this court is one involving a question or questions of constitutional interpretation or application, is it the same question or questions that engaged the two courts below, and upon which both courts based their respective decisions?
48.
The cause was presented to the High Court as a judicial review application for prerogative orders of mandamus and prohibition. In Peninah Nadako Kiliswa (supra), the court proclaimed that whether a matter is originated as a judicial review application or a constitutional reference, the considerations of article 163(4)(a) are the same.
49.
We have studied the entire record and observe that in the motion for judicial review, the appellant was concerned, not with breach of any of his constitutional rights and fundamental freedoms but with the respondent being directed to issue to him a lease of the entire suit land and to be prohibited from proceeding with the sub-division of the suit land or alienating it to the interested parties. In the entire motion, the statement and affidavit there is no mention of even a single provision of the Constitution.
50.
The two reasons for the dismissal of the application by the High Court were to do with the appellant’s failure to comply with the requirement of developing of the suit land within 3 years from June 1977. Secondly, the court held that an order of prohibition was infective to deal with third parties who had been allotted parts of the suit land. The appellant, the court concluded, ought to have applied for cancellation of those allotments by an order of certiorari but failed. In other words, there was no determination of any question of constitutional nature.
51.
There having been no constitutional question before the High Court, none was expected to arise in the Court of Appeal, which affirmed the decision of the High Court. The Court of Appeal confined its consideration of the first appeal to the inordinate delay of over 15 years to institute the judicial review proceedings; that at the time the appellant moved the High Court, the land had been allocated to third parties and character changed. The court also held, in agreement with the High Court, that in the absence of a registrable lease and having failed to fulfill the mandatory conditions for grant of lease, the appellant had no legal or equitable proprietary interest in the suit land which could be enforced by an order of mandamus; and that without an order of certiorari to quash the fresh allotments, an order of mandamus would not be efficacious or appropriate. For these reasons, the Court of Appeal too found no substance in the application and dismissed it. Again, it is important to note that in the entire judgment there is no reference to any provision of the Constitution.
52.
Before this court however, the appellant expressly cites article 163(4)(a) of the Constitution on the face of the petition but proceeds to ask the court to determine whether his right to property within the meaning of section 75 of the former Constitution was violated in so far as the government failed to allocate to him the entire 118 Hectares of the suit land, despite issuing to him a letter of allotment; that he had a right not to be subjected to arbitrary exercise of public power under section 82 of the repealed Constitution; and that he had a right to redress under Section 84 of the repealed Constitution.
53.
From the decisions of the two superior courts below which we have summarized above, no such question was presented or determined. As a matter of fact, the appellant has referred to sections 75, 82 and 84 of the retired Constitution for the first time in his pleadings before this court. The mere citation of constitutional provisions in the pleadings itself does not bring an appeal within the scope of article 163(4)(a) of the Constitution.
54.
We come to the inevitable conclusion, on this issue, that the appellant has failed to directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution; and that the matter turned on purely factual issues as applied to a statute, the Government Lands Act (repealed), for which reason this court lacks jurisdiction to determine this appeal.
55.
Having arrived at this conclusion, and as intimated earlier, we can only consider the second issue in this appeal, if in our opinion the appeal presents exceptional circumstances or distinctive opportunity for the court to provide interpretive guidance on the question, as was the case in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2013] eKLR; In the Matter of the Speaker of the Senate & another, Advisory Opinion Reference 2 of 2013; [2013] eKLR; and Sonko v Clerk, County Assembly of Nairobi City & 11 others, SC Petition 11 of 2022; [2022] KESC 26 (KLR).
56.
This is another of those cases where we must down tools at this stage, as no purpose will be served in considering the merits of the appeal beyond what we have said on the jurisdiction, which is sufficient to dispose of the appeal.
57.
We accordingly dismiss this appeal for want of merit.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/20/eng@2023-03-31
Petition 2 (E003) of 2022,MAK v RMAA & 4 others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (2 March 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",2 March 2023,2023.0,Nairobi,Civil,MAK v RMAA & 4 others,[2023] KESC 21 (KLR)               ,,"A. Introduction
1.
This appeal raises fundamental legal issues pertaining to parental access of a child, custody of a child, best interest of the child, parental rights after a child has attained the age of eighteen (18), and the application of foreign judgments in our jurisdiction. This case also involves the protracted dispute between the appellant and the 1st respondent over the custody, upbringing, and welfare of their child.
2.
The appeal challenges the decision of the Court of Appeal (Kiage, Sichale, and J Mohammed JJA) delivered on June 4, 2021 which affirmed the decision of the High Court (Muchelule, J). Both courts dismissed the appellants case for child custody and access.
B. Background
3.
The appellant and the 1st respondent got married on August 2, 2002 under the African Christian Marriage and Divorce Act cap 151 (Repealed) and were blessed with a son, FKA (the child), born on February 12, 2004. The marriage between the appellant and 1st respondent broke down and the appellant petitioned for its dissolution in Milimani Chief Magistrate’s Divorce Cause No 75 of 2008 .The marriage was dissolved on October 9, 2008.
4.
Prior to the dissolution, the parties had entered into a Parental Responsibility Agreement (PRA) on May 15, 2008 before the Milimani Children’s Court in Misc Case No 36 of 2008. The terms of the PRA were that:
a)
Both parents were to have joint legal custody of the child;
b)
The appellant was to have actual custody of the child, with the 1st respondent having unlimited access rights to the child with notice, and such access not being unreasonably denied;
c)
The 1st respondent was to secure the schooling needs of the child and be responsible for the child’s school fees and all school-related expenses, and the decision as to which school the child would attend was to be agreed upon after mutual consultation;
d)
The 1st respondent was to provide the child with a medical cover with a reputable medical provider for both in-patient and out-patient, and was to further deposit Kshs 300,000/=being security to cover any medical and emergency and incidental case, and such money was to be in the petitioner’s account;
e)
The 1st respondent was to pay Kshs 115,000/= monthly for maintenance, beginning July 1, 2008;
f)
The 1st respondent was to cause the transfer of a Flat at Zenith Gardens, Brookside LR No [particulars withheld] into the appellant’s name and complete the payment by the remaining installments of the loan on the said property to Central Bank of Kenya; and
g)
The parties agreed to abide by the terms of the agreement and act in the best interests of the child.
5.
In the year 2014, the appellant, who was living with the minor in Kenya, moved to York in the United Kingdom to pursue a Masters degree in Law. The 1st respondent gave the appellant his consent for her to be accompanied by the child to the United Kingdom. The situation turned murky at this point because the parties turned on one another. It was the appellant’s case that the 1st respondent, who comes from an allegedly influential family which is highly revered and respected, used his influence in London and falsely accused her of having intentions to injure the child with the aim of having her arrested.
6.
On the other hand, in his sworn testimony, the 1st respondent deposed that, as a consequence of complaints made to him by the child, he contacted the National Society of Prevention of Cruelty to Children in the United Kingdom and they sent social services to speak to the minor. During all these incidents, the appellant averred that she succumbed to illness causing her to relocate back to Kenya.
7.
What is clear from the record is that the appellant applied for a Child’s Arrangement Order, in the United Kingdom, dated December 22, 2014 for the child to live with her. The 1st respondent cross applied for a Child Arrangement Order that the child would live with him. He also applied for a prohibited steps order to prohibit the appellant from removing the child from the jurisdiction of England and Wales.
8.
On August 7, 2015, the Family Court in United Kingdom High Court of Justice Family Division 2017 EWHC 2048 (Fam) Family Court Cause No YO14P00779 at York determined that it had jurisdiction to determine these applications. Heaton QC made several declarations key among them that: the minor was habitually resident in England and Wales, the minor was not habitually resident in any other jurisdiction, whilst the child continued to be habitually resident in England and Wales, the English Courts retained jurisdiction to determine any issue in respect of parental responsibility, and any application for the enforcement, clarification or in respect of contact between the child and the mother was to be made to the English Court and in particular HHJ Heaton QC or to the High Court Judge sitting in the Family court.
9.
The English Court also recorded that the appellant had on at least one occasion hit her son causing him physical harm; the minor had made allegations that the appellant repeatedly hit him; the appellant had been charged with the criminal offence of child cruelty and a criminal trial was pending; the appellant had failed to attend two hearings in respect of the criminal charges and a warrant had been issued for her arrest.
10.
The record reveals that, meanwhile, the appellant filed Nairobi High Court Misc Suit No 124 of 2015 seeking for the PRA to be adopted as an order of the court with the High Court (Muigai, J) granting the order on December 17, 2015. At this point, the 1st respondent had moved from the United Kingdom and was now residing in Tanzania, but the child was still in boarding school in the United Kingdom.
11.
Armed with the order from the High Court adopting the PRA, the appellant went to the High Court at Dar-es-Salaam in Tanzania in Civil Application No 404 of 2016 seeking to have the order dated December 17, 2015 enforced under the Reciprocal Enforcement of Foreign Judgments Act (cap 8, RE 2002). The appellant obtained an ex parte order on August 3, 2016 to register the order for purposes of enforcing the order against the 1st respondent, who was living in Tanzania at the time. The 1st respondent made an application in the High Court of Tanzania being Civil Application No 516 of 2016 asking the court to set aside this ex parte order.
12.
We note that, at some point during the pendency of the Tanzanian proceedings, the appellant instituted proceedings at the Kenyan High Court.
13.
The High Court of Tanzania meanwhile concluded the case before it and rendered its decision on July 22, 2017. It held that for a foreign judgment to be enforced in Tanzania under section 3(1) of the Reciprocal Enforcement of Foreign Judgments Act (cap 8) of the Laws of Tanzania as read with order 2 of the Reciprocal Enforcement of Foreign Judgments (Extension of Part II) Order, GN No 9 of 1936, the country from which the said judgment originated must be a country which is listed in the first column of the schedule of the order as one of the countries which have an agreement of enforcing their judgments with Tanzania and that Kenya did not have such an agreement with Tanzania. The court also found that, under section 2 of the Judgment Extension Act (cap 7, RE 2002), decrees from Kenya that can be executed in Tanzania are only those that relate to debts, damages or costs and that the parental responsibility agreement did not fall in either of those categories.","E. Analysis
(i) Whether this court has jurisdiction under article 163 (4) (a) of the Constitution to hear and determine this appeal.
37.
The 1st respondent contends that this court has no jurisdiction to entertain this matter as it neither raises issues of constitutional interpretation or application as provided for under article 163(4)(a) of the Constitution nor falls under the ambit of a matter of general public importance under article 163(4)(b) of the Constitution.
38.
This court’s decisions, as to whether the jurisdictional threshold set out under article 163(4)(a) of the Constitution has been met, are legion. See Lawrence Nduttu and 6000 Others v Kenya Breweries Ltd & Anor, SC Petition No 3 of 2012; [2012] eKLR; Hassan Ali Joho and Anor v Suleiman Said Shalabal & 2 Others [2014] eKLR; Erad Supplies and General Contractors Ltd v NCPB, SC Petition No 5 of 2012, [2012] eKLR and Aviation and Allied Workers Union of Kenya v Kenya Airway Ltd & 3 others, SC Petition No 4 of 2015; [2017] eKLR.
39.
In particular, in Rutongot Farm Ltd v Kenya Forest Service & 3 others, SC Petition No 2 of 2016; [2018] eKLR this court held at paragraph 18:
“
(18)
As can be deduced from the above quoted cases, in order to evaluate the jurisdictional standing, the test is whether the appeal raises a question of constitutional interpretation or application and whether such a constitutional issue has been canvassed in the superior courts leading to the present appeal. In order to establish that fact, the court needs to ask itself the following questions:
(i)
What was the question in issue at the High Court and the Court of Appeal?
(ii)
Did the superior courts dispose of the matter after interpreting or applying the Constitution?
(iii)
Does the instant appeal raise a question of constitutional interpretation or application, which was the subject of judicial determination at the High Court and the Court of Appeal?”
40.
In this context, as outlined in earlier parts of this judgment, in the High Court, the appellant invoked articles 27, 28, 29, 43, 45, and 53 of the Constitution in alleging that her constitutional rights and freedoms and that of the child had been contravened. She has consistently claimed, in both superior courts, that the 1st respondent caused the child to be admitted as a ward of the United Kingdom Court which infringed on the child’s right to Kenyan nationality and citizenship.
41.
However, in as much as the learned Judge in the trial court ‘was not satisfied that the amended petition was precisely framed to disclose the facts relied on, and the injury suffered, to support the constitutional provisions alleged by the petitioner as having been violated and infringed’, the learned Judge delved into the issue of the best interests of a child as enshrined in article 53 (2) of the Constitution. The learned judge at paragraphs 25 and 26 of his judgment stated:
“
25.
The primary subject of this dispute is a child. The case involves the protracted dispute between the petitioner and the 1st respondent over the custody, upbringing and welfare of their child. Under article 53(2) of the Constitution and section 4(3) of the Act, this court is commanded to treat the best interests of the child as the first paramount consideration.……
26.
The best interests of the child herein will be served where the court adopts a course of action that safeguards and promotes his rights and welfare. The court will ensure that he has shelter, food, clothing, education and medical care. His best interests will be served where he has parental guidance, and where such guidance is provided by, as much as it is possible, both parents. The child is entitled to be allowed a suitable, conducive and loving environment in which to grow and develop.”
42.
On this basis, learned trial judge determined what was in the best interests of the child according to article 53 of the Constitution but nevertheless concluded that the 1st respondent had not infringed or violated any of the fundamental rights and freedoms pleaded, either against the appellant or against the child. He was also of the view that it had not been shown that any such rights and freedoms were likely to be infringed or violated against the appellant or the child.
43.
On its part, the appellate court though primarily focusing on the PRA, spoke on the best interests of the child in the following terms:
“
It is certainly not in the best interest of the minor that he should be left in the care of a mother who causes him physical and mental harm……. Moreover, courts are enjoined to consider the ascertainable wishes of a child when deciding on what is in his or her best interest.”
44.
It is evident that the running theme in both superior courts was the enforcement of parental rights vis a vis children’s rights. This is still the case in the matter before us where the issues of parental rights and the child’s best interests pursuant to article 53 of the Constitution are largely in issue. In addition, the appellant claims that her right to a fair hearing has been breached in both superior courts and she has been condemned, as an unfit mother, unheard. All these facts bring this matter within our jurisdiction under article 163 (4) (a) of the Constitution.
(ii) Whether the High Court and Court of Appeal properly applied the decisions issued by the Family Court in the United Kingdom in arriving at their determination.
45.
The appellant was emphatic that the superior courts deferred to the English Court’s judgment when they applied its decision and orders in the instant matter. She contended that the trial court proceeded on the premise that the English Court is superior to the High Court which, she argues, cannot be. She maintained that the High Court was bound by its determination and orders on parental responsibility. She urged that the superior courts could not abandon their responsibility to another foreign court. The 1st respondent on the other hand argued that the minor was residing in the United Kingdom all along thus it was proper for the English Courts to make its judgment which was the basis of the trial court finding that the parental agreement was no longer reflective of the child’s legal or factual position.
46.
The question that arises is whether the superior courts deferred to the English Court by disregarding Kenyan Law as well as a High Court order that was in force while determining the matter that was before them. In other words, were the superior courts bound by the English Court judgment?
47.
At the High Court, the learned judge delivered himself as follows:
“
(34)
I reiterate that the child was heard by the Family Court in London. He was categorical that he had been physically and emotionally abused by the petitioner, and did not want any contact with her. I find that in particular circumstances of this case, the best interests of the child will be served by the parties obeying the orders that were granted by the Family Court in London in the United Kingdom on May 11, 2017. These orders, I find, were in line with the protection afforded to a Kenyan child under the Constitution, the Children Act and the international instruments that Kenya is party to.”
48.
The learned judges of the Court of Appeal in determining the appeal before them held as follows;
“
We further observe that based on the Cafcass Family Court report, the United Kingdom High Court made the minor a ward of the court, “until his 18th birthday or until further order to the contrary”. The court further held that the parental responsibility agreement was not reflective of the child’s current legal and factual position. The court directed that the appellant should not have direct contact with the minor. And it is these findings that largely informed the learned Judge’s conclusions that the appellant’s petition was unmeritorious.
With respect, we concur with and affirm the learned Judge’s conclusions as being based on the evidence availed and reflective of a proper exercise of discretion. It is noteworthy that fundamental changes have occurred in the lives of the parties and the minor since the recording of the parental responsibility agreement dated 2008, including the fact that the parties and the minor are no longer resident in Kenya. The assault accusation made by the appellant, an which the United Kingdom High Court found true, is especially critical in this matter and not one to be taken lightly.’ (emphasis ours)”
49.
It is evident that the determinations made by the learned judges of the superior courts relied on the findings by the English Court. However, the English Court did not consider the significance of the PRA and the consequences of its violation.
50.
We have also considered the provisions of the Evidence Act, chapter 80, Laws of Kenya on matters which the court can take judicial notice of and judgments from foreign courts do not fall within the purview of the issues for consideration on judicial notice.
51.
We are therefore constrained to fault the learned judges of the Court of Appeal in placing credence on the findings of the family court in English Court which largely disregarded the PRA; an agreement that could not be violated without consequence. In addition, the PRA, a binding agreement between both the appellant and the 1st respondent could only be terminated by the High Court.
iii) What is the status of the PRA?
52.
The English Court (Mrs Justice Parks in Family Court Cause No XXXX) on May 11, 2017, stated as follows at paragraph 30 of her judgment:
“
I shall make a declaration as to habitual residence in terms of paras. 1, 2 and 3 of the initial declarations. I shall record that the Kenyan parental responsibility agreement reached by the parties in 2008 is no longer reflective of the child’s legal or factual position and was not at the time when the mother issued her application in the Kenyan High Court for registration of that agreement on 1 September 2015, in that the child was no longer in the care of the mother.”
53.
Both superior courts adopted this finding on the PRA. It is curious that although the trial Judge, in his judgment, referred to how PRA’s are vacated, he ended up deferring to the English Court’s declaration that the PRA was no longer reflective of the child’s legal or factual position.
54.
The Children Act, 2001 (No 8 of 2001) (repealed) provided in section 26 as follows:
“
26.
Parental responsibility agreement, etc.
(1)
A parental responsibility agreement shall have effect for the purposes of this Act if it is made substantially in the form prescribed by the Chief Justice.
(2)
A parental responsibility agreement may only be brought to an end by an order of the court made on application by—
a.
any person who has parental responsibility for the child; or
b.
the child himself with the leave of the court.
3.
The court may only grant leave under subsection (2)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.” (emphasis ours)
55.
While it is clear that there were express provisions on the procedure to follow to vacate a PRA, the PRA undoubtedly attained more force when it was adopted as an order of the court by Mungai, J in Misc Suit No 124 of 2015 on December 17, 2015. The 1st respondent argues that the order issued by Mungai, J was invalid and unenforceable because it was done without his knowledge.
56.
However, a thorough perusal of the record does not reveal this to be so. This notwithstanding, we note that the PRA was entered into voluntarily by both the appellant and the 1st respondent and neither of them has ever made any steps towards vacating it. A perusal of the record shows that the English Court alluded to the PRA and dismissed it ever so casually, without taking into account the Kenyan legal regime surrounding the PRA. Specifically, it ignored our very progressive Constitution’s article 53 of the rights of Children, the Children Act and case law with regard to PRA’s. Most importantly, it overlooked the fact that there was a legally binding court order on the PRA. These liberties, however, could not be taken by our superior courts.
57.
We are of the view that the English Court made orders on the PRA that disregarded the sovereignty of the Kenyan legal system over its own nationals.
Since there was a binding decision of the Kenyan High Court pertaining to the parties on similar issues on which it was called to adjudicate upon, the English Court ought to have given more prominence to the PRA, the Kenyan Constitution which provides for the rights of children under article 53, the Convention on the Rights of a Child which the United Kingdom is a party to, and the African Charter on the Rights of a Child. It ought to have deferred to the High Court’s order already in place; an order of a competent court of law. We find it quite strange that the English Court overturned a valid and legally competent PRA without hearing the parties to it. This, in our view, negates the expectation of a fair trial and is contrary to our constitutional prescriptions of the non-derogable right to a fair trial.
58.
The Superior Courts ought not to have succumbed to the same temptation. They should have paid mind to section 26 of the Children Act (repealed). It was imperative for them to interrogate the status of the PRA seeing that Mungai, J had adopted it as an order of the court. Once adopted as an order of the court, it could not be violated without consequences. In other words, if one parent violated the agreement, then they were liable to legal proceedings. Not being vacated, we are of the view that the PRA remained a binding order of the High Court until the child attained eighteen years of age.
59.
The superior courts therefore erred by accepting and relying on the English Court’s decision on the PRA. The error of their finding on this issue was compounded by the fact that the Children’s Act had specific provisions on how a PRA is vacated. Indeed, in NSA & another v Cabinet Secretary for, Ministry of Interior and Coordination of National Government & another, HC Petition No 17 of 2014 [2019] eKLR, Njagi, J observed at paragraph 49:
49.
Section 26 provides for parental responsibility agreements which agreements I find can only be vitiated like any other contract. I see nothing wrong in having parental responsibility agreements in so far as they are not in conflict with the constitution and relevant statutes.
60.
We reiterate that it was improper for the superior courts to rely on the English’s Court determination which made no reference to our laws, the CRC, and the African Charter on the Rights and Welfare of the Child. This is the legal regime by which the PRA ought to have been considered. At the very least, the trial court ought to have heard the parties to the PRA before invalidating it. For the avoidance of doubt, the English Court orders of August 7, 2015 does not supersede the PRA.
(iv) Whether parental rights and responsibilities could be extinguished in this case.
61.
It was the appellant’s contention that the rights of a child to parental care are innate and cannot be extinguished. She urged that the character and conduct of a parent are immaterial and do not extinguish parental rights unless the parent has been proven not desirous of acting in the best interest of the child. The 1st respondent on his part urged us to find that the Appellate Court assessed the evidence before it and made a finding that it would not be in the best interest of the minor to be left in the care of a parent who causes him physical and mental harm. The Constitution guides us on the rights of children.
62.
Article 53 of the Constitution provides that:
53.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/21/eng@2023-03-02
Petition (Application) 29 (E033) of 2022,Kithinji v Director of Public Prosecutions & another (Petition (Application) 29 (E033) of 2022) [2023] KESC 18 (KLR) (Civ) (24 February 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",24 February 2023,2023.0,Nairobi,Civil,Kithinji v Director of Public Prosecutions & another,[2023] KESC 18 (KLR)               ,,"Brief facts
The applicant contended that he was aggrieved by the decision of the Court of Appeal which declined to grant stay of proceedings at the Magistrates Court (where the appellant was facing criminal charges); that his appeal pending before the Court of Appeal was arguable and raised triable issues involving a clear misapplication of the law.
The appellant sought an interim order staying all further proceedings in Kibera Criminal Case No. 743 of 2018 (Magistrates Court) pending the hearing and/or determination of the instant application; an order setting aside the ruling of the Court of Appeal; and an order staying all further proceedings in Kibera Criminal Case No. 743 of 2018 pending the hearing and final determination of the applicant’s pending appeal at the Court of Appeal.
Issues
What were the circumstances in which the Supreme Court acting as an appellate court could grant ancillary or interlocutory orders?
What were the circumstances in which an appellate court could grant an order for stay in criminal proceedings?
Whether the Supreme Court had the jurisdiction to issue an order of stay for proceedings before the the Magistrate’s Court.","Upon perusing the notice of motion dated December 2, 2022 and filed on even date, pursuant to articles 159, 163(4)(a) and 259 of the Constitution, sections 3, 3A, 15A, 21(1), 23A(1)(a) and 24(1) of the Supreme Court Act and rules 31 and 32 of the Supreme Court Rules, 2020 seeking: an interim order staying all further proceedings in Kibera Criminal Case No 743 of 2018 pending the hearing and/or determination of this application; an order setting aside the ruling of the Court of Appeal delivered on October 7, 2022; and an order staying all further proceedings in Kibera Criminal Case No 743 of 2018 pending the hearing and final determination of the Applicant’s pending appeal at the Court of Appeal; and
2.
Upon perusing the grounds on the face of the application; the supporting affidavit of the applicant sworn on December 2, 2022; submissions dated December 2, 2022; and supplementary submissions dated December 28, 2022, we note that the applicant contends that he is aggrieved by the decision of the appellate court which declined to grant stay of proceedings at the Magistrates Court; that his appeal pending before the Court of Appeal is arguable and raises triable issues involving a clear misapplication of the law apparent on the face of the ruling of the Court of Appeal as it failed to appreciate section 8(2) of the Magistrate Courts Act which ousts jurisdiction of the criminal trial court to determine redress of violation of the right to a fair trial; disregarding binding precedent from the Supreme Court and Court of Appeal consequently denying him the ability to challenge admissibility of the P3 Medical Report evidence pursuant to article 50(4) of the Constitution; and
3.
Upon considering the applicant’s further argument that unless the orders of stay are granted, the defence proceedings will commence, fatally defeating his rights under articles 25(c), 50(1),50(2) and 50(4) of the Constitution rendering the appeal nugatory as he has been found to have a case to answer on the basis of disputed evidence obtained pursuant to his disputed unlawful arrest; that he satisfies the test of exceptional circumstances for this court to exercise its jurisdiction arising from an interlocutory ruling by the Court of Appeal as per this court’s decisions in Attorney General v Kenya Ports Authority & 7 others Civil Application No 15 of 2020 [2020]eKLR, and Deynes Muriithi & 4 others v Law Society of Kenya & another Civil Application No 12 of 2015 [2016]eKLR;
4.
Noting that the 1st and 2nd respondents did not file any responses to the application despite service and further noting the 1st respondent’s court attendance on 16th January, 2023 wherein its counsel indicated that he had filed responses to the application; and
5.
Furthermore noting that the 1st respondent in opposition to the application only filed submissions dated December 21, 2022 urging that, allowing the application is tantamount to determining the petition which is frivolous, has no probability of success and is neither arguable nor raises questions of constitutional application or interpretation; and that the applicant at the trial court did not demonstrate the manner in which the proceedings were in violation of his rights under articles 25(c) and 50 of the Constitution to warrant the granting of stay of proceedings;
6.
Taking into account the 1st respondent’s submission that this court lacks jurisdiction to grant the orders sought as there is no substantive subject matter of appeal before this court for determination that needs to be safeguarded. The 1st respondent cites this court’s decisions in Peter Munya v Dickson Mwenda Kithinji & 2 others SC Application No 5 of 2014 [2014] eKLR and Board of Governors, Moi High School Kabarak & another v Malcolm Bell [2013] eKLR in support of that submission; and
7.
Bearing in mind this court’s inherent power to grant any ancillary or interlocutory orders as may be necessary for the ends of justice or prevent abuse of the process of the court under section 21(2) of the Supreme Court Act, rule 3(5) of the Supreme Court Rules 2020 and this court’s decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (supra) which set out the criteria for grant of interlocutory relief to wit that the appeal must be arguable and not frivolous; that if stay is not granted the appeal will be rendered nugatory; and if it is in the public interest that the order of stay is granted; and
8.
Cognisant that an order for stay of criminal proceedings is not granted as a matter of course but upon the sparing exercise of judicial discretion and only in exceptional circumstances as enunciated in Dande & 3 others v Director of Public Prosecutions & 2 others Petition 4 of 2022 [2022] KESC 23 (KLR) where we held that:
“
[15]..it is fairly elementary that this court can only grant an order of stay of a decree or order of the Court of Appeal or stay of further proceedings in the Court of Appeal but not of proceedings pending hearing in the Magistrate’s Court, as sought in this application; and that reference to “any other court or tribunal as prescribed by national legislation” in article 163(3 )(b)(ii) is definitely not reference to the Magistrate’s Court.”
9.
We now opine that the notice of motion lacks merit as it not only seeks to set aside a ruling of the Court of Appeal at the interlocutory stage but also seeks to stay proceedings before the Magistrate’s Court contrary to the limited jurisdiction granted to the Supreme Court under article 163(3)(b) and (4) of the Constitution and the decision in Dande & 3 others v Director of Public Prosecutions & 2 others (supra).
10.
Consequently, for reasons aforesaid, we make the following orders:
i.
The notice of motion application dated December 2, 2022 be and is hereby dismissed; and
ii.
Costs of the application shall abide the outcome of the appeal.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/18/eng@2023-02-24
Petition 16 of 2019,"NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR) (Constitutional and Human Rights) (24 February 2023) (Judgment) (with dissent - MK Ibrahim & W Ouko, SCJJ)",Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",24 February 2023,2023.0,Nairobi,Civil,NGOs Co-ordination Board v EG & 4 others; Katiba Institute,[2023] KESC 17 (KLR)               ,,"A. Background
1.
The petition of appeal before court is dated May 6, 2019 and lodged on even date. The appeal challenges the Judgment of the Court of Appeal (Waki, Nambuye, Koome, Makhandia and Musinga, JJA) at Nairobi in Civil Appeal No 145 of 2015 delivered on March 22, 2019, which dismissed the appeal in the High Court decision EG v Non-Governmental Organisations Co-ordination Board & 4 others, petition No 440 of 2013. The Court of Appeal (by a majority of 3:2) affirmed the decision of the High Court that had declared that the Non-Governmental Organizations Coordination Board (NGO co-ordination board) had contravened the provisions of article 36 of the Constitution in failing to accord just and fair treatment to gay and lesbian persons living in Kenya seeking registration of an association of their choice.
2.
This matter can be traced to a letter from the NGO co-ordination board dated March 25, 2015 refusing to reserve any of the 1st respondent’s proposed names to register a non-governmental organization (NGO) seeking to champion the rights of (lesbian, gay, bisexual, transgender, queer or questioning (LGBTIQ) persons in Kenya. The 1st respondent sought to reserve for registration of an NGO in any of the names: Gay and Lesbian Human Rights Council; Gay and Lesbian Human Rights Observancy; Gay and Lesbian Human Rights Organization; Gay and Lesbian Human Rights Commission; Gay and Lesbian Human Rights Council and Gay and Lesbian Human Rights Collective.
3.
However, the appellant’s executive director declined to approve any of the proposed names on the grounds that sections 162, 163 and 165 of the Penal Code criminalizes gay and lesbian liaisons. The 1st respondent’s efforts to request for a review of the decision from the NGO coordination board bore no fruit.
4.
Aggrieved by the appellant’s decision, the 1st respondent filed High Court petition No 440 of 2013 alleging that the appellant’s refusal to register the intended NGO not only contravened the provisions of articles 20(2), 31(3), 27(4), 28 and 36 of the Constitution, but also those of the Non-Governmental Organizations Co-ordination Act (the NGO Coordination Act).
5.
The trial court (Lenaola, J (as he then was), Ngugi, J (as she then was), and Odunga, J (as he then was) delineated two main issues and several other collateral issues for determination. The primary issues for determination were:
i.
whether LGBTIQ have a right to form associations in accordance with the law; and
ii.
if the answer is in the affirmative, whether the decision of the board not to allow the registration of the proposed NGO because of the choice of name is a violation of the rights of the 1st respondent under articles 36 and 27 of the Constitution.
6.
On April 24, 2015, the court rendered its determination. Before tackling the main issues, the court addressed itself on the issue of whether there was failure by the 1st respondent to exhaust any internal remedies before approaching the court. In this regard, the trial court observed that in rejecting the names, the appellant was not dealing with registration of the proposed NGO but with the question of whether the name(s) that the 1st respondent sought to reserve for the proposed NGO were acceptable. Therefore, the court held that the refusal to reserve the proposed names was not “a decision” contemplated under section 19 of the NGO Coordination Act under which an appeal to the Minister lies. The trial court also found that the impugned decision was purely administrative and was made pursuant to the NGO Regulations, and not the NGO Coordination Act. To this end, the court concluded that there was no statutory prescribed internal remedy that was available to the 1st respondent, and that the court could not close its doors on him for failure to exhaust an internal remedy that did not apply to his circumstance.
7.
Further, the trial court held that the state is restricted from determining which convictions and moral judgments one can hold, and that as per the Constitution, the right to freedom of association is not selective, but is guaranteed to, and applies to everyone. The learned judges also, observed that it did not matter if the views of certain groups or related associations are unpopular or unacceptable to certain persons outside those groups or members of other groups. Moreover, the court observed that if only people with views that are popular were allowed to associate with others, then the room within which to have a rich dialogue and disagree with the government and others in society would be thereby unreasonably limited.
8.
The trial court observed that it was apparent that the appellant took issue with both the name, and the objects and purposes, of the 1st respondent’s proposed NGO because it deemed the name to be furthering an illegality. Therefore, the court concluded that whatever mode the Board wished to place in rejecting the name sought to be used by the 1st respondent, its effect was to reject the 1st respondent’s application to register an association to advocate for the rights of LGBTIQ. Ultimately, the court found that the appellant’s action constituted an infringement of the 1st respondent’s right to freedom of association.
9.
On the issue of whether the limitation of the 1st respondent’s right to freedom of association was justifiable in a free and democratic society, the trial court recognized that the right to freedom of association is not absolute and can be limited. However, such limitation must be in accordance with article 24 of the Constitution. Accordingly, the court faulted the appellant’s reliance on sections 162 and 163 of the Penal Code to justify its decision, as those sections do not criminalize homosexuality or the state of being homosexual; the law only refers to certain sexual acts which are ‘‘against the order of nature.’’ Likewise, the learned judges observed that the fact that the state does not prosecute people who confess to being lesbians and homosexuals in this country, is a clear manifestation that such sexual orientation is not criminalized. To that end, the court found that the Penal Code does not criminalize the right to freedom of association of people based on their sexual orientation nor does it contain any provision that limits the freedom of association of persons based on their sexual orientation. The court concluded therefore that the appellant’s reliance on the provisions of the Penal Code to limit the 1st respondent’s freedom of association was untenable.
10.
With regard to the right to non-discrimination, the trial court noted that both the board and the High Court are constitutionally mandated when applying the Constitution to give effect to the non-discrimination provisions in article 27. Further, it observed that an interpretation of non-discrimination which excludes people based on their sexual orientation would conflict with the principles of human dignity, inclusiveness, equality, human rights and non- discrimination.
11.
Finally, the trial court found the petition had merit and declared the words ‘every person’ in article 36 of the Constitution to include all persons living within the Republic of Kenya despite their sexual orientation. The court further declared that the appellant had contravened the provisions of article 36 of the Constitution and, that the 1st respondent was entitled to exercise his constitutionally guaranteed right to freedom of association. Consequently, the High Court issued an order of mandamus directing the board to strictly comply with its constitutional duty under article 27 and 36 of the Constitution, and the relevant provisions of the NGO Co-ordination Act.
12.
Dissatisfied with the judgment of the High Court, the appellant lodged an appeal at the Court of Appeal in Nairobi, Civil Appeal No 145 of 2015, challenging the whole judgement and decree of the High Court. The appellant raised eleven grounds stating that the learned judges erred in law and in fact:
i.
By identifying lesbian, gay, bisexual, transgender and queer as innate attributes of various persons without any or any sufficient evidence in support, and by failing to recognize that these attributes were the consequences of behavioral traits which the society has a right and duty to regulate for the sake of the common good;
ii.
When they held that the refusal to register the 1st respondent’s proposed NGO was not a decision contemplated under section 19 of the NGO Act for which an appeal lies to the minister;
iii.
In failing to recognize the limits of the right to freedom of association and the fact that the right is enjoyed by persons and not based on any attribute they may determine for themselves;
iv.
In finding that the right to freedom of association extended to the proposed NGO of the 1st respondent;
v.
By adopting and applying ratio from South Africa without recognizing the distinct and divergent constitutional background of the said country;
vi.
By disregarding the religious preference in the Constitution and the preambular influence that must be applied in interpreting and applying the various constitutional provisions in issue;
vii.
By failing to uphold the provisions of the Penal Code that outlaw homosexual behavior, as well as any aiding, abetting, counselling, procuring and other related and inchoate crimes;
viii.
By effectively reading into the Constitution’s non-discrimination clause the ground of sexual orientation;
ix.
By misunderstanding and misapplying the limitation clause in article 24 of the Constitution;
x.
By rejecting the legitimate role of the moral purpose or public policy test in determining whether to accept registration or proposed applications for associations of persons; and
xi.
By granting the declarations sought and the order of mandamus in the decree appealed against.
13.
Having considered the issues for determination, the Court of Appeal on March 22, 2019, by a majority of 3-2, dismissed the appeal, affirming the judgment of the High Court. The issues for determination delineated by the court were whether the 1st respondent had an obligation to exhaust the remedies available under the NGO Coordination Act or whether the 1st respondent’s petition before the High Court was premature; whether in rejecting the reservation of the name, the director of the appellant violated article 36 on the 1st respondent’s right to freedom of association and from discrimination and equality under articles 36 and 27 of the Constitution respectively, and whether the right under article 36 is a limited right pursuant to article 24.
14.
On the issue of the exhaustion of internal remedies, the majority (Waki, Koome and Makhandia JJA) agreed with the reasoning of the High Court. In that regard, the learned judges observed that the NGO Coordination Act and Regulations therein had not provided for an internal appeal mechanism for applicants to follow when a name is refused for the reservation to register an NGO. Therefore, the court found that requiring the 1st respondent to exhaust internal remedies would have been an exercise in futility given that there was none. The court further agreed with the trial court that courts are the ultimate bastion and custodians of the Constitution and that appellant’s decision not only transcended a mere administrative act, but also touched on matters of constitutional interpretation.
15.
On the other hand, the minority (Nambuye and Musinga JA) in finding that the petition before the High Court was premature, observed that the genesis of the 1st respondent’s petition was purely an administrative action executed by the director on behalf of the appellant, declining registration of his NGO with no constitutional underpinnings at that point in time. Therefore, the procedures set out in section 19 of the NGO Coordination Act ought to have been invoked and exhausted before seeking the court’s intervention.
16.
With regards to the violation of the right to freedom of association and limitation thereof, the majority (Waki, Koome and Makhandia JJA) found that the director of the appellant was in breach of article 36 of the Constitution. The learned judges noted that there was no contestation from any side that there are people in this country who answer to any of the descriptions in the acronym LBGTIQ; these are ‘persons,’ and are therefore protected under article 36 of the Constitution. The court observed that just like everyone else, they have a right to freedom of association which includes the right to form an association of any kind. They further held that the LBGTIQ, just like other citizens, are subject to the law including sections 162, 163 and 165 of the Penal code, and would be subject to sanctions if they were to contravene such law. The court concluded that by refusing to register the NGO, the 1st respondent was convicted before contravening any law, and that such action was retrogressive. The Court of Appeal, by majority, also found that the only limitation to the right of freedom of association as provided under article 36 of the Constitution is that the activities of the association must be in accordance with the law. If they are not, then the proposed NGO would not be protected by the Constitution and the law would take its cause. They further observed that it was arbitrary to speculate and categorize LGBTIQ, as persons who have the propensity to destroy society by contravening the provisions of the Constitution or the Penal Code, or as a group bent on ruining the institution of marriage or culture.
17.
On the other hand, the minority (Nambuye and Musinga JJA) held that the director of the appellant’s action of rejecting the proposed names did not discriminate against the LGBTIQ. They observed that the right to freedom of association as guaranteed under article 36 of the Constitution was not absolute, and subject to the limitation in terms of article 24(1) of the Constitution. Further, the learned judges found that article 27 (4) prohibits discrimination on the basis of a person’s sex (gender) and not sexual orientation. They observed that the law, as it currently stands, does not permit homosexual and lesbian sexual practices, and the freedom of association of gays and lesbians in Kenya may lawfully be limited by rejecting registration of a proposed NGO, if the country’s laws do not permit their sexual practices.
18.
Dissatisfied with the Court of Appeal’s decision, the appellant filed an appeal before us presumably under article 163(4) (a) of the Constitution. The appellant seeks the following orders from the court:
a.
The appeal be allowed with costs.
b.
The judgment and decree of the Court of Appeal given on March 22, 2019 disallowing the appeal be reversed and set aside.
c.
An order do issue affirming the right and duty of the appellant to refuse registration to any association intended to be established contrary to public the interest, or public policy, or to advance an agenda or directly or indirectly promoting conduct that is impugned under the laws of this country, including the advancement of any homosexual agenda.
19.
The appellant contends that the Court of Appeal through its majority decision erred in law in dismissing the appellant’s appeal against the decision of the High Court on the following grounds:
a.
That the learned judges erred by failing to recognize that the actions of the executive director under the NGO Regulations were made under the delegated authority of the board whose decision was subject to appeal to the minister.
b.
That the learned judges erred in law in failing to recognize the limits of the right to freedom of association as provided for under article 36 of the Constitution of and the fact that the freedom is enjoyed by persons and not based on any attribute, they may determine for themselves.
c.
That the learned judges erred in law in conflating the freedom of association under article 36 of the Constitution with-
a.
An absolute right to associate any desired label or name.
b.
An unfettered right to pursue any particular activity, objective or policy.
d.
That the learned judges erred in law in finding that the freedom of association provided for under article 36 of the Constitution extended to the 1st respondent’s proposed NGO.
e.
That the learned judges erred in law by disregarding the religious preference in the Constitution and its preamble, which influence should be applied in interpreting and applying the various constitutional provisions.
f.
That the learned judges erred in law by effectively reading into the Constitution non-discrimination clause, article 27 the ground of sexual orientation.
g.
That the learned judges erred in law by finding that morals and public policy have no legitimate role in the appellants determination on the acceptance of the registration of the proposed NGOs, contrary to articles 24(5)(a), 36(3),19(2) ,11(1) & (2) of the Constitution and sections 162, 163 and 165 of the Penal Code.
h.
That the learned judges erred in law by disallowing the appeal before it.","D. Analysis and Determination
33.
With regard to this court’s jurisdiction to entertain the appeal before us, we find that it is filed as of right pursuant to article 163(4)(a) of the Constitution. We have perused the judgments of the superior courts and noted that both courts interrogated the decisions of the executive director of the NGO Coordination Board in view of article 36 and 27 of the Constitution. We have also considered article 163(4)(a) of the Constitution, section 15 of the Supreme Court Act, and the guiding principles set by this court in the case of Lawrence Nduttu & 6000 other v Kenya Breweries Ltd & another, SC Pet No 3 of 2012, and it is our finding that this matter is properly before us.
34.
Before determining the issues listed above, we find it necessary to emphasize that the matter before us is not about the legalization or decriminalization of LBGTIQ, or the morality of same-sex marriage but revolves around the question of whether refusal to register an organization of persons who fall within the LGBTIQ contravened the fundamental rights and freedoms of association guaranteed in the Constitution and whether the rights to freedom of association and freedom from discrimination of those persons seeking to be registered were infringed upon.
35.
Having so clarified, we now proceed to deal with the issues for determination as follows;
(i) Whether the 1st respondent was required to exhaust the internal dispute resolution mechanism under the NGO Coordination Act?
36.
The appellant supported by the 2nd and 5th respondents argued that there exists an internal dispute resolution mechanism under the NGO Coordination Act and theNGO Organizations Regulations, 1992. Therefore, they urged that the 1st respondent ought to have exhausted the internal dispute resolution mechanism before filing a petition in court. Citing section 19 of the NGO Act, it was submitted that the rejection of the name by the NGO Coordination Board should have resulted in an appeal to the minister under section 19 (3) of the Act. In that context, they maintained that the petition before the High Court was premature. They urged the court to affirm the dissenting decision of Musinga, JA, who observed that name reservation and application for registration of an NGO cannot be separated.
37.
On his part, the 1st respondent supported by the amicus curiae argued that the appellant, having refused to reserve the names brought before it by the 1st respondent, directed that the matter be heard in a court of law. The 1st respondent’s counsel also submitted that the matter was at the early stages of reservation of names and not the registration of the NGO, and that reservation falls under regulation 8 of the NGO Co-ordination Regulations, 1992 and not section 19 of the NGO Act as proposed. Therefore, they urged that there was no remedy available to the 1st respondent under regulation 8.
38.
According to article 159 (1) of the Constitution, judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution. In that regard, the Constitution encourages use of alternative means of dispute resolution mechanism.
39.
According to Gelpe, Marcia R, ""Exhaustion of Administrative Remedies: The Lesson from Environmental Cases"" (1985). Faculty Scholarship. Paper 81, exhaustion of administrative remedies aids in protecting administrative autonomy, preserving the separation of powers, gaining judicial economy, avoiding administrative inefficiency, and permitting courts to benefit from an administrative body’s determination of facts and exercise of discretion.
40.
The doctrine of exhaustion of administrative remedies was settled by this court in the case of Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) SC petition No 3 of 2016; [2019] eKLR. This court stated as follows at paragraph 118:
“
……. Even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi- judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute"".
41.
In the persuasive case of R v National Environmental Management Authority, CA No 84 of 2010; [2011] eKLR the Court of Appeal observed as follows:
“
The principle running through these cases is where there was an alternative remedy and especially where parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it…"". [Emphasis added]
42.
We are also persuaded by the High Court’s reasoning in Anthony Miano & others v Attorney General & others, HC petition No E343 of 2020; [2021] eKLR where the court made reference to the doctrine of exhaustion (by citing a 5-judge bench in Mombasa High Court Constitutional Petition No 159 of 2018 consolidated with Constitutional Petition No 201 of 2019 (2020) eKLR which had elaborately dealt with the doctrine of exhaustion.) The court stated at paragraph 35:
“
…………What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, courts must undertake an extensive analysis of the facts, the regulatory scheme involved, the nature of the interests involved – including the level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies…. [Emphasis added.
43.
From the foregoing decisions, this court is invited to interrogate whether an internal dispute resolution mechanism was available to the 1st respondent, and the suitability of the internal appellate mechanism to determine the issue. In this context, while the appellant urged that there existed an internal dispute resolution mechanism stipulated under section 19 of the NGO Coordination Act, the 1st respondent submitted to the contrary. He also submitted that the executive director advised that the matters raised were constitutional in nature therefore, beyond his ambit.
44.
Section 19 of the NGO Coordination Act provides as follows:
“
19.
1.
Any organization which is aggrieved by the decision of the board made under this part may, within sixty days from the date of the decision, appeal to the minister.
2.
On request from the minister, the council shall provide written comments on any matter over which an appeal has been submitted to the minister under this section.
3.
The minister shall issue a decision on the appeal within thirty days from the date of such an appeal.
3A.
Any organization aggrieved by the decision of the minister may, within, twenty-eight days of receiving the written decision of the minister, appeal to the High Court against that decision and in the case of such appeal—
a.
The High Court may give such direction and orders as it deems fit; and
b.
The decision of the High Court shall be final.""
45.
Concerning reservation of names, part II of the NGO Coordination Regulations, 1992 regulation 8 provides as follows:
“
1.
An applicant for the registration of any proposed organization shall prior to such application seek from the director approval of the name in which the organization is to be registered.
2.
The application for approval under paragraph (1) shall be in form 2 set out in the schedule and accompanied by the fee specified in regulation 33.
3.
The director shall, on receipt of an application and payment of the fee specified in regulation 33, cause a search to be made in the index of the registered organizations kept at the documentation centre and shall notify the applicant either that—
a.
such name is approved as desirable; or
b.
such name is not approved on the grounds that—
i.
it is identical to or substantially similar to or is so formulated as to bring confusion with the name of a registered body or organization existing under any law; or
ii.
such name is in the opinion of the director repugnant to or inconsistent with any law or is otherwise undesirable.
4.
A name which has been approved under paragraph (3)(a) shall be entered in the register of reserved names on behalf of the applicant for a period of thirty days or such longer period, not exceeding sixty days, as the director may allow, and such period shall commence from the date of notification of such approval to the applicant.”
46.
In the instant case, the administrative action concerned was the “refusal to approve the 1st respondent’s name.” So then, does the relevant statute, that is the NGO Coordination Act, provide for a dispute resolution mechanism for the administrative action concerned? The answer is in the negative. Unlike the Companies Act, the NGO Coordination Act does not anticipate that the reservation of names is an administrative action which will attract the dispute resolution mechanism provided for under section 19. In other words, there are no substantive provisions on approval of names under the NGO Coordination Act. In addition, from the provisions of regulation 8, it is obvious to us that there are no administrative mechanisms to which the 1st respondent ought to have exhausted, following the director’s decision under the said regulation.
47.
We therefore agree with the position taken by the two superior courts that neither the NGO Coordination Act nor the NGO Regulations provide for any internal dispute resolution mechanism for a party aggrieved by the decision made by the director when exercising its mandate under regulation 8. We also find it necessary to emphasize that an Act of parliament must clearly provide for an internal dispute resolution mechanism before an aggrieved party can be bound by such a mechanism.
48.
The above finding, notwithstanding, we note that the petition before the trial court concerned interpretation and application of the Constitution, a jurisdiction bestowed upon that court. The “minister” therefore, did not have the jurisdiction to entertain issues such as the constitutionality of the decision taken by the director and the NGO Coordination Board. Therefore, it is our finding that the suit before the High Court was proper. In conclusion, we affirm the decision of the Court of Appeal that there was no internal dispute resolution mechanism under NGO Coordination Act and the NGO Coordination Regulations, 1992 to challenge the impugned decision.
(ii) Whether the decision of the executive directive of the NGO Coordination Board violated article 36 of the Constitution.
49.
The core issue for determination between the parties herein is whether the decision of the executive director of the NGO Coordination Board violated article 36 of the Constitution. In this regard, the appellant argued that in refusing to reserve the names for the proposed NGO, it had formed the opinion that the names and the objects offended public policy as their registration would stand in conflict with sections 162, 163 and 165 of the Penal Code which provisions outlaw homosexual liaisons. Furthermore, the appellant faulted the two superior courts for failing to appreciate the proper context under which the appellant’s reason for rejecting the names proposed by the 1st respondent fell. It was argued that the superior courts disregarded majority interests, the moral principle that is enshrined in the Constitution.
50.
In opposition, the 1st respondent argued that article 36 of the Constitution expressly provides for the registration of an association of any kind, and that the only group limitations on the freedom of association envisioned by the Constitution are restricted to persons serving in the Kenya Defence Forces or the National Police Service in accordance with article 24 (5) (b) of the Constitution. It was also submitted that if the drafters of the Constitution intended to restrict the freedom of association of LGBTIQ persons or any other group of persons, they would have expressly included that group in article 24(5) of the Constitution.
51.
Article 36 of the Constitution states that:
“
1.
Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
2.
A person shall not be compelled to join an association of any kind.
3.
Any legislation that requires registration of an association of any kind shall provide that—
a.
registration may not be withheld or withdrawn unreasonably.
b.
there shall be a right to have a fair hearing before a registration is cancelled”
52.
This court notes that the right to freedom of association is also recognized in international and regional human rights instruments which Kenya has ratified. The right to freedom of association is provided for under article 22 (1) of the International Covenant on Civil and Political Rights (ICCPR). It states:
“
Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests""
53.
Similarly, article 1(1) of the African Charter on Human and Peoples Rights provides inter alia:
“
Every individual shall have the right to free association provides he abides by the law""
54.
Furthermore, article 260 of the Constitution defines a “person” to include a company, association, or other body of persons whether incorporated or unincorporated. The question we have asked ourselves is whether in the instant case, the person(s) referred to in the above provisions also include LGBTQ? Our literal reading of article 36 of the Constitution is that the LGBTQ group is not excluded from the definition under article 36. Sub-article (3) requires that any legislation that requires registration of an association of any kind shall provide that registration may not be withheld or withdrawn unreasonably. The right to form an association is an inherent part of the right to freedom of association guaranteed to every person regardless of race, sex, nationality, ethnicity, language, religion, or any other status.
55.
The right to freedom of association cannot be limited unless as provided for under the Constitution. In that regard, article 24 (1) provides as follows:
“
A right or fundamental freedom in the bill of rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including--
a.
the nature of the right or fundamental freedom;
b.
the importance of the purpose of the limitation;
c.
the nature and extent of the limitation;
d.
the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
e.
the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose"".
56.
The parameters of legislative limitation with regard to the right to associate has engaged the minds of judges in other jurisdictions, in both international and domestic courts. In the case of Sidiropoulos and Others v Greece (57/1997/841/1047), the European Court of Human Rights held that:
“
The court points out that the right to form an association is an inherent part of the right set forth in article 11, even if that article only makes express reference to the right to form trade unions. That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. Certainly, states have a right to satisfy themselves that an association’s aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the convention and subject to review by the convention institutions"".
57.
Furthermore, the Supreme Court of Canada in the case In R v Oakes [1986] 1 SCR 103 developed principles for consideration when determining whether a limitation of a right is justifiable, namely; a) there has to be a pressing and substantial objective for the law or government’s action; b) the means chosen to achieve the objective must be proportional to the burden on the rights of the claimant; c) the objective must be rationally connected to the limit on the charter right; d) the limitation must minimally impair the charter right; and d) there should be an overall balance or proportionality between the benefits of the limit and its deleterious effects.
58.
According to the Siracusa principles on the limitation and derogation provision in the International Covenant on Civil and Political Rights, clause 3 and 4 in the general interpretative principles relating to the justification of limitations section, provides that “all limitations shall be interpreted strictly and in favour of the right at issue and in the light and context concerned.” The burden of justifying a limitation upon a right guaranteed under ICCPR lies with the state.
59.
In S v Makwanyane and another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1, Chaskalson, observed in his lead opinion at paras 103 & 104:
“
The criteria prescribed by section 33(1) for any limitation of the rights contained in section 11(2) are that the limitation must be justifiable in an open and democratic society based on the freedom of equality, it must be both reasonable and necessary and it must not negate the essential content of the right… The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. The fact that different rights have different implications for democracy, and in the case of our Constitution, for 'an open and democratic society based on freedom and equality', means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case-by-case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests. In the balancing process, the relevant considerations will include the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question.""
60.
In the present case, the appellant submitted that it declined to approve any of the names as proposed by the 1st respondent on the ground that sections 162, 163 and 165 of the Penal Code criminalize gay and lesbian liaisons as the same goes against the order of nature. So, is the right to freedom of association absolute under article 25? Can it be limited? Did the impugned legislation, the Penal Code, provide for the limitation of the right to freedom of association of LGBTQ? Was the limitation of the 1st respondent’s right necessary in a democratic society? Was the limitation proportionate to the aim sought? Moreover, there was no evidence placed before the 1st appellant to demonstrate that persons who profess to be LGBTQ are criminals or that it is only they who are capable of committing the offence of “unnatural acts”. This was a mere assumption which was not born out of evidence when indeed it is confirmed by empirical data that even heterosexuals commit such offences more often than not most callously.
61.
This court takes cognizance that not all rights are absolute, and that some rights are subject to limitation. In that context, article 36 (3) of the Constitution contemplates that the right to freedom of association is subject to limitation. However, any limitation on any fundamental rights and freedom is subject to article 24 of the Constitution.
62.
Sections 162, 163 and 165 of the Penal Code upon which the director’s decision was premised on provides as follows:
“
(162)
Any person who—
a.
has carnal knowledge of any person against the order of nature; or
b.
has carnal knowledge of an animal; or
c.
permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years:
Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if—
i.
the offence was committed without the consent of the person who was carnally known; or
ii.
the offence was committed with that person’s consent, but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act
(163)
Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.
(165)
Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.”",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/17/eng@2023-02-24
Application 22 of 2016,Attorney General v Halal Meat Products Limited (Application 22 of 2016) [2023] KESC 9 (KLR) (17 February 2023) (Ruling),Ruling,Supreme Court,Supreme Court,I Lenaola,17 February 2023,2023.0,Nairobi,Civil,Attorney General v Halal Meat Products Limited,[2023] KESC 9 (KLR),,"Brief facts
The applicant filed the instant application seeking review of the decision of the Deputy Registrar delivered on September 7, 2016 declining to admit the applicant’s record of appeal and that should such review be granted, the court should permit the applicant to file its record of appeal within a specified time. The applicant claimed that the Deputy Registrar lacked the power to reject a record of appeal, as his powers were only limited to rejecting pleadings and that the Deputy Registrar erred in declining to allow the record of appeal by claiming that the applicant was not entitled to file its appeal as of right but should have instead sought certification before the Court of Appeal.
The respondent averred that the intended appeal did not involve a matter of constitutional interpretation or application and that the applicant’s application was unmeritorious as it sought to undermine the principle of finality in legal proceedings. The respondent further averred that the Deputy Registrar was vested with power under rule 4A(2) of the Supreme Court (Amendment) Rules 2016 to reject pleadings and therefore acted judicially.","5.
In the above context, I now opine as follows:
i.
Rule 4A(1)(b) of the Supreme Court (Amendment) Rules, 2016 (repealed), which is also provided for under rule 6(1)(b) of the Supreme Court Rules, 2020 provides that:
“
The role of the Registrar shall be to−
a.
…
b.
decline to admit pleadings that are not in accordance with the Constitution, the Act, the relevant rule or the court’s practice directions for filings”
ii.
Rule 4A(2) of the Supreme Court (Amendment) Rules, 2016 (repealed) which is also found under rule 6(2) of the Supreme Court Rules 2020 then reads:
“
Any party aggrieved by a decision of the Registrar made under this rule may apply to a single judge of the court for a review of the decision.”
iii.
I note, in that regard, that the Deputy Registrar had the opportunity to review and consider the record of appeal that the applicant intended to be admitted and proceeded to issue reasons that were explanatory as to why the intended appeal could not be admitted. Furthermore, the Deputy Registrar then proceeded to restate the applicable law in declining to admit the applicant’s record of appeal.
iv.
It is my view that, by restating the relevant rules and by giving reasons as to why the applicant’s pleadings were declined, the Deputy Registrar was cogent and I reiterate that this was explanatory enough and he did not run afoul of any law. He also correctly exercised his jurisdiction and I see no reason to fault his decision. I therefore decline to grant the orders sought.
6.
Accordingly, I make the following orders:
a.
The notice of motion dated November 16, 2016 is hereby dismissed.
b.
There shall be no order as to costs.
7.
It is so ordered.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/9/eng@2023-02-17
Petition 15 of 2020,Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others (Petition 15 of 2020) [2023] KESC 14 (KLR) (17 February 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",17 February 2023,2023.0,Nairobi,Civil,Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others,[2023] KESC 14 (KLR),,"A. Introduction
1.
The petition of appeal herein is dated August 20, 2020 and was lodged on August 21, 2020. The appellant, Bia Tosha Distributors Limited, seeks to set aside the judgment of the Court of Appeal in Civil Appeal No 163 of 2016 delivered on July 10, 2020 which allowed the appeal against the High Court’s (Onguto, J) ruling in Constitutional Petition No 249 of 2016 delivered on June 29, 2016.
B. Background
2.
In the year 1997, the appellant was appointed as a distributor for the 1st respondent’s products within Gachie, Mwimuto, Kanunga, Kiambaa, Banana, Karura, Gathanga, Ndenderu, Ndumberi, Tinganga, Riabai, Kanguya, Wangige, and Ridgeways. Subsequently, in the year 2000, vide a letter dated July 20, 2000 the appellant was offered new distribution areas namely: Baba Dogo, Kariobangi North, Dandora I, and Dandora II on the condition that the appellant would pay a non-refundable goodwill of Kshs 6,630,000/- to the 1st respondent.
3.
In the year 2005, the appellant was offered a larger distribution area comprising of Namanga, Bissil, Kajiado, Kitengela, Athi River, Industrial Area, South B, Nairobi West, Kenyatta, Langata, Rongai, Kiserian, Magadi, Upperhill, Ngong Road, Hurlingham, Kawangware, Satelitte, Dagoretti, UDV A, UDV B, and UDV C. For these territories the appellant was asked to pay goodwill amounting to Kshs 31,668,000/- out of which it paid Kshs 27,300,000/-.
4.
Sometime thereafter, the 1st respondent re-possessed Baba Dogo, Dandora I and II, and Kariobangi North, from the appellant to enable the appellant to serve the new areas whereupon the appellant requested to be refunded the goodwill for the territories that were repossessed. This, the 1st respondent declined, indicating that the amounts were non-refundable, and further claimed that it was within their discretion to appoint other distributors as the agreement was non-exclusive. Furthermore, based on world practices, the 1st, 2nd, 4th and 5th respondents’ implementation of goodwill payments were terminated as being irrational, illegal and improper scheme to lock out competing international beverage manufacturers. The 4th respondent owns majority shareholding in the 3rd respondent who wholly owns the 1st and 2nd respondent.
5.
The appellant paid goodwill for the routes it operated along and this amount was appropriated directly to the 1st respondent. The refusal by the 1st respondent to refund the goodwill paid by the appellant, coupled with the former’s repossession of most distribution areas initially allocated to the appellant and which were then reallocated to other distributors, triggered this dispute.","H. Orders
134.
Consequently, upon our conclusion, we order that:
i.
The appeal dated August 20, 2020 be and is hereby allowed;
ii.
The judgment and orders of the Court of Appeal in Civil Appeal No 163 of 2016 delivered on the July 10, 2020 be and are hereby set aside in entirety;
iii.
The High Court orders of June 29, 2016 be and are hereby reinstated and the court do consider the consequences of any disobedience of those orders;
iv
The matter be and is hereby remitted to the High Court for disposal of the amended petition dated June 20, 2016 pending before the High Court on priority basis; considering the age of this matter;
v
Costs in the Court of Appeal and in this court are awarded to the appellant as against the 1st and 2nd respondents.
It is so ordered.",Allowed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/14/eng@2023-02-17
Petition 17 (E024) of 2021,Kenya Electricity Transmission Co Limited (KETRACO) v Instalanciones Inabensa SA (Petition 17 (E024) of 2021) [2023] KESC 10 (KLR) (17 February 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",17 February 2023,2023.0,Nairobi,Civil,Kenya Electricity Transmission Co Limited (KETRACO) v Instalanciones Inabensa SA,[2023] KESC 10 (KLR),,"Brief facts
In the instant appeal, the Supreme Court had already issued a ruling and declared itself of not having jurisdiction to deal with the instant matter. The only thing to be determined was matter of costs. 
Following the ruling that the court lacked jurisdiction, and six days before the hearing to determine who was to bear the costs, the parties sought leave to enter a consent to withdraw the suit. Subsequently the appellant contended that since the respondent had already been awarded costs in the ruling absolving the court of jurisdiction, that they bore no further burden of costs. The respondent contended that the appellant's claim that it should not be granted costs since it was awarded expenses in the ruling on jurisdiction was unfounded because the two proceedings were separate and the respondent was entitled to costs for both. The respondent further contended that an application's expenses could not be the same as or equal to the costs of a challenge to an appeal.","12.
Consequently, we make the following orders:
a.
The notice of motion dated January 24, 2022 and filed on January 25, 2023 seeking to withdraw the petition of appeal dated November 26, 2021 be and is hereby allowed in the following terms:
i.
The consent dated January 27, 2023 and filed in court on January 30, 2023 granting the appellant leave to withdraw the petition of appeal dated November 26, 2021, be and is hereby adopted as an order of the court.
ii.
The appellant shall bear the costs of the appeal.
Orders accordingly.",Allowed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/10/eng@2023-02-17
Petition (Application) 27 (E031) of 2022,Mwambora & 9 others v Spire Properties (K) Limited & 50 others (Petition (Application) 27 (E031) of 2022) [2023] KESC 12 (KLR) (Civ) (17 February 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",17 February 2023,2023.0,Nairobi,Civil,Mwambora & 9 others v Spire Properties (K) Limited & 50 others,[2023] KESC 12 (KLR),,"Brief facts
The instant application sought among others the extension of time for lodging an appeal against the judgment and orders of the Court of Appeal delivered on July 29, 2022 in Mombasa Court of Appeal Civil Appeal No 135 of 2018 as consolidated with Civil Appeal No 139 of 2018 and that the petition of appeal and record of appeal, both dated September 13, 2022, filed as Supreme Court Petition No E031 of 2022, subsequent to the notice of appeal dated August 15, 2022 be deemed to have been filed in time. 
The applicant averred that the delay in filing the notice of appeal was occasioned by the applicants’ counsel’s involvement in offering legal services with regard to election preparedness, election management, and election results transmission; that the counsel’s mistaken computation of time arose from the erroneous view that July had thirty (30) days as opposed to thirty-one (31) days; and that the apparent mistake only occurred to counsel once it was pointed out to him in the replying affidavit of the 1st respondent. The applicant submitted that the delay in filing the notice of appeal was due to the applicants’ counsel’s mistaken belief that the deadline for filing the notice of appeal was August 15, 2022 instead of August 12, 2022. ","Accordingly, we order as follows:
a.
The notice of motion dated October 17, 2022 is hereby dismissed.
b.
The petition of appeal dated September 13, 2022 is hereby struck out.
c.
The applicants shall bear the costs of this application.
9.
It is so ordered.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/12/eng@2023-02-17
Petition 2 (E002) of 2021,Okoiti & 2 others v Attorney General & 14 others (Petition 2 (E002) of 2021) [2023] KESC 13 (KLR) (17 February 2023) (Ruling),Ruling,Supreme Court,Supreme Court,PM Mwilu,17 February 2023,2023.0,Nairobi,Civil,Okoiti & 2 others v Attorney General & 14 others ,[2023] KESC 13 (KLR),,"Brief facts
The applicant filed the instant application seeking the review and vacation of the Registrar’s decision of January 22, 2021 declining to lodge and admit for filing the petition and records of appeal for failure to submit the notice of appeal and the judgment of the Court of Appeal. The applicant contended that it filed and served the notice of appeal within four days of the Court of Appeal decision. The appellant further submitted that they filed the appeal on January 20, 2021, within the 30 days of filing the notice of appeal by which time it had not received the certified judgment and signed notice of appeal from the Court of Appeal which fully operated virtually.
The petition of appeal and record of appeal were lodged in court on January 27, 2022 by the Deputy Registrar without any formal review of the Registrar’s ruling paving way for compliance before the Registrar. It was only upon the matter being escalated to the court to consider the issue of representation that the issue of the Registrar’s ruling was brought to the attention of parties prompting the instant application seeking to review the Registrar’s decision.
The applicant stated that having omitted some documents, it filed a supplementary record of appeal containing the judgment and notice of appeal and that the fifteen (15) day window envisaged under the rule 40(4) of the Supreme Court Rules, 2020 was curtailed by the Registrar’s decision. The applicant argued that the Registrar’s decision was unfair and against the rules of natural justice, the applicant not having been allowed any opportunity to explain the circumstances of the filing.","10.
Having carefully considered the record, arguments and submissions by all the parties, I now opine as follows:
a)
Rule 6(1)(b) of the Supreme Court Rules allows the Registrar to decline pleadings that are not in accordance with the Constitution, the Act, the rules, or the court’s practice directions for filings. The Registrar’s impugned ruling made under this provision was on account of failure to include the judgment and the absence of a notice of appeal. However, the Deputy Registrar, in admitting the lodging of the petition and record of appeal referred to in the impugned ruling, impliedly reviewed the said ruling, albeit un- procedurally in the absence of a formal review application.
b)
It is acknowledged that the applicant, in line with rule 36(1) of this Court’s Rules, filed at the Court of Appeal a notice of appeal on December 22, 2022 and served it on the parties. This was four days after delivery of the Court of Appeal judgment within the 14-day period. Notwithstanding the assertion that the Court of Appeal operates 100% virtually, resulting in notices of appeal being filed electronically, signed and returned to the parties, the signed Notice of Appeal by the Registrar of the Court of Appeal was never transmitted to the Registrar of this court within the said timelines as stipulated under rule 36(3) or at all.
c)
The applicant did not serve upon the respondents the transmitted copies of the notice of appeal in compliance with rule 37(1) of the Court’s Rules but served an un-transmitted copy thereof.
d)
The thirty days’ timeline for institution of appeal run from the date of filing of the notice of appeal and for purposes of this court, transmission of the same to the court. As held in University of Eldoret & another v Hosea Sitienei & 3 others SC Application No 8 of 2020 [2020]eKLR:
“
(36)
Rule 36 of the Supreme Court Rules 2020 provides for the filing of a notice of appeal within fourteen days of a decision of the Court of Appeal from which an intended appeal is founded. The filing of a notice of appeal is not premised on any occurrence or condition to be fulfilled by the appellant. The filing of a notice of appeal signifies the intention to appeal.” (Emphasis mine)
I reiterate that the notice of appeal is a jurisdictional pre-requisite without which the court cannot infer the intention to appeal for purposes of this Court’s Rules.
e)
While the Court of Appeal judgment could be contained in the record of appeal under rule 40(c) or a supplementary record under rule 40(4), the same cannot be said of the notice of appeal which has to be transmitted to the court before service upon the parties.
f)
The notice of appeal in this matter, having been availed to the court at the first instance by being mentioned as a schedule in the petition of appeal and as part of the supplementary record filed before this court on January 27, 2021, the same was already way out of the fourteen (14) day period of delivery of the judgment, despite having been filed on time.
g)
Though the applicant has exercised it’s right to seek a review of the decision by the Registrar as provided under rule 6(2) of the Supreme Court Rules, the request has neither been accompanied by an application for extension of time nor an explanation for the lack of compliance offered as the mundane step in the first place, the issue being brought to the attention of the parties by the court. I am not satisfied as to the merit of the application and decline to exercise discretion to review the Registrar’s decision.
h)
On the issue of costs, I stand guided by the decision of this court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others; SC Petition No. 4 of 2012 [2014] eKLR where this court observed that the basic rule on attribution of costs is: costs follow the event. On this account, the applicant shall bear the costs of the respondents who opposed, to wit, the 1st 2nd and 3rd respondents on the one hand and the 13th, 14th and 15th respondents on the other hand.
11.
Consequently, I make the following orders:
(i)
The notice of motion dated July 23, 2022 be and is hereby dismissed.
(ii)
The applicant shall bear the costs of this application for the 1st 2nd and 3rd respondents on one hand and the 13th 14th and 15th respondents on the other hand.
Orders accordingly.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/13/eng@2023-02-17
Petition 19 (E027) of 2021,Senate & 3 others v Speaker of the National Assembly & 10 others (Petition 19 (E027) of 2021) [2023] KESC 7 (KLR) (Civ) (17 February 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",17 February 2023,2023.0,Nairobi,Civil,Senate & 3 others v Speaker of the National Assembly & 10 others,[2023] KESC 7 (KLR),,"Brief facts
The 1st, 2nd and 4th respondents sought leave of the court to enlarge time for filing of a notice of cross-appeal; they also sought prayers that their notice of cross-appeal annexed to the application be deemed as duly filed, served and properly on record; and that upon grant of the foregoing prayers, the 1st and 2nd respondents be permitted to rely in support of their cross-appeal, on the record of appeal lodged by the appellants. 
The appellants and the 3rd respondent were opposed to the application on the grounds that the right to appeal was not absolute; that under the Supreme Court Rules, 2020 a party was permitted to file a cross appeal either 30 days after the main appeal has been served on that party or 30 days before the hearing of the appeal. 
Issues
Whether the public interest nature of a dispute could warrant the Supreme Court to exercise its inherent jurisdiction to allow a party who filed documents out of time and without leave and to seek the court’s stamp of approval to deem the documents to be regularly on record.","We Now therefore Opine as Follows:
7.
Restating the principles governing applications for extension of time as enunciated by the court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others; SC Application No 16 of 2014; [2014] eKLR; that time is extended at the unfettered discretion of the court based on the unique circumstances of each case; that the burden is upon the applicant to explain to the satisfaction of the court the reasons for delay; and whether there will be any prejudice suffered by the opposing parties if the extension is granted, among other considerations; and
8.
Upon applyingthese strictures to the rival submissions; on the one hand that the delay was inordinate and without any justifiable reasons, and on the other hand that the changes in the administration of the National Assembly was reason enough in explaining the delay; and
9.
Upon examiningrule 47(2)(b) of the Supreme Court Rules, 2020, on the lodgement of a memorandum of appeal and record of appeal, and being satisfied, in the given circumstances, that the delay involved does not qualify to be described as inordinate and the reasons given are plausible; and
10.
Further, the public interest nature of this dispute militates against shutting out or throwing out of the seat of justice any party in the resolution of this dispute, and being satisfied that no party will be prejudiced if the time is extended;
11.
In the circumstances, we are minded to consider granting the application, while reminding the 1st and 2nd respondent that, by rule 47(2)(b) aforesaid, they are required to lodge eight copies of the memorandum of appeal and record of appeal and not to rely on other parties’ pleadings as they have prayed.
We also reiterate the caution we issued in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others (supra), that it is highly irregular and presumptive in this court to file documents out of time without leave and thereafter seek court’s stamp of approval to deem them to be regularly on record.
It is in the same spirit that we reject the submissions filed out of time and without prior leave by 1st and 2nd respondent on January 20, 2023 as well as those of the 4th respondent filed on January 26, 2023. They are, in our words in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others (supra), “a nullity and of no legal consequence”. We follow the course we adopted in that case, and expunge those sets of submissions from the record.
12.
Reiterating the public interest nature of this dispute, we exercise our inherent powers under section 3A of the Supreme Court Act and rule 3(5) of the Supreme Court Rules to excuse the foregoing infractions by the 1st 2nd and 4th respondents. They are instead granted leave to exchange and file afresh their written submissions.
13.
Since the award of costs is discretionary as this court explained in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, no party, in the instant case, is at fault hence we make no orders as to costs.
14.
In the circumstances, we allow this application and make the following orders;
a.
The application dated January 30, 2023 and filed on the January 31, 2023 is hereby allowed.
b.
The 1st and 2nd respondents will file and serve the notice, memorandum and record of appeal in compliance with rule 47 of the Supreme Court Rules within thirty (30) days from the date hereof.
C.
The 1st, 2nd and 4th respondents will file and serve afresh their written submissions within fourteen (14) days from the date of this ruling.
d.
There shall be no orders as to costs.
It is so ordered.",Allowed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/7/eng@2023-02-17
Application 10 (E016) of 2022,Shollei v Judicial Service Commission & another (Application 10 (E016) of 2022) [2023] KESC 8 (KLR) (Civ) (17 February 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",17 February 2023,2023.0,Nairobi,Civil,Shollei v Judicial Service Commission & another,[2023] KESC 8 (KLR),,"Brief facts
The applicant sought for the Supreme Court to enlarge time for compliance with Supreme Court orders which the court had issued after having conclusively determined the instant matter. ","Consequently, we find that this court does not have jurisdiction to extend the timeline granted to the 1st respondent to publish and publicize procedures for all its disciplinary and investigative processes through the Kenya Gazette.
On clarity of this court’s orders relating to instruments under section 47 of the Judicial Service Act;
13.
We find that the draft manual attached to the 1st respondent/applicant’s notice of motion application is the requisite legal instrument anticipated under section 47 of the Judicial Service Act which empowers the 1st respondent to make regulations for the better carrying out of its purpose, we can say no more than to state that the 1st respondent would be well advised to stand guided by the structure and format of the already published regulations provided for and gazetted in the third schedule of the Judicial Service Act and comply accordingly in form and content.
[14]
Consequently, we dismiss the 1st respondent’s application with no order as to costs.
[15]
It is so ordered.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/8/eng@2023-02-17
Criminal Petition E032 of 2022,Wafula v Director of Public Prosecution & 149 others (Criminal Petition E032 of 2022) [2023] KESC 16 (KLR) (Crim) (17 February 2023) (Ruling),Ruling,Supreme Court,Supreme Court,W Ouko,17 February 2023,2023.0,Nairobi,Criminal,Wafula v Director of Public Prosecution & 149 others,[2023] KESC 16 (KLR),,"Brief factsThe instant application was brought erroneously pursuant to the provisions of rule 4A(2), 31(2) and 38(4) of the Supreme Court Act, 2011 instead of section 11(1) of the Supreme Court Act and rules 6(2) of the Supreme Court Rules, 2020 in which the applicant, who was unrepresented by counsel sought, among other reliefs, an order of review and setting aside of the decision of the Deputy Registrar declining to lodge his pleadings. The applicant submitted that the Deputy Registrar denied him his right of appeal guaranteed by the Constitution of Kenya, 2010. The court further submitted that he had challenged the decision of the Court of Appeal to take out of the hearing list of February 1, 2022 Criminal Application No. E018 of 2021 and that that action was actuated by corruption within the Judiciary.","I, Now Opine as Follows:
3.
Appreciating that this application though brought under the wrong provisions of the law and rules, seeks reliefs under section 11(1) and rules 6(2) aforesaid, under which this court has jurisdiction to review the decision of the Deputy Registrar.
4.
Affirming the decision of this court in Okiya Omtatah Okoiti v Attorney General & another, SC Application No 1 of 2019; [2019] eKLR, that under rule 6 aforesaid, one of the roles of the Registrar is;
(b)
to decline pleadings that are not in accordance with the Constitution, the Act, these rules, or the court's practice directions for filings”. [my emphasis]
A party aggrieved by a decision of the Registrar may apply for a review to a single judge whose determination of the question is final.
5.
Therefore, having read the impugned ruling of the Deputy Registrar, to the effect that the petition has not been framed in the manner prescribed by the court’s rules and further that the decision of the Court of Appeal to take out the applicant’s appeal from the hearing list did not constitute a determination to warrant invocation of the court’s jurisdiction under article 163(4)(b) of the Constitution, I am satisfied that the Deputy Registrar properly and judiciously exercised his discretion in declining to lodge the applicant’s petition.
6.
Bearing in mind the principles enunciated in our decision in the case of Teachers Service Commission v Kenya National Union of Teachers & 3 others, SC Application No 16 of 2015; [2015] eKLR, that;
“
(35)
….Moreover, the appeal before the Court of Appeal is yet to be heard and determined.…. Any square involvement of this court, in such a context, would entail comments on the merits, being made prematurely on issues yet to be adjudged, at the Court of Appeal, and for which the priority date of September 22, 2015 has already been assigned. Such an early involvement of this court, in our opinion, would expose one of the parties to prejudice, with the danger of leading to an unjust outcome.…”
7.
Consequently, I agree with the findings of the Deputy Registrar that the petition of appeal is not framed in compliance with the Supreme Court Rules, 2020 and further that the Court of Appeal has not made any determination to require the intervention by this court.
8.
Accordingly, I decline to review the order of the Deputy Registrar dated November 4, 2022 and instead order that:
i.
The notice of motion dated November 16, 2022 and filed on November 21, 2022 is hereby dismissed.
ii.
As costs are awarded at the discretion of the court, parties shall bear their own costs.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/16/eng@2023-02-17
Petition 19 (E022) of 2022,Wanjigi v Chebukati & 2 others (Petition 19 (E022) of 2022) [2023] KESC 15 (KLR) (17 February 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",17 February 2023,2023.0,Nairobi,Civil,Wanjigi v Chebukati & 2 others,[2023] KESC 15 (KLR),,"A. Introduction and Background
1.
This is a petition of appeal dated July 29, 2022 and filed on August 1, 2022 by the appellant, Jimi Richard Wanjigi, pursuant to article 163(4)(a) of the Constitution. The appeal challenges the entire judgment and orders of the Court of Appeal (Makhandia, M’Inoti & Omondi, JJA) in Civil Appeal No E404 of 2022 delivered extempore on July 12, 2022 and whose reasons were rendered on July 29, 2022.
2.
The appellant was the nominated Safina political party presidential candidate for the August 9, 2022 general elections. On June 6, 2022 he presented his nomination papers before the 1st respondent, the duly gazetted returning officer for the presidential election, for registration as candidate pursuant to regulation 16 of the Elections (General) Regulations. Among the documents he submitted were: a letter from Daystar University indicating that he was pursuing a degree of Bachelor of Arts in International Relations and Security Management and had completed his coursework; copies of his transcripts; a letter from the Commission for University Education confirming that Daystar University was accredited and its degree is recognized in Kenya; and lists of voters from 24 counties who had nominated him for his presidential bid.
3.
Upon examining the documents, the 1st respondent ruled that the appellant was unqualified to be nominated to contest in the presidential election and rejected his candidature based on the following reasons: lack of a university degree as required by section 22 (2) of the Elections Act; lack of nomination by at least 2,000 voters each from at least 24 Counties as required by section 23(1)(d) of the Elections Act; and lack of a nomination certificate by Safina Political Party for the appellant’s running mate.","E. Analysis and Determination
i. Whether this honourable court has jurisdiction to hear and determine the appeal under article 163(4)(a) of the Constitution
41.
The respondents argue that the appeal does not raise any matter involving the interpretation or application of the Constitution as stated under article 163(4)(a) of the Constitution. They aver that the articles cited by the appellant were neither in issue nor decided by the superior courts and that the appellant has made mere allegations and does not present any grounds that can clothe this court with jurisdiction. It is their averment that the appeal does not qualify as an appeal as of right to invoke this court’s jurisdiction under article 163(4)(a) of the Constitution. Then again, the 3rd respondent asserts that the appellant also fails the criteria for certification as a matter of general public importance under article 163(4) (b) for the reason that this matter has not been certified as such.
42.
On the contrary, it is the appellant’s position that the present appeal is proper before this court as it involves questions of interpretation and application of the Constitution since it touches on the enforcement of his political rights enshrined under article 38 and actualized under articles 83(3), 137(1), 99(1)(b) and 148(1) of the Constitution. The appellant submits that the appeal challenges the application of articles 10, 25, 38, 47, 50, 83, 88, 99, 137, 148 and 249 of the Constitution as well as section 22(2) of the Elections Act.
43.
Jurisdiction is a preliminary issue that ought to be dealt with at the onset given that, without jurisdiction a court is obligated to down its tools as it does not have the power to adjudicate upon the proceedings before it. A court’s jurisdiction normally emanates from either the Constitution or legislation or both. This court stated so in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others SC Application No 2 of 2011 [2012] eKLR as follows:
“
(68)
A court’s jurisdiction flows from either the Constitution or Legislation or both. Thus, a court of Law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by Law”
44.
The Supreme Court’s appellate jurisdiction is set out in article 163(4) of the Constitution of Kenya which states:
“
(4)
Appeals shall lie from the Court of Appeal to the Supreme Court –
a.
as of right in any case involving the interpretation or application of this Constitution; and
b.
in any other case in which the Supreme Court, or Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).
(5)
A certification by the Court of Appeal under clause (4)(b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.”
45.
This court has stipulated the confines of its jurisdiction under article 163(4)(a) of the Constitution in a plethora of its decisions. In Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, Sup Ct Petition No 3 of 2012; [2012] eKLR, a two-judge bench of this court (Tunoi and Wanjala SCJJ) set the guiding principles as follows:
“
(28)
The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a).”
46.
Further, in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Sup Ct Petition No 10 of 2013 this court stated as follows:
“
(37)
In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the superior courts and has progressed through the normal appellate mechanism so as to reach this court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution. …”
47.
In Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney- General & 2 others Sup Ct Petition 45 of 2018 [2020] eKLR we held that it is not enough to invoke constitutional provisions in order to sustain an appeal to this court. We stated:
“
(62)
We cannot over-emphasize the specialized nature of article 163(4)(a)’s appellate jurisdiction of this court. That jurisdiction is not just another level of appeal. Thus, even if the original suit in the High Court or lower court invoked specific constitutional provisions, that fact alone is not enough for one to invoke and sustain an appeal before this court. A party has to steer his appeal in the direction of constitutional interpretation and application. He/she should directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution. It could be while a matter invoked specific constitutional provisions, those provisions were never part of the court(s)’determination and the matter turned on purely factual and or statutory issues. Thus, the following attributes are imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution:
i.
The jurisdiction reveres judicial hierarchy and the constitutional issues raised on appeal before the Supreme Court must have been first raised and determined by the High Court (trial court) in the first instance with a further determination on the same issues on appeal at the Court of Appeal.
ii.
The jurisdiction is discretionary in nature at the instance of the court. It does not guarantee a blanket route to appeal. A party has to categorically state to the satisfaction of the court and with precision those aspects/issues of his matter which in his opinion falls for determination on appeal in the Supreme Court as of right. It is not enough for one to generally plead that his case involves issues of Constitution interpretation and application.
iii.
A mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involves little or nothing to do with the application or interpretation of the Constitution does not bring an appeal within the jurisdiction of the Supreme Court under article 163(4)(a).
iv.
Only cardinal issues of constitutional law or of jurisprudential moment, and legal issues founded on cogent constitutional controversies deserve the further input of the Supreme Court under article 163(4)(a).
v.
Challenges of findings or conclusions on matters of fact by the trial court of competent jurisdiction after receiving, testing and evaluation of evidence does not bring up an appeal within the ambit of article 163(4)(a).”
48.
In the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others Sup Ct App No 5 of 2014 [2014] eKLR we emphasized that at the very least where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, an appellant should demonstrate that the appellate court’s reasoning and conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.
49.
It is therefore evident that the issues that this court would exercise its jurisdiction over pursuant to article 163(4)(a) of the Constitution are only issues involving the interpretation or application of the Constitution, which constitutional issues had been considered and determined by the superior courts. A question identified as involving interpretation or application of the Constitution thus must be one that was argued in the court of first instance and canvassed through the hierarchy of courts, at the Court of Appeal and finally in this court. Mere allegation by a party that a question of constitutional interpretation or application is involved does not automatically bring the appeal within the ambit of article 163(4)(a) of the Constitution, unless the party can show that the matter by virtue of the court’s determination took a constitutional trajectory of interpretation and application.
50.
The appellant is aggrieved by the decision of the 1st respondent, as affirmed by the 3rd respondent, rejecting his application to be registered as a presidential candidate in the elections scheduled for August 9, 2022 on account of failure to meet the requisite qualifications. His judicial review application was subsequently dismissed by the High Court and his appeal disallowed by the Court of Appeal.
51.
Having perused the record before us, we note that at the High Court, the grounds set out in support of the Judicial Review Application were illegality, irrationality, unreasonableness, and bias. The appellant submitted that the 1st and 3rd respondents’ actions were contrary to section 22(2) of the Elections Act, and that he had legitimate expectation that the respondents would apply the law and the Constitution including binding precedent. The trial Judge dismissed the application holding that judicial review does not concern itself with the merits of the decision but only on the decision-making process. For that reason, the learned judge found he had no jurisdiction to hear the matter as he could not look into the correctness or otherwise of the 3rd respondent’s conclusion that the appellant had not satisfied the requirements to contest as a presidential candidate.
52.
At the Court of Appeal, the issues framed for determination by the court were whether the appellant’s application disclosed grounds for judicial review in the context of the nature of judicial review proceedings and whether, properly considered, the appellant’s complaints were meritorious enough to warrant interfering with the decision of the 1st and 3rd respondents in finding the appellant as unqualified to contest in the elections scheduled for August 9, 2022.
53.
In its determination, the Court of Appeal faulted the trial court for strictly constricting judicial review to the pre-2010 constitutional dispensation and for failing to see that the appellant’s application revealed in sufficient detail grounds for judicial review which necessitated a decision from the court. The appellate court identified and determined the issues based on the grounds raised by the appellant for judicial review, and proceeded to make a determination on whether the complaints were meritorious enough to warrant interference by the court, specifically whether the appellant was qualified for registration as a presidential candidate in the elections scheduled for August 9, 2022.
54.
Having identified that the genesis of the appeal is from a judicial review application at the High Court, we note that this court in Peninah Nadako Kiliswa v Independent Electoral & Boundaries Commission (IEBC) & 2 others; SC Petition No 28 of 2014 [2015] eKLR stressed that by no means is this court an open forum for all cases from the appellate court on judicial review matters and that each appeal is to be considered on its merits on a case-to-case basis. We enunciated that only causes bearing a real constitutional issue can be heard by this court and a plain claim that a matter raises issues of interpretation or application of the Constitution does not suffice. We set out principles a party should comply with when appealing to the Supreme Court in a matter which has originated in the High Court by way of judicial review, as follows:
i.
Not all Judicial Review matters are appealable to the Supreme Court, as of right;
ii.
It is open to the party concerned to move the court on appeal under article 163(4)(b) of the Constitution, in which, the normal certification process applies;
iii.
Where such an appeal comes under article 163(4)(a), the petitioner is to identify the particular(s) of constitutional character that was canvassed at both the High Court and the Court of Appeal;
iv.
The party concerned should demonstrate that the superior courts had misdirected themselves in relation to prescribed constitutional principles, and either granted, or failed to grant Judicial Review remedies, the resulting decisions standing out as illegal, irrational, and/or unprocedural, hence unconstitutional.
55.
Based on the foregoing, the appellant having moved this court under article 163(4)(a) of the Constitution, we have to interrogate whether this appeal meets the criteria set out under the Constitution and the decisions set out above. The first question to answer therefore is whether the appellant has identified particular issues of constitutional interpretation and application, and secondly whether the issues were canvassed at the superior courts which progressed through the normal appellate mechanism so as to reach this court by way of appeal as of right and or demonstrated that the superior courts misdirected themselves in relation to prescribed constitutional principles. All these have to be further looked at in the context that not all appeals from judicial review satisfy this court’s jurisdictional prerequisite.
56.
The appellant is adamant that his appeal is as of right under article 163(4)(a) of the Constitution as it involves the interpretation and application of the Constitution and specifically articles 10, 38, 47, 27, 83, 88 and 249 of the Constitution. He avers that the decision of the Committee was challenged at the High Court seeking its intervention pursuant to its supervisory powers under articles 1, 2, 3, 10, 25, 27, 38, 47, 48, 50, 81, 88, 136, 137, 138, 165, 258 and 259 of the Constitution. It is the appellant’s submission that the Court of Appeal in making its determination considered the provisions of articles 10, 38, 47, 50, 88, 137, 148 and 249 of the Constitution. He submits that application of article 10 was core in the determination of the dispute before the 3rd respondent. He adds that the appeal relates to the application of articles 10, 50, 88 and 249 of the Constitution as canvassed before the court.
57.
To him, the key determination of the dispute is the application of the right to contest for public office under article 38 including article 83(3) of the Constitution which provides for the facilitation rather that denial of an eligible citizen of the right to vote or stand for election. He faults the Court of Appeal for failing to consider the import and effect of section 22(2) of the Elections Act and regulation 47 of Elections (General) Regulations 2012 as amended in 2017 as well as binding precedent.
58.
As we noted in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment) a question regarding the interpretation or application of the Constitution may arise from a multiplicity of factors and interrelationships in the various facets of the law, and the Constitution should be interpreted broadly and liberally so as to capture the principles and values embodied in it.
59.
Evaluating the record, we discern that the appellant was partly successful with his argument on the extent of the jurisdiction of the court in relation to judicial review applications. This paved way for the appellate court to proceed to analyse the merits of the decision by the 1st and 3rd respondents, in exercise of its powers as the first appellate court to reprise the evidence. In addressing itself to the crux of the appellant’s contention relating to his qualification to contest as a candidate, the appellate court addressed itself to the import of the previous decisions in Janet Ndago Ekumbo Mbete v IEBC & 2 others (supra) rendered on March 15, 2013 based on section 22(2) of the Elections Act as read with regulation 47(1) of the Elections (General) Regulations as they stood in 2013. The court also took into account the decision in Mable Muruli v Wycliffe Ambetsa Oparanya & 3 Others [2013] eKLR and the amendment of regulation 47(1) by Legal Notice No 72 of 2017 and the more recent judgment rendered on June 30, 2022 in Walter Onchonga Mongare v. Wafula Chebukati & 2 (supra).
60.
In addition, on the mismatch of the appellant’s supporters and their identities, inconsistency between the electronically submitted copy and the hard copy and had illegible copies of identification documents, the Court of Appeal found that:
“
There is no dispute that article 137(1) of the Constitution and section 23 of the Elections Act expressly demand that to be qualified for nomination, a presidential candidate’s bid must be supported by not fewer than 2,000 voters in a majority each of the 47 counties. It is absolutely clear to us that read together, the concern of article 137(1), section 23 and regulation 23, is not a mere list of names of supporting voters. In addition to the list of names of supporting voters, the list must contain their signatures, identity card or passport numbers, in both hard and electronic copies. The lists are also required to be serially numbered and accompanied by copies of the identification documents of the supporting voters…
We are not persuaded that this argument has any merit. A reading of article 137(1), section 23 and regulation 18 leaves no doubt in our minds that the purpose of these provisions is to ensure that a presidential candidate is supported by the prescribed number of genuine and verifiable voters in the prescribed number of counties. The concern is not production of a mere numerical list of names, even if they are just ghost voters. The law seeks to avoid manufactured list of non-existent supporters and that is why it requires, in addition to names of the supporters, their signatures and copies of identification documents. …”
61.
On the issue of the appellant’s running mate’s nomination certificate, the appellate court held:
“
76.
Article 137(1)(c) is clear enough and does not require further elucidation. To qualify for nomination for election as President, and therefore as a running mate, the running mate must be nominated by a political party.
77.
The second noteworthy feature about article 148 is that of the four qualifications set out in article 137(1), it exempts from application to the running mate only the requirement in article 137(1)(d) for nomination by not fewer than 2000 voters from each of a majority of the counties. The express exclusion of article 137(1)(d) means that to qualify for nomination by the presidential candidate as a running mate, the running mate must satisfy the other three requirements in article 137(1), namely, be a citizen by birth, be qualified to stand for election as a member of Parliament and be nominated by a political party or be an independent candidate.”
62.
Lastly, on the issue of bias, the Court of Appeal’s finding was that the appellant’s allegations relating to articles 88 and 249 of the Constitution on the functions and independence of the 2nd respondent was no more than a bland assertion unsupported by material evidence.
63.
On our part, it is evident that the Court of Appeal addressed each of the appellant’s grievances. The main grievance, in our view, is the qualification of the appellant based on section 22(2) of the Elections Act and as read with regulation 47(1) of the Elections (General) Regulations. The court also made reference to article 137(1), section 23 and regulation 23, regulation 18 ad article 148. While the said provisions and grievances by the appellant are underpinned on article 38 and 83(3) of the Constitution, the gravamen of the dispute in our view had nothing to do with the interpretation or application of the Constitution but rather a factual exercise by the superior courts below to evaluate the appellant’s compliance. None of the provisions of statute are by themselves under challenge.
64.
Although the appellant cites several provisions of the Constitution, he has not set out, to any extent and to our satisfaction, the manner in which the superior courts interpreted and applied the Constitution one way or the other. It cannot thus be said that the issues were determined in consideration and pursuant to the interpretation or application of the Constitution to therefore warrant an appeal to this court under article 163(4)(a) of the Constitution. The appellant seems to be inviting us to reprise the evidence and be persuaded as to make a conclusion that resonates with his. This is an invitation that we must decline.
65.
As we held in Aviation & Allied Workers Union of Kenya v Kenya Airways Limited & 3 others, [2017] eKLR, and Petition No 4 of 2015 and Paul Mungai Kimani & 2 others v Kenya Airports Authority & 3 others [2021] eKLR, it is not granted that whenever the Court of Appeal mentions a provision of the Constitution in its decision, the matter under consideration automatically invokes this court’s appellate jurisdiction under article 163(4)(a) of the Constitution. In any event, the Constitution is the supreme law of the land and all decisions have to abide by and follow it. Hence, a mention of the Constitution by the court when making a determination will not always clothe the matter with constitutional issues.
66.
Echoing our position in Rutongot Farm Ltd v Kenya Forest Service & 3 others SC Petition 2 of 2016 [2018] eKLR, the appellant having not sustained a case that raises any constitutional issues, their interpretation or application, the court is not vested with the jurisdiction to hear and determine the present appeal pursuant to the provisions of article 163(4)(a) of the Constitution.
67.
Consequently, it serves no purpose to address ourselves to the remaining issues. Despite asking us to determine this matter for the sake of posterity, the appellant has not shown of the existence of any constitutional moment to be seized and the extent of such moment. The provisions of the Constitution not being in contention, qualifications and nomination of candidates will continue to be addressed as and when they arise based on peculiar circumstances obtaining.
68.
On the issue of costs, we are not persuaded to make any order for costs against any of the parties in this matter, the matter in issue is of the nature of public interest.
69.
We thank all counsel for their input, research and presentation in the course of this matter.
ii) Orders
69.
In the end, we make the following orders:
1.
The 1st and 2nd respondents’ preliminary objection dated August 2, 2022 is upheld.
2.
The petition of appeal dated July 29, 2022 and filed on August 1, 2022 is hereby struck out.
3.
Each party shall bear their own costs.
It is so ordered.",Allowed in part ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/15/eng@2023-02-17
Petition 16 (E023) of 2021,Westmont Holdings  SDN BHD v Central Bank of Kenya & 2 others (Petition 16 (E023) of 2021) [2023] KESC 11 (KLR) (17 February 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",17 February 2023,2023.0,Nairobi,Civil,Westmont Holdings  SDN BHD v Central Bank of Kenya & 2 others,[2023] KESC 11 (KLR),,"Brief facts
The appellant was dissatisfied with the order of the Court of Appeal that required it to deposit the sum of Kshs 20,000,000 in court as security for costs, failure to which the appeal at the Court of Appeal would stand struck out. Aggrieved, the appellant unsuccessfully sought leave from the Court of Appeal to appeal to the Supreme Court. Further aggrieved, the appellant filed the instant application challenging both the Court of Appeal's orders on security for costs and its refusal to grant certification for leave to appeal. The appellant sought the order for security for costs be declared to be in contravention of articles 48, 50 and 159 of the Constitution.
Issues
What were the guidelines to be considered by courts before issuing an order for security for costs?
Whether imposition of additional security for costs in itself, and as a condition to hearing a matter, was unconstitutional.
Whether the use of the word ‘fee’ in the wording of the right to access to justice extended to both filing fees and costs (inclusive of applications for additional security for costs).","E. Analysis and Determination
35.
The court defined one issue for determination pursuant to its ruling dated October 8, 2021 as follows:
“
Whether an order for security for costs is unreasonable as it impedes a litigant’s access to justice by imposing a condition precedent before the latter can be heard, contrary to articles 48, 50 and 159 of the Constitution.”
36.
Jurisdiction of the Court of Appeal to award security for costs and specifically in regard to the nominal amount is provided for in the law. The requirement for security for costs including additional security is not strange. Rule 107(3) of the Court of Appeal Rules, 2010 Court of Appeal Rules, 2010 states:
“
(3)
The court may at any time if it thinks fit, direct that further security for costs be given and may direct that security be given for the payment of past costs relating to the matters in question in the appeal.”
37.
This legislation gives the Court of Appeal authority to exercise its discretionary jurisdiction in determining whether to award further security for costs above the set nominal amount, which is set at Shs 2,000/-. This discretion ought not to be exercised whimsically but in a manner that would not impede a party’s access to justice. In Marco Tools & Explosives Ltd v Mamujee Brothers Ltd, [1988] KLR 730 it was stated that in exercising this discretion, it depends upon the circumstance of each case with the final result being reasonable and modest.
38.
Moreover, courts stand guided by established principles set out in two jurisprudential cases to which the appellate court directed its mind in this matter. In Sir Lindsay Parkinson and Company Limited v Triplan Ltd, [1973] 2 WRR, Lord Denning MR set out the parameters that should guide a court in determining whether to order security for costs as follows:
i.
Whether the claimant’s claim was bona fide and not a sham;
ii.
Whether the claimant had a reasonably good prospect of success;
iii.
Whether there was admission by the defendant on the pleadings or elsewhere that money was due;
iv.
Whether there was a substantial payment into court or an “open offer” of a substantial amount;
v.
Whether the application for security was being used oppressively, for example so as to stifle a genuine claim;
vi.
Whether the claimant’s want of means had been brought about by the conduct of the defendant’s, such as delay in payment or doing their part of the work;
vii.
Whether the application for security was made at a late stage in the proceedings.
Also, in Keary Development v Tarmac Construction (1995) 3 All ER 534, guidelines were laid down to guide a court while exercising discretion on whether to order a plaintiff, which is a limited liability company, to provide security for costs to a defendant in a suit as follows:
1.
The court has complete discretion whether to order security, and accordingly it will act in the light of all the relevant circumstances.
2.
The possibility or probability that the plaintiff company will be deterred from pursuing its claim by an order for security is not without a more sufficient reason for not ordering security. It is implicit that a company may have difficulty meeting an order.
3.
The court must balance the injustice to the plaintiff prevented from pursuing a proper claim against the injustice to the defendant if no security is ordered and at the trial the plaintiff’s claim fails and the defendant finds himself unable to recover his costs. The power must neither be used for oppression by stifling a claim particularly when the failure to meet that claim might in itself have been a material cause of the plaintiff’s impecuniosity, nor as a weapon for the impecunious company to put pressure on a more prosperous company.
4.
The court will look to the prospects of success, but not go into the merits in detail.
5.
In setting the amount it can order any amount up to the full amount claimed by way of security, provided that it is more than a simply nominal amount; it is not bound to make an order of a substantial amount.
6.
Before refusing security the court must be satisfied that, in all the circumstances, the claim would be stifled. This might be inferred without direct evidence, but the court should also allow that external resources might be available.
7.
The lateness of the application can properly be taken into account.
39.
On that account, there being no contention as to the court’s power to grant orders of security for costs as laid down in legislation, guided by the principles stated in the foregoing cases; also taking into account that this matter arises from a first appeal from the appellate court based on its discretionary pronouncements, falling outside the set of questions appealable to this court (see Daniel Kimani Njihia v Francis Mwangi Kimani & another; SC Civil Application No 13 of 2014; [2015] eKLR); what then warrants this court’s intervention on this matter of security for costs as a matter of general public importance?
40.
In answering this question based on what this court established as an issue for determination as a matter of general public importance, three issues arise: is imposition of additional security for costs in itself unconstitutional? What about imposing security for costs as a condition precedent to the hearing of the matter? And when does it become unreasonable and/or stifling to impose security for costs? We now proceed to address the said issues.
(a) Is it unconstitutional to impose an order for security for costs?
41.
In regard to interpretation of the Constitution, article 259(1) of the Constitution lays down the rule of interpretation as follows: “This Constitution shall be interpreted in a manner that – (a) promotes its purposes, values and principles; (b) advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.” In interpreting the Constitution and developing jurisprudence therefore, a court ought to take a purposive interpretation as guided by the Constitution. This was expressed by this court in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, SC Advisory Opinion No 2 of 2012 [2012] eKLR as well as In the Matter of Interim Independent Electoral Commission, SC Const Application No 2 of 2011 [2011] eKLR.
42.
Courts being the entities empowered with the duty to adjudicate disputes and dispense justice, are required to be mindful of the spirit, values, and principles of the Constitution; and stand guided by the principles prescribed under article 159 of the Constitution while exercising their judicial authority. This ensures that justice is done to all irrespective of status and in a manner that protects and promotes the purpose and principles of the Constitution. The Constitution safeguards a person’s right to have any dispute resolved by the application of law decided in a fair and public hearing as provided under article 50 of the Constitution, thereby, ensuring a party’s access to justice is not violated.
43.
Article 48 states that “the State should ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice”. (emphasis ours) A person as defined under article 260 of the Constitution includes a company, association or other body of persons whether incorporated or unincorporated. A perusal of the CKRC Final Report shows that it was the intention of the drafters of the Constitution to have a properly functioning judicial system that is accessible to all persons to ensure and promote equality of all persons before the law. In their views, Kenyans stated that access to courts could be improved by reducing court fees or paying fees in instalments. The significance of the provision in article 48 is that “poverty is no bar to litigation” and therefore, courts should consider the issue of a litigant’s impecuniosity when ordering security for costs.
44.
While there is a distinction between filing fees and costs, the use of ‘and’ in the constitutional provision indicates that every citizen first and foremost is entitled to access to justice. However, if any fees are required to facilitate the access to justice, then the fee should be reasonable and not impede access to justice. Hence, we can construe the fees contemplated under the Constitution to encompass any monetary payment made as a condition to access justice. This, in our view, extends to both filing fees and costs inclusive of the application for additional security for costs which is payable in the course of proceedings in the wider context of access to justice.
45.
Security for costs is defined in the Black’s Law Dictionary Ninth Edition at page 1478 as money, property, or a bond given to a court by a plaintiff or an appellant to secure the payment of court costs if that party loses. The purpose of security for costs order is to alleviate the concerns of potential difficulties in seeking to recover costs. An applicant of such an order, is required to establish that the respondent, if unsuccessful in the proceedings will be unable to pay costs. The objective is to protect a party from circumstances where one is dragged to court and made to incur costs due to litigation. It is meant to prevent frivolous and vexatious litigation.
46.
In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others: Civil Appeal(Application) 38 of 2013; [2014] eKLR, the Court of Appeal gave the rationale for security for costs which is to ensure firstly, that a party is not left without recompense for costs that might be awarded to him in the event that the unsuccessful party is unable to pay the same due to poverty; secondly, it ensures that a litigant who by reason of his financial ability is unable to pay costs of the litigation if he loses, is disabled from carrying on litigation indefinitely except on conditions that offer protection to the other party. Further, the court stated that in an application for security for costs, the applicant ought to establish that the respondent, if unsuccessful in the proceedings, would be unable to pay costs due to poverty. It is not enough to allege that a respondent will be unable to pay costs in the event that he is unsuccessful. In Kibiwott & 4 others v Registered Trustees of Monastery of Victory Nakuru, HCCC No 146 of 2004 the court there observed that for a party to succeed in an application for security for costs has to prove that the opposing party will not be able to pay the costs to be awarded in the event of the suit filed by such a party being dismissed.
47.
The rationale for security for costs therefore is aimed at balancing the overarching objectives in the administration of justice as expressed under articles 48, 50 and 159 of the Constitution, that courts should aim to dispense justice. As such, the costs protect the defendant or a respondent against the risk that a costs order made in its favour may be rendered ineffective by the plaintiff’s impecuniosity. An order for security for costs will normally affect the interest of plaintiff’s access to the court system, regardless of their financial status; shield a successful defendant from litigation costs; and conserve the courts processes: costs and security for costs may discourage frivolous claims, and encourage the parties to conduct litigation in a manner that is proportional to the matters at issue.
48.
On balancing the right to access to justice and the right to security for costs, article 24(1)(d) of the Constitution, provides: -
“
24 (1)
A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including-
a.
......
d.
the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others ”
49.
Beyond articles 48 and 24, what is the law governing security for costs in Kenyan courts? Does the same impede access to justice?
50.
In our judicial system, the legal position on the subject of security for costs is inexplicit. In certain instances, the amount payable is provided for in legislation or Regulations, in other cases the same is left to the discretion of the concerned court.
An example is section 78(1) of the Elections Act which specifically provides that a person who presents a petition to challenge an election shall deposit security for costs of: one million shillings, in the case against a presidential candidate; five hundred thousand shillings, in the case of a petition against a Member of Parliament or a County Governor; or one hundred thousand shillings in the case of a petition against a member of county assembly. The Act also provides that “where a petitioner does not deposit security as required, or if an objection is allowed and not removed, no further proceedings shall be heard on the petition and the respondent may apply to the election court for an order to dismiss the petition and for the payment of the respondent's costs.”
51.
In civil proceedings before subordinate courts and the High Court, the Civil Procedure Act provides that costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge has full power to determine by whom, and out of what property and to what extent such costs are to be paid, and shall follow the event unless the court or judge shall for good reason otherwise order under section 27. However, order 26 of the Civil Procedure Rules 2010, provides that in any suit the court may order for the whole or any part of the costs any defendant or third party be given by any other party. In any suit brought by a person not residing in Kenya, if the claim is founded on a bill of exchange or other negotiable instrument or on a judgment or order of a foreign court, any order for security for costs shall be in the discretion of the court. If the security for costs is not given within the time ordered and if the plaintiff is not permitted to withdraw the suit, the court shall, upon application, dismiss the suit. If a suit is dismissed and the plaintiff proves that he was prevented by sufficient cause from giving the required security of costs, the court may set aside the order dismissing the suit and extend the time for giving the required security. Here we see the Rules giving an option to have a dismissed suit reinstated if the plaintiff shows cause that he was prevented from giving the required security for costs.
52.
At the Court of Appeal, under Order 42, rule 14, at any time after the memorandum of appeal has been served, in its discretion, the court may order the appellant to give security for the whole or any part of the costs of such appeal. If the appellant is not ordinarily resident in Kenya and has no sufficient property in Kenya (other than the property to which the appeal relates) the court shall order the giving of security for the whole or part of the costs of the appeal within a time to be limited in the order. If security for costs is not given within the time ordered the court may dismiss the appeal.
53.
Rule 107 of the Court of Appeal Rules provides that, subject to rule 115, there shall be lodged in court on the institution of a civil appeal as security for the costs of the appeal the sum of two thousand shillings. Where an appeal has been withdrawn under rule 96 after notice of cross-appeal has been given, the court may, on the application of any person who is a respondent to the cross-appeal, direct the cross-appellant to lodge in court as a security for costs the sum of two thousand shillings or any specified sum less than two thousand shillings, or may direct that the cross-appeal be heard without security for costs being lodged.
54.
Rule 115 provides that if in any appeal from a superior court, in its original or appellate jurisdiction in any civil case the court is satisfied on the application of an appellant that he lacks the means to pay the required fees or to deposit the security for costs and that the appeal is not without reasonable possibility of success, the court may by order direct that the appeal may be lodged without prior payment of fees of court, or any payment of any specified amount less than the required fees; without security of costs being lodged, or on lodging of any specified sum less than the amount specified by rule 107.
55.
The approach in other jurisdictions is different. In New South Wales, procedural regulations provide for security for costs and the factors a court has to consider before making such an order. In that regard, r 42.21 of the Uniform Procedure Rules 2005 makes provision on security for costs as follows:
1.
If, in any proceedings, it appears to the court on the application of a defendant-
a.
that a plaintiff is ordinarily resident outside Australia, or
b.
that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or
c.
that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or
d.
that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or
e.
that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so, or
f.
that there is reason to believe that the plaintiff has divested assets with the intention of avoiding the consequences of the proceedings, the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given. (1A) In determining whether it is appropriate to make an order that a plaintiff referred to in sub-rule (1) give security for costs, the court may have regard to the following matters and such other matters as it considers relevant--
a.
the prospects of success or merits of the proceedings,
b.
the genuineness of the proceedings,
c.
the impecuniosity of the plaintiff,
d.
whether the plaintiff's impecuniosity is attributable to the defendant's conduct,
e.
whether the plaintiff is effectively in the position of a defendant,
f.
whether an order for security for costs would stifle the proceedings,
g.
whether the proceedings involves a matter of public importance,
h.
whether there has been an admission or payment in court,
i.
whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant,
j.
the costs of the proceedings,
k.
whether the security sought is proportionate to the importance and complexity of the subject matter in dispute,
l.
the timing of the application for security for costs,
m.
whether an order for costs made against the plaintiff would be enforceable within Australia,
n.
the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff.
(1B)
If the plaintiff is a natural person, an order for security for costs cannot be made merely on account of his or her impecuniosity.
2.
Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct.
3.
If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff's claim for relief in the proceedings be dismissed.
4.
This rule does not affect the provisions of any Act under which the court may require security for costs to be given.”
56.
We are also persuaded by the finding of the Family Court of Australia in Stapleton & Bryant (Security for Costs) [2009] FamCAFC 63; (28 April 2009) where the court found that in considering whether or not to make an order for security for costs, matters which maybe relevant include the following: the means of an applicant to satisfy an order for costs if he or she is unsuccessful (ordinarily the means of the applicant is not alone sufficient to justify an order for costs because of the rule that poverty should not be a bar to justice; however, the financial weakness maybe relevant, for example, if the applicant is a company); the prospects of success is a relevant matter to take into consideration(ordinarily, the court will not undertake a detailed assessment of the likelihood of the applicant’s success unless it can be demonstrated that there is a high probability of success or failure); whether the applicant's claim is made bona fide, whether it is genuine and not trivial, vexatious or a sham; whether or not an order for costs would be oppressive or stifle the litigation; whether or not the litigation may involve a matter of public importance; whether or not there has been delay in bringing the application; and any difficulties of enforcing an order for costs and the amount of costs to be incurred.
57.
In Canada, rule 56 of the Civil Procedure Chapters, the court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that, the plaintiff or applicant is ordinarily resident outside Ontario; the plaintiff or applicant has another proceeding for the same relief pending in Ontario or elsewhere; the defendant or respondent has an order against the plaintiff or applicant, and there is good reason to believe that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent; there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay costs of the defendant or respondent; or a statute entitles the defendant to security for costs.
58.
In Ontario Inc v Ross, 2017 ONSC 1295, (SCJ), Justice Henderson stated that when making an order for security for costs, the initial onus is on the defendant to satisfy the court that it appears there is good reason to believe that the matter comes within one of the circumstances enumerated in rule 56.01…;
once the first part of the test is satisfied, the onus is on the plaintiff to establish that an order for security for costs would be unjust…; the plaintiff can meet the onus by demonstrating that: (a) the plaintiff has appropriate or sufficient assets in Ontario or in a reciprocating jurisdiction to satisfy any order of costs made in the litigation; (b) the plaintiff is impecunious and the plaintiff’s claim is not plainly devoid of merit… or (c) if the plaintiff cannot establish that it is impecunious, but the plaintiff does not have sufficient assets to meet a costs order, the plaintiff must satisfy the court that the plaintiff’s claim has a good chance of success on the merits.
59.
In Cigar500.com inc v Ashton Distributors (2009), 2009 CanLII 46451 (ON SC), 99 OR (3d) 55, (SCJ), the court observed that when making an order for security for costs, the court should be guided by two principles namely, everyone should be able to have their day in court; and defendants need reasonable protection from claims that have no merit.
60.
Furthermore, r 56 of the Canadian Civil Procedure Chapter, makes provision for the amount and form of security for costs in that a court has discretion in determining the amount of security, form of security, and timing for having any funds paid into court. Typically, security for costs orders are made as “pay-as-you- go” orders, providing that a certain amount is to be paid up until a given stage of the proceedings. In Websports Technologies v. Cryptologic Inc, [2005] OJ No 1320 (SCJ, Ont master) it was observed as follows:
“
For at least the last 20 years, the court has responded to motions for security for costs with ""pay as you go"" orders…Thus, if the motion is brought at an early stage in the proceedings, the quantum of costs to be posted generally does not include all costs incurred and to be incurred up to completion of trial. Instead, the quantum awarded usually covers the cost of what has been done to-date and the anticipated cost of the next step or the next few steps in the litigation process. As a result, if, after the completion of that event, the parties are unable to agree, they can return to court, via motion, in order to revisit the issue of quantum. If the plaintiff's financial position has not improved since the initial motion, the quantum of security to be posted is usually increased to take the parties through the next event or series of events. It is also open to the plaintiff, at the return of the motion, to demonstrate that they are now financially stable, such that no further security is required and that which has been posted may be ordered released. As a result, it is well understood that orders for security for costs are not, and cannot, be final. Circumstances change and it is therefore appropriate to revisit the issue of whether security is merited, and, if so, in what amount, from time to time (see rule 56.07).”
61.
In Spot Coffee Park Place Inc v Concord Adex Investments Ltd, 2021 ONSC 978 (SCJ Ont master) the court set principles and factors to apply to a motion for increased security for costs under rule 56.07 as follows:
i.
a second motion for security for costs will not succeed unless there is an unforeseen and material change in circumstances since the first order for security. An example of an unforeseen and material change in circumstances might be where a plaintiff has come into a sum of money sufficiently large that they could no longer make an impecuniosity argument;
ii.
the defendant seeking increased security bears the onus of demonstrating a significant gap between the security ordered and the actual expenses which were not foreseeable and that in hindsight the original request for security for costs was based on an assessment of the complexity of the case which hindsight has established was not realistic;
iii.
the jurisdiction to increase or decrease the amount of security already ordered should not be exercised lightly or be used to second guess the court that made the original order, whether on consent or otherwise, unless the gap between what was ordered and what later appears to be necessary is significant…”.
62.
Having considered the various legal provisions in Kenya and noting the jurisprudence elsewhere, this is what we make of it: the imposition of security for costs by a court is in itself constitutional; there are no clear guiding principles on what a court considers when making an order for security for costs; at times the amount payable is left to the discretion of the court; in other times, the amount payable is set out in statute or regulations; in other times, although the amount payable is prescribed by legislation or regulation, the court has the discretion of reducing or enhancing the same or even waiving payment of the same; a suit maybe dismissed for non-payment of security for costs; and a dismissed suit may be reinstated upon the appellant or plaintiff showing cause for the non-payment of ordered costs. We are also cognizant of the fact that different courts in our judicial system have crafted their own rules of procedure to govern them including those of security for costs. However, there are no standard guidelines on factors to be considered whilst making an order for security for costs.
63.
In the result, and conscious of this court’s core mandate under section 3 of the Supreme Court Act as the court with final judicial authority, we deem it fit to set guiding principles which will assist courts below when considering an application by a defendant or respondent for security for costs. Thus, in determining whether it is appropriate to make an order that a party gives security for costs, the court may have regard to the following matters and such other matters as it considers relevant in the peculiar circumstances of each case: –
i.
the prospects of success or merits of the proceedings,
ii.
the genuineness of the proceedings,
iii.
the impecuniosity of the plaintiff,
iv.
whether the plaintiff's impecuniosity is attributable to the defendant's conduct,
v.
whether the plaintiff is effectively in the position of a defendant,
vi.
whether an order for security for costs would stifle the proceedings and/or impede access to justice,
vii.
whether the proceedings involve a matter of public importance,
viii.
whether there has been an admission or payment in court,
ix.
whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant,
x.
the costs of the proceedings,
xi.
whether the security sought is proportionate to the importance and complexity of the subject matter in dispute,
xii.
the timing of the application for security for costs,
xiii.
whether an order for costs made against the plaintiff would be enforceable within the republic of Kenya,
xiv.
the ease and convenience or otherwise of enforcing a Kenyan court judgment or order in the country of a non-resident plaintiff or appellant.
xv.
if the plaintiff is a natural person, an order for security for costs cannot be made merely on account of his or her impecuniosity.
xvi.
security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct.
xvii.
if the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff's claim for relief in the proceedings be dismissed.
xviii.
the provisions of any Act under which the court may require security for costs to be given such as the Elections Act.
xix.
a second motion for security for costs will not succeed unless there is an unforeseen and material change in circumstances since the first order for security. An example of an unforeseen and material change in circumstances might be where a plaintiff has come into a sum of money sufficiently large that they could no longer make an impecuniosity argument.
xx.
the defendant seeking increased security bears the onus of demonstrating a significant gap between the security ordered and the actual expenses which were not foreseeable and that in hindsight the original request for security for costs was based on an assessment of the complexity of the case which hindsight has established was not realistic.
xxi.
the jurisdiction to increase or decrease the amount of security already ordered should not be exercised lightly or be used to second guess the court that made the original order, whether on consent or otherwise, unless the gap between what was ordered and what later appears to be necessary is significant.
64.
We agree with the jurisprudence from other jurisdictions that a court ought to take into consideration several factors before making an order for security for costs.
b. The constitutionality of imposing a condition precedent
65.
The Court of Appeal in granting the order for additional security for costs of Kshs.20,000,000 added a condition precedent in its impugned ruling. It directed as follows:
“
Accordingly, we order the said sum be deposited in court as security for costs in this appeal within 45 days of this ruling, failing which the appeal will stand struck out with costs to CBK.”
This in essence affirmed what the respondent had sought in the application before the appellate court. Is it constitutional to impose a condition precedent to an order for security for costs?
66.
Rule 107 of the Appellate Jurisdiction Act which was relied upon does not expressly provide for any condition to be imposed when the court makes an order for security for costs. We have had occasion to peruse the Appellate Jurisdiction Act, chapter 9 of the Laws of Kenya and note that the same does not expressly make provision for the limitation of the right to access justice on the basis of security for costs. The same is, however, as demonstrated elsewhere in this judgment extensively provided for in the Rules guiding the court. We reiterate our finding in the case of Gladys Shollei v Judicial Service Commission & another, SC Petition 34 of 2014; [2022] eKLR, that a right or fundamental freedom cannot be limited through regulations, in this case rules.
67.
This is in contradistinction with, for instance, rule 7 of the Supreme Court (Presidential Election Petition) Rules 2017 which stipulates that before filing a petition a petitioner shall deposit a sum of one million as security for costs. This is a prerequisite before filing a presidential election petition arising from an election as mandated under article 163(3)(a) of the Constitution over which this court has original and exclusive jurisdiction. However, it is important to point out that in these circumstances, the statute expressly fixes an amount payable as security, as it does for matters challenging elections arising out of an election held under the Constitution. It is therefore not left to the court to determine the costs to be deposited as security for costs.
68.
Imposition of a condition precedent to a court order is an ‘unless’ order which is defined in the English case of Marcan Shipping (London) Ltd v Kefalas & another [2007] EWCA Civ 463 as:
“
Unless” orders have a long history, dating back well into the nineteenth century and it was recognized at an early stage that once the condition on which it depended had been satisfied, the sanction became effective without the need for further order. In Whistler v Hancock (1878) 3 QBD 83 the defendant obtained an order that unless the statement of claim were delivered within a week the action should be at an end.”
69.
To that end, we are of the considered view that a court may impose a condition precedent when imposing an order for security for costs in special and exceptional circumstances such as extraordinary and important cases, for instance, election petitions. The same should, however, be done in a manner that is reasonable and not to punish or subdue a genuine claim. In that regard, imposing a condition precedent is not in itself unconstitutional provided it is not unreasonable to the extent that it impedes a party’s access to justice. The question then becomes, when does the condition precedent become unreasonable?
c. When then does it become unreasonable?
70.
In the Supreme Court of Uganda Goodman Agencies Ltd v Attorney & another (Constitutional Application 1 of 2012) [2014] UGSC 124 (03 July 2014) stated as follows:
“
If the Supreme Court were to turn away an appellant who is dissatisfied with a decision of the constitutional court and to strike out a constitutional appeal without hearing its merits merely because the appellant has not deposited further security for costs as was ordered by the court in this case, this would be contrary to not only the spirit, but also the letter of the Constitution, as clearly provided for under article 132(3). Access to the Supreme Court of Uganda, sitting as a final appellate court to determine constitutional appeals or applications, should not depend on how deep a constitutional appellant’s pocket is. Otherwise, it would mean that those who are loaded with cash will have their constitutional appeals heard by this court because they can overcome the financial barriers imposed by an order of the court requiring payment of further security for costs of the other party.”
71.
Equally, the issuance of bail and bond in criminal matters is not a tool that is to be used to punish an accused person who is regarded innocent until proven guilty; but to secure the attendance of an accused person in court. In the same way, security or further security for costs should not be used (a) to discriminate; (b) to punish; (c) to castigate; and (d) as a penal measure against a party in a manner that would deter such a party to pursue its claim as a result of failure to deposit the prerequisite costs. Instead, it should be used as an instrument that ensures that there is a balance of interests between parties in the suit. Any directive by the court that places a barrier on the path to justice obstructs the right to access justice and defeats the purpose to have the dispute determined on its merits. Such an order would be contrary to the spirit and letter of the Constitution.
72.
From the foregoing, reasonability is a matter to be determined on a case to case basis based on judicious parameters embodied elsewhere in this judgment.
73.
Turning to the case at hand, was the order for further costs by the appellate court unreasonable? It is the appellant’s submission that the appellate court failed to balance the parties’ interests because it ordered the appellant to pay Kshs 20,000,000 before the appeal could be heard yet the appellant had already paid Kshs 185,000,000 to the 1st respondent, which amount is the subject of the dispute before court. However, according to the 1st respondent, the appellant has no locus standi as it was wound up and does not exist. What’s more, the appellant’s purported agent, Jasmine See, is a foreign national. It is for this specific reason that an order for security was issued.
74.
The appellate court in awarding further security for costs of Kshs 20,000,000/- was of the preliminary view that the appellant was wound up and in their view its state of affairs placed anxiety on the 1st respondent in its ability to recover costs in the event that the appeal was unsuccessful; Jasmine See’s identity, place of abode, and ability to guarantee the payment of costs remained questionable; the amount in dispute; and the fact that there are other costs that were ordered to be paid in the High Court. The appellate court noted that it was not drawing into the merits of the appeal.
75.
This matter having been filed in October 1998, has been in the corridors of justice for over twenty years. By the time it was being reinstated by the Court of Appeal in 2013, the appellant was already wound up as it is alleged to have been wound up on May 21, 2002. Also, Jasmine See was already the holder of powers of attorney for both the appellant and Lynwood from October 23, 2001. Bearing that in mind, no order for further security for costs was issued at the High Court when it was reinstated and heard on merit in 2013 and the time of the filing of the application for security for costs before the Court of Appeal. Therefore, the status was the same when the matter proceeded to the appellate court on appeal. Secondly, the 1st respondent alleged that Kshs 87,620,000/- was the approximate costs payable at the High Court. However, the same has not been taxed. Thirdly, the sum of Kshs 185,000,000/- which is the subject matter of the suit is already in the possession of the 1st respondent, whether as part payment of debt or as deposit towards purchase price. Lastly, the appellate court did not elaborate how it came up with the figure of Kshs 20,000,000.00 which is one million times above the set nominal amount of Kshs 2,000.00 already paid at the time of filing the appeal.
76.
We are conscious of the fact that the Central Bank of Kenya, the main respondent herein, is an institution established under Article 231 of the Constitution, to which the alleged sum of money the appellant is claiming was deposited. Likewise, we cannot close our eyes to the issue of public interest while endeavouring to give the appellant access to the court system. This is a fundamental aspect of our democracy which is recognized in our Constitution.
77.
Towards that end, it is our finding, that this is a perfect example where an order of security for costs would stifle the proceedings and completely lock out the appellant out of the doors of justice. The Court of Appeal’s order put an end to the appellant’s litigation journey before being heard on merit thereby denying them opportunity to secure their legal rights. We must fault the Court of Appeal’s finding on security for costs in this regard. Of particular interest is paragraph [12] where the court states as follows:
(12)
Having considered all the foregoing guidelines and constitutional underpinnings, we do not wish to be drawn into the merits of the appeal, as that would prejudice or embarrass the Bench that will deal with it save to state that the issues raised regarding the winding up of Westmont which is the appellant and the multiple identities of Jasmin See who is the named agent/attorney are weighty matters in regard to the issue at hand that is security for costs. We do not think this application was brought on the basis that the appellant or its agent were merely impecunious. It is predicated on the fact that Westmont who is the appellant does not exist in law and this being a common ground counsel for CBK submitted quite strongly that in the event the appeal is dismissed, public tax payers’ money will have been expended in pursuing an appeal filed by a phantom. This argument that Westmont was wound up was not discounted by counsel for the appellant, save to state that there was an amendment whereby Westmont was substituted by Lynwood Developers Ltd. Whereas those are matters for merit determination within the appeal itself, our preliminary view of the matter is, this appeal, as it appears in this record of appeal, is filed in the name of Westmont who is the appellant; it is undisputed that Westmont was wound up and in our view this state of affairs lends credence to CBK’s anxiety regarding its ability to recover costs in the event that the appeal was unsuccessful. [Emphasis added]
78.
Despite acknowledging that the substitution and winding up of the appellant and their subsequent substitution by Lynwood Were matters for determination on merit in the pending appeal, the Court of Appeal still proceeded to determine the same itself, an unfortunate embarrassment to the eventual trial bench.
79.
We also take issue with the Court of Appeal’s finding at paragraph 13 where it is stated as follows:
“
(13)
We have also considered the second line of argument that the only disclosed agent/ attorney is one Jasmin See who was given the power of attorney by Westmont to act on its behalf in this matter. In the event that Westmont lacks capacity would the said Jasmin See pay the legal costs? or whose agent is she, who is the appellant or the beneficiary of the appeal proceedings? Unfortunately, those questions were not answered by the appellants as no replying deposition was filed but only grounds of opposition. Going by the information given in the affidavit in support of the application, part of which is reproduced here above, which was not controverted by Westmont, it is obvious to us that Jasmin See’s identity, place of abode, and ability to guarantee the payment of costs remained questionable. It is the way Jasmin See described herself variously in the proceedings and documents before the High Court and the fact that she is a foreigner with two nationalities and multiple passports that brings into question her identity and ability to pay the costs should the appeal be un- successful and she is ordered to pay the costs.”
80.
In the instant application, the burden of proving the appellant’s inability to pay any awardable costs should the appellant fail in their appeal, was on the 1st respondent. However, in the foregoing paragraph, it is obvious to us that the 1st respondent did not discharge their burden of proof that is why, to us, the pertinent questions “In the event that Westmont lacks capacity would the said Jasmin See pay the legal costs? or whose agent is she, who is the appellant or the beneficiary of the appeal proceedings?” remained unanswered. The learned Judges of appeal did not consider the fact that the appellant’s impecuniosity if any, may have been contributed to by the 1st respondent’s action who, if proved, could be holding lien of Kshs 185,000,000/- which the appellant alleges to have deposited to it.
81.
In our view, there ought to be a balance for the two competing rights that is, the right to access to justice and the right to security for costs. Unlike the right for security for costs, the right to access to justice is guaranteed in the Constitution and as demonstrated in article 24 above, can only be limited by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
82.
Borrowing from these constitutional tenets above, it is our view that the grant of the said costs was unreasonable to the extent that it impacted against the appellant’s appeal in the negative and sought to punish it, considering it is allegedly wound up and substitution of the appellant with its principal Lynwood is in contention. With the inability to pay the security for costs, the appellant, despite being entitled to pursue an appeal from the decision of the High Court, no longer had recourse to litigate for the court’s ultimate determination of the issues raised. Resultantly, the order for further security for costs did impede its right to access to justice contrary to articles 48, 50 and 159 of the Constitution as the appeal stood struck out in the failure of the payment of the security for costs as ordered.
83.
We have shown that it is the duty of the court to balance the injustice to the plaintiff pursuing a proper claim. We state that the final result in such a balance must be reasonable and modest. An order for additional security must neither impede access to justice nor stifle genuine claims and most definitely must not be oppressive. A court is not bound to make an order of a substantial amount. It is paramount that the order be just and not impede access to justice.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/11/eng@2023-02-17
Petition 11 of 2020,JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) (Petition 11 of 2020) [2023] KESC 4 (KLR) (Family) (27 January 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",27 January 2023,2023.0,Nairobi,Civil,JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another,[2023] KESC 4 (KLR),,"Brief facts
The appellant and respondent’s union was formalized under the repealed Marriage Act. The appellant and the respondent later moved into their matrimonial home located at Tassia Estate within Embakasi in Nairobi. The respondent claimed that the appellant and herself proceeded to construct rental units on the property. The respondent added that during the construction of the rental units, she successfully applied for a loan of Kshs 200,000 which she gave to the appellant to enable him to complete the construction of the units. The respondent further claimed that, during the subsistence of their marriage, the appellant proceeded to acquire more assets. 
In 2008, the marriage irrevocably broke down and the appellant applied for its dissolution. A decree absolute was subsequently issued on October 15, 2015. It was the irrevocable breakdown of the marriage that led to the respondent commencing the division of matrimonial property proceedings at the High Court. The court found that the only property that amounted to matrimonial property was the matrimonial property located at Tassia Estate. The court also held that the respondent had failed to prove her case on the claim that she directly contributed to the acquisition of that property which was registered in the appellant’s name. The court however recognized that the respondent made an indirect non-monetary contribution towards the family’s welfare in the form of upkeep and welfare. The court for that reason proceeded to award the respondent 30% of the share in the matrimonial property and a 20% share of the rental units constructed within that property. 
Aggrieved by the decision of the High Court, the respondent filed an appeal at the Court of Appeal while the appellant filed a cross-appeal. The Court of Appeal found that the respondent, having been married to the appellant for 18 years, 15 years of which were spent in gainful employment, constantly took loans and helped acquire the matrimonial home jointly with the appellant. The court also found that the respondent thus acquired a beneficial interest in the matrimonial property and further that, the High Court erred in awarding the respondent a 30% share of the house and a 20% share in the rental units. The Court of Appeal proceeded to set aside the High Court’s findings and ordered that the matrimonial property and the rental units built were to be shared equally between the appellant and respondent at the ratio of 50:50.
Dissatisfied by the Court of Appeal judgment, the appellant filed the instant appeal.","F. Orders
110.
Flowing from above, the final orders are:
i.
The petition of appeal dated and filed on July 3, 2020 is hereby dismissed.
ii.
The appellant shall bear the respondents’ costs.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/4/eng@2023-01-27
Petition (Application) 34 (E035) of 2022,Kampala International University v Housing Finance Company Limited (Petition (Application) 34 (E035) of 2022) [2023] KESC 5 (KLR) (27 January 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",1/27/2023,2023.0,Nairobi,Civil,Kampala International University v Housing Finance Company Limited,[2023] KESC 5 (KLR),,"Brief facts
The applicant received an adverse arbitral award for the statutory sale of its properties valued at USD. 12,767,508.33 by the respondent. Aggrieved the applicant unsuccessfully contested the arbitral award at the High Court.
Further aggrieved the applicant filed an appeal before the Court of Appeal where It was contended that the High Court dismissed the contest without affording the applicant an opportunity to highlight its submissions. The appellate court dismissed the appeal which led to the instant application before the Supreme Court.
 Further aggrieved at the Court of Appeal decision, the applicant filed the instant appeal/application in which it sought conservatory orders staying the arbitral award pending the hearing and determination of the instant appeal. The applicant contended that the Court of Appeal failed to consider the questions relating to the right to be heard, denying the applicant the right of access to justice; that the appellate court prematurely embarked on evaluation of material evidence. It also contended that should the arbitral award be executed, the loss of USD. 12, 767, 508.33 was irreparable. 
 The applicant hinged its appeal on the question of interpretation or application of the Constitution on grounds, inter alia, that its right to fair hearing as envisaged under the Constitution 2010 was hindered when at the High Court it was not given an opportunity to highlight its submissions, which right was not addressed by the Court of Appeal. There is also contention on whether the court has jurisdiction
The respondent filed a preliminary objection in which it contended that the Supreme Court lacked jurisdiction in the instant matter as the ruling of the Court of Appeal did not involve the interpretation or application of the Constitution, neither was the appeal certified as a matter of general public importance. That the only issue that was for consideration by the Court of Appeal was whether the applicant had met the threshold  for leave to appeal against the decision of the High Court on setting aside an arbitral award under Section 35 of the Arbitration Act.","8.
We now opine as follows:
a)
on arguability of the appeal, we enunciated in Tanad Transporters Limited & 2 others v Laiser Communications Limited & 2 others, SC Petition No 7 (E009) of 2022 and George Boniface Mbugua v Mohammed Jawayd Iqbal (Personal representative of the Estate of the late Ghulam Rasool Jammohamed) SC Misc. Application No. 7 (E011) of 2021 [2021] eKLR that this question does not call for the interrogation of the merit of the appeal and the court, at this stage, must not make any definitive findings of either fact or law. An arguable appeal is not one which necessarily must succeed but one which ought to be argued fully by the court. The applicant hinges his appeal on the question of interpretation or application of the Constitution on grounds, inter alia, that its right to fair hearing as envisaged under the Constitution 2010 was hindered when at the High Court it was not given an opportunity to highlight its submissions, which right was not addressed by the Court of Appeal. There is also contention on whether the court has jurisdiction in light of its previous decisions in Nyutu Agrovet Limited v Airtel Networks Kenya (supra), Synergy Industrial Credit v Cape Holdings Limited (supra) and Geo Chem Middle East v Kenya Bureau of Standards (supra), it is our view that the appeal is arguable.
b)
On the nugatory aspect, the concern is whether what is sought to be stayed if allowed to happen is reversible. The respondent seeks to recover USD 12, 767, 508.33 through the statutory power of sale of properties known as Kajiado/Kaputiei North/1209, Kajiado/Kaputiei North/1210 and Kajiado/Kaputiei North/1211. The amount in contention is considerably large and there is imminent danger on the applicant being evicted from the said properties as a result of the impugned ruling by the Court of Appeal. Bearing that in mind, we are of the view that this would occasion irreparable harm upon the applicant.
c)
Lastly, on public interest, we believe that there is sufficient public interest element in the appeal as it touches on an inalienable right, that is the right to a fair trial as stipulated under article 25 of the Constitution, the applicability of the doctrine of stare decisis and the exercise of jurisdiction by the various institutions ranging from the arbitrator, the High Court and the Court of Appeal in the dispensation of justice.
9 .
Consequently, for reasons aforesaid, we make the following orders:
(i)
The notice of motion application dated November 16, 2022 and filed on November 22, 2022 be and is hereby allowed to the extent that conservatory orders of injunction restraining the respondent whether by themselves, servants, agents, or any other person claiming under them from in any way alienating or selling the parcels of land known as Kajiado/Kaputiei North/1209, Kajiado/Kaputiei North/1210 and Kajiado/Kaputiei North/1211 in exercise of statutory power of sale and/or enforcement of the final arbitral award made and published by the arbitrator, Hon Mr Collins Namachanja on the September 27, 2019 pending the hearing and determination of this appeal;
(ii)
Costs of the application shall abide the outcome of the appeal.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/5/eng@2023-01-27
Petition 9 of 2021,MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) (27 January 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",1/27/2023,2023.0,Nairobi,Civil,MNK v POM; Initiative for Strategic Litigation in Africa,[2023] KESC 2 (KLR),,"Brief facts
The respondent instituted Nairobi High Court Civil Suit No 6 of 2012, POM vs MNK, by way of an originating summons dated November 5, 2013, against the appellant whom he claimed to be his wife. The respondent invoked the provisions of section 17 of the repealed Married Women's Property Act, 1882 (MWPA) on the claim for division of matrimonial property. The respondent contended that he and the appellant began to cohabit as husband and wife sometime in 1986. It was his case that from joint savings, they purchased the suit property. He asserted that he belonged to the Kisii tribe and that the seller who belonged to the Kikuyu tribe was not comfortable selling the parcel of land to a non-Kikuyu therefore, the parties resolved to have the property registered in the appellant’s name although they had both contributed to its acquisition.
The High Court dismissed the suit and found that although there was long cohabitation between the parties, the principle of presumption of marriage, was inapplicable under the circumstances seeing that the appellant was already married to KM. The court held that the appellant could not marry the respondent, that the relationship between the parties was adulterous and the resulting cohabitation could not be deemed a marriage. In the absence of a marriage, the court held that the respondent could not rely on the provisions of MWPA (repealed) whose reliefs were based on proof of marriage.
Dissatisfied, the respondent approached the Court of Appeal which held that the High Court erred in finding that there was long cohabitation but declined to presume marriage because of a one KM, whose existence the Court of Appeal found was not proved. The appellate court presumed the existence of a marriage and allowed the appeal, and ordered the suit property to be divided into two halves, a share for each party. 
Aggrieved the appellant filed the instant appeal. The appellant argued that parties to a marriage must have the capacity to enter into a marriage and that she did not have the requisite capacity for the relationship between her and the respondent to be presumed a marriage as she was married to KM and had three children out of that relationship. The appellant also argued that a long-term relationship that resembled a marriage was not a marriage. The appellant further argued that she solely contributed to the acquisition of the suit property. ","E. Analysis and Determination
29.
Before delving into the issues as framed by this court, we note from the record that the cause of action in this matter arose in 2011 and the matter was filed in 2012 before the enactment of the Marriage Act, 2014, and Matrimonial Property Act, 2013. This court in the case of Samuel Kamau Macharia & Ano v Kenya Commercial Bank Ltd & 2 Others SC Application No 2 of 2011[2012] eKLR we held as follows regarding retrospective application of legislation:
“
As for non-criminal legislation, the general rule is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or evidence are prima facie prospective, and retrospective effect is not to be given to them unless by express words or necessary implication it appears that this was the intention of the legislature.” [emphasis added]
30.
Flowing from the above, it is our considered view that the Marriage Act, 2014 and Matrimonial Property Act No 49 of 2013 are not applicable in this matter as the cause of action arose before the said statutes were enacted into law and cannot be applied retrospectively. We now turn to the issues as framed.
(i) Whether parties to a union arising out of cohabitation and/or in a marriage unrecognized by law can file proceedings under the Married Women's Property Act (repealed)?
31.
While it is the appellant’s case that the existence of a marriage recognized in law remains the central status that grants a party locus standi under section 17 of MWPA (repealed), the respondent contends that the correct interpretation of the term marriage in the MWPA (repealed) should be that it applies to all marriages recognized or unrecognized in law.
32.
In that context, the MWPA (repealed) was enacted in England in 1882. It found its way into the Kenyan legal regime when it was inherited as a statute of general application pursuant to the Judicature Act. This made the MWPA (repealed) applicable in Kenya but that was until January 16, 2014 when our own statute, the Matrimonial Property Act, 2013 (MPA) commenced. However, as earlier stated we will not delve into the MPA.
33.
The MWPA (repealed) reads that it is “An act to consolidate and amend the acts relating to the property of married women.” Lord Morris of Borthy-Guest in Pettit v Pettit [1970] AC 777 stated:
‘One of the main purposes of the act of 1882 was to make it fully possible for the property rights of the parties to a marriage to be kept separate.’
34.
Section 17 of the MWPA (repealed) states as follows;
‘In any question between husband and wife as to the title to or possession of property, either party ……… may apply by summons or otherwise in a summary way to any judge of the High Court of justice ……and the judge ….. may make such order with respect to the property in dispute, and to the costs of and consequent on the application as he thinks fit.’
35.
Accordingly, and in answer to the question posed above, it is clear to us that the MWPA (repealed) applied only to ‘parties to a marriage; husband and wife.’ It is worth noting from the onset that the MWPA (repealed) only refers to ‘parties to a marriage’ and ‘married women’. It does not go into details as to how the marriage came to be or how it was contracted. To our minds therefore, we are of the view that parties to a union arising out of cohabitation and/or in a marriage unrecognized by law could file proceedings under the MWPA (repealed) upon the basis that the MWPA (repealed) does not distinguish between marriages recognized or unrecognized in law. In other words, the MWPA (repealed) applies to all marriages recognized or unrecognized in law. The question that then arises in the matter before us, is whether or not, the parties to this dispute were married.
36.
The appellate court in this matter had determined that ‘the appellant was, by presumption married to the respondent.’ It is this determination that falls to us for examination. Presumption of marriage is a well-settled common law principle that long cohabitation of a man and woman with a general reputation as husband and wife raises a presumption that the parties have contracted marriage. However, a presumption of marriage is a rebuttable presumption and can disappear in the face of proof that no marriage existed.
37.
According to Halsbury’s Laws of England, Matrimonial and Civil Partnership Law (Volume 72) 5th Edition 2015:
“
Where a man and a woman have cohabited for such a length of time, in such circumstances, as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed even if there is no prior evidence of any marriage ceremony having taken place, particularly where the relevant facts have occurred outside the jurisdiction and this presumption can be rebutted only by strong and weighty evidence to the contrary.”
38.
Similarly, Bromley Family Law 5th Edition provides that:
“
If a man and woman cohabit and hold themselves out as husband and wife, this in itself raises a presumption that they are legally married.”
39.
Section 119 of the Evidence Act, cap 80 Laws of Kenya is also instructive. It provides as follows:
“
The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
40.
From the foregoing, courts are permitted to make a prima facie legal inference that certain facts exist without proof, regard being taken to the common course of natural events and human conduct, in relation to the facts of a particular case.
41.
The presumption of marriage was first applied in Kenya in Hortensia Wanjiku Yawe v The Public Trustee Nairobi [1976] eKLR. The principles distilled from this former Court of Appeal (Wambuzi P, Mustafa VP and Musoke JA) for East Africa decision were outlined in Mary Njoki v John Kinyanjui Mutheru & 3 Others, (Mary Njoki) [1985] eKLR by Kneller JA as follows:
i.
The onus of proving customary law marriage is generally on the party who claims it;
ii.
The standard of proof is the usual one for a civil action, namely, ‘on the balance of probabilities;
iii.
Evidence as to the formalities required for a customary law marriage must be proved to that standard; (Mwagiru v Mumbi, [1967] EA 639, 642)
iv.
Long cohabitation as a man and a wife gives rise to a presumption of marriage in favour of the party asserting it;
v.
Only cogent evidence to the contrary can rebut the presumption (Toplin Watson v Tate [1937] 3 All ER 105
vi.
If specific ceremonies and rituals are not fully accomplished this does not invalidate such a marriage. (Sastry Veliader Aronegary v Sembecutty Vaigalie (1880-1) 6 AC 364; Shepherd George v Thye, [1904] 1 Ch 456)
42.
The judge went on to state:
“
Cohabitation and repute do not always constitute a marriage. They can be part of a mode of proving one in that they are substituted for some missing element or elements. One of the earliest put it this way. Cohabitation, with habit and repute, in the absence of countervailing proof to the contrary, establish a marriage on the ground that the cohabitation as husband and wife is proof that the parties have consented to contract that relationship.” [Emphasis ours]
43.
Nyarangi JA in the same judgment delivered himself as follows;
“
In my judgment, before a presumption of marriage can arise, a party needs to establish long cohabitation and acts showing general repute. If the woman bears a child or better still children, so that the man could not be heard to say that he is not the father of the children, that would be a factor very much in favour of presumption of marriage. Also, if say, the two acquired valuable property together and consequently had jointly to repay a loan over a long period, that would be just what a husband and wife do and so it would be unreasonable to regard the particular man and woman differently. Performance of some ceremony of marriage would be strong evidence of the general repute that the parties are married. To sum it, there has to be evidence that the long cohabitation is not close friendship between a man and woman, that she is not a concubine but that the cohabitation has crystallized into a marriage and that it is safe to presume that there is marraige. To my mind, these features are all too apparent in the Yawe and in Mbiti (supra). To my mind, presumption of marriage, being an assumption does not require proof, of an attempt to go through a form of marriage known to law.”
44.
Our courts have subsequently applied the doctrine of presumption of marriage in several cases. In Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another [2009] eKLR the Court of Appeal stated as follows:
“
Before presumption of marriage can arise a party a needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere friendship or that the woman is ot a mere concubine that the long cohabitation has crystallized into a marriage and it is safe to presume the existence of a marriage. We are of the view that since the presumption is in the nature of an assumption it is not imperative that certain customary rites be performed.
45.
In Mary Wanjiku Githatu v Esther Wanjiru Kiarie [2010] eKLR Bosire JA held as follows:
“
The existence or otherwise of a marriage is a question of fact. Likewise, whether a marriage can be presumed is a question of fact. It is not dependent on any system of law except where by reason of a written law it is excluded. For instance, a marriage cannot be presumed in favour of any party in a relationship in which one of them is married under statute. However, in circumstances where parties do not lack capacity to marry, a marriage may be presumed if the facts and circumstances show the parties by along cohabitation or other circumstances evinced an intention of living together as husband and wife.”
46.
More recently, Ngaah J, in CWN v DK[2021] eKLR was of the view that;
“
as far as presumption of marriage is concerned, it is a status of relationship that turns much on evidence as much as it is a presumption of law.”
47.
Bearing in mind the above case law, did the instant relationship possess the constitutive elements of presumption of marriage, that is, long cohabitation and repute of marriage absent cogent evidence to the contrary? In other words, is it safe in the circumstances of this case to presume a marriage?
48.
The appellant argued that parties to a marriage must have the capacity to enter into a marriage and that she did not have the requisite capacity for the relationship between her and the respondent to be presumed a marriage as she was married to KM and had three children out of that relationship. The appellant further contended that she was married to KM in the 1980s, therefore, she did not have the capacity to enter into another marriage with the respondent, and that lack of capacity, consent, and intention to marry rebuts any presumption of marriage. This was interrogated by the High Court and the learned judge found as follows at paragraphs 26 and 27:
“
26.
I note that the plaintiff sued the defendant as MNK. Indeed, in all the other suits between the parties hereto, that is to say Milimani CMCCC No 4364 of 2011 and Milimani CMCCC No 454 of 2011, she is referred to as such. It would appear to me that that is her official name; it is the one appearing in her national identity card serial number[xxxx]. There is also material, procured by the plaintiff, indicating that her father was called M W. That then should raise the question as to where she could have gotten the surname K from. I feel inclined to agree with the defendant, and to conclude that she had contracted marriage with the said KM which led to her adopting his name as part of her name.”
27.
“…..It is a cardinal principle of the civil process that he who alleges must prove. It is the plaintiff who came to court claiming that the defendant was his wife; it was therefore incumbent upon him to prove that assertion. When the defendant countered the claim by asserting that she was a spouse of a KM, the plaintiff ought to have sought to disprove that,especially given that the defendant had the K name as her surname, yet that could not possibly have been her maiden surname. He failed to adduce any evidence to disprove the defendant’s assertions that she had no capacity to marry him at the time. I will therefore find that the marriage between the defendant and KM was not terminated until 2011 when he was alleged to have died. That would then mean that the defendant had no capacity at the time to marry the plaintiff. It is a notorious fact that polyandry is not practiced in Kenya, whether under statute or customary law. The relationship between the parties hereto was no doubt adulterous, and the resulting cohabitation could not be deemed to have brought forth a marriage.”
49.
The Court of Appeal on the other hand determined as follows;
“
The learned judge placed much weight on the appearance of the name “K” on MNP’s identity card and drew the conclusion without evidence being led, that the name appeared because she was married to him. In fact, it would seem that beyond that fact, no other cogent evidence existed as to the said marriage. We are not ourselves prepared to accept as correct a proposition that the appearance of a name on the identity card of a woman, without more, proves that the owner of that name, whoever he be, is the woman’s husband. It is also troubling that the issue of the appearance of that name in the identity card did not feature in MNP’s testimony so that the determinative conclusion the learned Judge reached was not preceded by any jural testing and was founded on the learned judge’s own untested theorizing or extrapolation.
50.
Case law guides us on the issue of capacity. In Machani v Vernoor [1985] KLR 859, the Court of Appeal held that:
“
The presumption covers two aspects, that the parties must have capacity to enter into a marriage and that they did so in effect. During the continuance of a previous marriage, the already married party would have no capacity to enter into the new marriage, and the new marriage would be null until the previous marriage had been brought to an end by a final decree or divorce.”
51.
Indian case law is also persuasive on the issue of capacity. The Supreme Court of India in Gokal Chand v Parvin Kumari AIR 1952 SC 231 held that continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is a rebuttable one and if there are circumstances which weaken and destroy that presumption, the court cannot ignore them. Polygamy, that is, a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage.
52.
In Indra Sarma v VKV Sarma (2013) 15 SCC 755 the Supreme Court of India held that:
“
There is no necessity to rebut the presumption since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. Long standing nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of section 2(f) of the DV Act, which is restrictive and exhaustive.”
53.
On analysis and guided by the record, we are unconvinced that the appellant had capacity to contract a marriage with the respondent. Before the High Court,the appellant urged that her father gave her the name ‘P’ upon her baptism in 1979. She produced her baptism card before the court and also averred that she added the name ‘P’ on the suit property because she was having a dispute with her now deceased husband. She urged that although she had other properties, the suit property was the only one with the name “P.’
54.
It is also not disputed that her father was MW and his name did not appear in her identity document. We find that the Court of Appeal disregarded the appellant’s evidence regarding her name and the reasons for use of the name ‘P’ and ‘K.’ Without the benefit of having sight of the baptism card produced during the hearing, we have perused the record and find that the respondent did not controvert the production of the baptism card.
55.
Furthermore, the appellant claimed she was married to ‘KM’. Her evidence was her identity card, her official national identification document which bears this name. We find that by parity of reason, the learned High Court judge was well within his bounds to determine that K was her husband’s name bearing in mind that Kenyan adult women have their father’s or husband’s names as their surnames in their official identification cards. We also find that the appellate court, inclined to disbelieve the appellant, did not thoroughly interrogate this issue. In our considered view, the appellant has sufficiently proved that her name is MNK and the name K is attributable to the deceased man ‘KM’.
56.
The appellant also argued that a long-term relationship that resembles a marriage is not a marriage, and the person who alleges the existence of such a marriage must prove it.
57.
On the issue of long cohabitation, the High Court held at paragraph 21 & 22 as follows:
“
So what do I make of the material that was placed before me with regard to the alleged relationship between the plaintiff and the defendant? From the documents annexed to the affidavits to the parties and the oral testimonies of the witnesses called by both sides, I am satisfied that the plaintiff and the defendant were indeed living together on a plot within Dagoretti/Riruta/xxx. It would appear that some people might have at that time considered them to be husband and wife, going by the oral testimonies and the documents, particularly the minutes of the meetings held with respect to the issues concerning the subdivision and excision of the plots from Dagoretti/Riruta/xxx.
22.
What should be of concern is whether that cohabitation could lead to a presumption that the two parties had between them a marriage… From the material placed before me, I would be persuaded that there was a long cohabitation of the parties, from 1986 according to the plaintiff and 1992 or thereabout from the other witness, terminating in 2011 or 2012 when the plaintiff was allegedly locked out of the premises by the defendant. There is also material to suggest that there was a general repute within that period that the two were a married couple.”
58.
From the evidence on record, we agree with both the High Court and the Court of Appeal that there was long cohabitation between the appellant and the respondent. However, did the long cohabitation and repute as husband and wife raise a presumption of marriage?
59.
The first issue to note here is that from the record, it is evident that when the respondent filed the suit in the High Court, he was not claiming to be the husband of the appellant. The issue of the presumption of marriage through long cohabitation was not specifically pleaded. Indeed, it was only during the proceedings that the respondent asserted that they were married by repute. This assertion was vehemently denied by the appellant and she claimed that she was married to another man and known by his name. We have already made a finding on this issue and will say no more on it.
60.
In addition, is trite law that he who alleges the existence of certain facts must prove its existence. Accordingly, section 109 of the Evidence Act provides:
“
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.”
61.
The respondent, having claimed that he was married to the appellant, ought to have adduced cogent evidence to prove the marriage. However, in his own testimony in the record, he had a first wife and the appellant was allegedly his second wife. He also confirmed that he had not paid dowry for the appellant. We are therefore not convinced that his cohabitation with the appellant was sufficient to prove his marriage to the appellant.
62.
We are thus in sync with the High Court that the respondent did not controvert the evidence by the appellant that she was married to KM until 2011 when he died. In this regard, she only had the capacity to marry from 2011. This evidence was in the form of her identity card. This was not disproved by the respondent. As such, we are of the view that the appellant’s evidence that she was married to KM under Kikuyu customary marriage was uncontroverted.
63.
Uncontroverted evidence is weighty and courts will rely on it to prove facts in dispute. Considering the facts as pleaded and the evidence as tendered in this matter, in particular the existence of the first marriage and failure by the respondent to prove the presumption of marriage and/or controvert the appellant’s evidence, we must return a finding that this is not one of the safe instances where a court can rightly presume a marriage. We must respectfully find, which we do, that the appellate court erred in presuming a marriage between the parties. We agree with the High Court that the relationship between the parties and the resulting cohabitation cannot be deemed to have brought forth a marriage. Consequently, a presumption of marriage cannot apply in the instant case.
64.
We find it prudent at this juncture to lay out the strict parameters within which a presumption of marriage can be made:
1.
The parties must have lived together for a long period of time.
2.
The parties must have the legal right or capacity to marry.
3.
The parties must have intended to marry.
4.
There must be consent by both parties.
5.
The parties must have held themselves out to the outside world as being a married couple.
6.
The onus of proving the presumption is on the party who alleges it.
7.
The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.
8.
The standard of proof is on a balance of probabilities.
65.
The above notwithstanding, we are of the view, that the doctrine of presumption of marriage is on its deathbed of which reasoning is reinforced by the changes to the matrimonial laws in Kenya. As such, this presumption should only be used sparingly where there is cogent evidence to buttress it.
66.
In the same breath, we would be remiss if we did not point out that marriage is an institution that has traditional, religious, economic, social and cultural meaning for many Kenyans. However, it is becoming increasingly common for two consenting adults to live together for long durations where these two adults have neither the desire, wish nor intention to be within the confines of matrimony. This court recognizes that there exists relationships where couples cohabit with no intention whatsoever of contracting a marriage. In such contexts, such couples may choose to have an interdependent relationship outside marriage. While some may find this amoral or incredible, it is a reality of the times we live in today.
67.
For instance, a person may have been in a marriage before and the marriage is no more due to death of a spouse or divorce. Due to their prior experiences, such persons may choose to have an interdependent relationship outside of marriage. For others, it may just be their desire never to marry but have a partner without the confines of marriage. Where such situation is evident and there is no intention whatsoever of contracting a marriage, the presumption of marriage must never be made where this intention does not exist. It must always be remembered that marriage is a voluntary union. As such, courts should shy away from imposing ‘marriage’ on unwilling persons.
68.
In addition, in our ever-changing society, current statistics reveal that a man and a woman can choose to cohabit with the express intention that their cohabitation does not constitute a marriage. The pervasiveness of having interdependent relationships outside marriage over the past few decades means that no inferences about marital status can be drawn from living under the same roof. ‘Interdependent relationships outside marriage’ is not a new concept.
69.
In Alberta, Canada, since 2003, adult interdependent relationships have been recognized and protected through the Adult Interdependent Relationships Act. This creates a specific type of relationship, called an adult interdependent relationship (“AIR”). This term is used in place of the ‘common law relationship’. The act gives rights and obligations to couples in qualifying long-term relationships. In this regard, perhaps, it is time for the National Assembly and the Senate, in collaboration with the Attorney-General to formulate and enact statute law that deals with cohabitees in long-term relationships; their rights, and obligations.
70.
To conclude on this issue, we find that the circumstances in which presumption of marriage can be upheld are limited. In other words, a presumption of a marriage is the exception rather than the rule.
ii) What relief is available to the present parties?
71.
Since the presumption of marriage does not exist in this case, is the respondent entitled to a share of the suit property?
72.
Although the respondent urges that at all material times, the two parties contributed to its acquisition and development of the suit property, on analysis of the evidence before the High Court, the appellant’s and respondent’s financial contribution in purchasing and developing the property was not ascertained.
73.
The Court of Appeal in evaluating the proprietary rights relating to the ownership of the suit property together with the developments thereon held that the respondent had jointly contributed to the acquisition, building and development thereon and awarded each of the parties a 50% share.
74.
We now turn to the history of how the suit property was purchased. From the record, the respondent alleged that the suit property was the subject of a succession matter which upon conclusion was available for transfer but not to someone who was not ‘Kikuyu’. The respondent averred that the purchase price was Kshs 250,000.00 and they jointly contributed Kshs 200,000.00 and obtained financing of Kshs 100,000.00 from the appellant’s sister one EN. Upon cross-examination, the respondent averred that he contributed Kshs 60,000.00. That after the sale, the property was registered under the name MKP. The respondent urged that the utility bills were registered in his name. It is not in dispute that rental rooms were developed on the property and that the respondent operated a bar and butchery business on the premises. The respondent urged that the tenancy agreements were registered in his name as the landlord and that he collected rent which was utilized for his upkeep together with the appellant.
75.
The appellant urged before the High Court that she solely contributed to the acquisition of the suit property. She confirmed that although she had other properties it is only the suit property where she added the name P to her name for registration purposes. The appellant urged that she had allocated the respondent a shop to operate his business and had also appointed him as an agent for purposes of rent collection.
76.
The learned judge of the High Court downed his tools on determination of proprietary rights after making a finding that no marriage could be presumed. The Court of Appeal on the other hand made a finding that the High Court erred in failing to make a finding regarding the proprietary rights of the parties and proceeded to make a determination on the legal issue which was the gravamen of the suit filed. We agree with the learned judges that it was crucial to make a finding on the parties’ proprietary rights, whatever the nature of the relationship.
77.
Wheareas the appellate court in evaluating the evidence made a finding that the purchase and development of the property was a joint effort and proceeded to apportion a 50% share to each party. The court further held that the true purchaser was the respondent but due to prevailing circumstances regarding tribe, the property was registered in the appellant’s name. We disagree as we find there is insufficient evidence on record to make this finding.
78.
On our part, on evaluating the evidence, we are convinced that the two parties contributed to the acquisition and development of the suit property which led to their proprietary rights. These proprietary rights arose out of a constructive trust. The Black’s Law Dictionary 9th Edition at pg 1649 defines a constructive trust as “the right, enforceable solely in equity, to the beneficial enjoyment of property which another person holds the legal title.”
79.
England and Wales Court of Appeal’s Lord Justice Browne in Eves v Eves [1975] 1 WLR 1338 quoted with approval the decision in Cooke v Heard [1972] WLR 518 where it was held;
“
... whenever two parties by their joint efforts acquire property to be used for their joint benefit, the courts may impose or impute a constructive or resulting trust. The legal owner is bound to hold the property in trust for them both. This trust does not need any writing. It can be enforced by an order for sale, but in a proper case the sale can be postponed indefinitely. It applies to husband and wife, to engaged couples, and to man and mistress, and maybe to other relationships too.”
80.
Likewise, we are persuaded by the decision of the Supreme Court of Queensland in Barker v Linklater & Another [2007] QCA 363 quoted with Baumgartner v Baumgartner [1987] 164 CLR 137 where the court held:
“
Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant’s assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent.’
81.
According to Bromley’s Family Law 10th Edition, disputes between cohabitants or former cohabitants over ownership, occupation, or use of the property must be resolved, generally speaking by applying ordinary legal rules applicable to strangers. This is due to the fact that legislation that enables courts to allocate or reallocate beneficial interests in the assets following a divorce does not apply to cohabiting couples.
82.
Kenya, just like many other countries, does not have laws to protect parties to cohabitation in case of a dispute relating to property acquired during the subsistence of such cohabitation. However, the issue of cohabiting couples’ property has increasingly become a social problem due to the high number of people resorting to cohabitation and in the process of acquiring properties, upon separation there is no legislation governing the division of property.
83.
While we acknowledge the difficulties of resolving such disputes, a laissez fair approach can result in injustice for parties to a relationship who might be more vulnerable or who contribute less in financial terms than their partners. Conversely, we do note that the interventionist approach risks creating uncertainty, and attaching a monetary value to the party’s actions within this type of relationship is often highly complex as is in the present case.
84.
The difficulty was aptly captured in Walker v Hall [1984] FLR 126 where Lord Lawton observed as follows:
“
During the past two decades the courts have had to consider on a number of occasions the division of property between men and women living together without being married……. courts have been able to make an equitable division of property between spouses when a marriage breaks down and a decree of divorce is pronounced. No such jurisdiction exists when the cohabitees are unmarried. When such a relationship comes to an end, just as with many divorced couples, there are likely to be disputes about the distribution of shared property. How are such disputes to be decided? They cannot be decided in the same way as similar disputes are decided when there has been a divorce. The courts have no jurisdiction to do so. They have to be decided in accordance with the law relating to property… There is no special law relating to property shared by cohabitees any more than there is any special law relating to property used in common by partners or members of a club. The principles of law to be applied are clear, though sometimes their application to particular facts are difficult. In circumstances such as arose in this case the appropriate law is that of resulting trusts. If there is a resulting trust (and there was one in this case) the beneficiaries acquire by operation of law interests in the trust property. An interest in property which is the consequence of a legal process must be identifiable. It must be more than expectations which at some later date require to be valued by a court…”
85.
In England, courts have long recognized that common intention of the parties at the time of purchase is sufficient to give rise to a constructive trust, which can be inferred from conduct other than making financial contributions to cohabitees.
86.
In defining constructive trusts, the Court of Appeal in the case of Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR the court held that;
“
In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing . … It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such aswould demand the equity treats the legal. owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit _ (see Halsbury’s Laws of England supra at para 1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment ."" [emphasis added]
87.
We however note that even though constructive trust is premised on section 38 of the Land Act, 2012 the same has not been applied in solving disputes relating to cohabitees.
88.
In the case of Elayne Marian Teresa Oxley v Allan George Hiscock [2004] EWCA 546 the Court of Appeal of England and Wales quoted with approval Lord Diplock in Gissing v Gissing [1971] AC 886 where the guidelines to consider when interrogating constructive trust were laid down as follows:
“
. . . the first deals with the nature of the substantive right; the second with the proof of the existence of that right; the third with the quantification of that right.
1.
The nature of the substantive right
If the legal estate in the joint home is vested in only one of the parties ('the legal owner') the other party ('the claimant'), in order to establish a beneficial interest, has to establish a constructive trust by showing that it would be inequitable for the legal owner to claim sole beneficial ownership. This requires two matters to be demonstrated: (a) that there was a common intention that both should have a beneficial interest; and (b) that the claimant has acted to his or her detriment on the basis of that common intention.
2.
The proof of the common intention
a.
Direct evidence , it is clear that mere agreement between the parties that both are to have beneficial interests is sufficient to prove the necessary common intention. Other passages in the speech point to the admissibility and relevance of other possible forms of direct evidence of such intention.
b.
Inferred common intention , Lord Diplock points out that, even where parties have not used express words to communicate their intention (and therefore there is no direct evidence), the court can infer from their actions an intention that they shall both have an interest in the house. This part of his speech concentrates on the types of evidence from which the courts are most often asked to infer such intention, viz contributions (direct and indirect) to the deposit, the mortgage instalments or general housekeeping expenses. In this section of the speech, he analyses what types of expenditure are capable of constituting evidence of such common intention: he does not say that if the intention is proved in some other way such contributions are essential to establish the trust.
3.
The quantification of the right
Once it has been established that the parties had a common intention that both should have a beneficial interest and that the claimant has acted to his detriment, the question may still remain 'what is the extent of the claimant's beneficial interest?' This last section of Lord Diplock's speech shows that here again the direct and indirect contributions made by the parties to the cost of acquisition may be crucially important.” [emphasis added]
89.
The court further observed as follows:
“
I have referred, in the immediately preceding paragraphs, to ""cases of this nature"". By that, I mean cases in which the common features are: (i) the property is bought as a home for a couple who, although not married, intend to live together as man and wife; (ii) each of them makes some financial contribution to the purchase; (iii) the property is purchased in the sole name of one of them; and (iv) there is no express declaration of trust .” [emphasis added]
90.
Applying the above guidelines we reiterate that common intention of the parties at the time of purchase of the suit property gave rise to a constructive trust between the appellant and the respondent. From the evidence on record that the appellant and respondent had been cohabiting since 1986 and that in 1991 the suit property was bought by the two parties and registered in the name of the appellant. The respondent was present during the drafting and signing of the sale agreement and was in fact a witness. The parties lived in one of the rooms from 1993 and ploughed the proceeds of rent to construct more rental units. It was proved that the meters were in his name and operated a bar on the same premises. In these circumstances, we conclude that there was a common intention for the appellant and respondent to have beneficial interests in the suit property.
91.
However, in 2011 when the parties herein separated the appellant evicted the respondent from the matrimonial home and from the business premises contrary to the common intention, they had at the time of purchasing the property. Thereby, unjustly enriching herself with a property meant to be of benefit to her and the respondent.
92.
It is in evidence that the respondent paid for the water and electricity connection charges and bills from when the property was constructed to 2011 when he was evicted from the property and that jointly the parties have made several improvements on the suit property. It is, therefore, our finding that the common intention can be inferred from the appellant and respondent’s conduct during the existence of their relationship.
93.
Having established that there was a common intention and that both the appellant and the respondent should have a beneficial interest in the property, it follows that we need to proceed and quantify the beneficial interest to the parties.
94.
In assessing the beneficial interests due to the parties, we cannot only be primarily focused on the direct financial contribution to the acquisition of the property but also interrogate other forms of contribution such as actions of the parties in maintaining and improving such properties.
95.
The record shows that the appellant and the respondent jointly contributed to the acquisition and the construction of the suit property and the two jointly invested in the property for more than 20 years. Therefore, we are of the view that the respondent did prove his case on a balance of probabilities that the suit property was acquired and developed through joint efforts and/or contribution of the parties. We therefore make a finding that the share of the parties is apportioned as 70% for the appellant and 30% for the respondent based on their respective contributions.
96.
This being a matter of public interest, each party shall bear their own costs.
E. Orders
97.
Having considered the issues delineated by this court for determination, the final orders are as follows:
a.
The appeal dated August 12, 2021 partially succeeds.
b.
A presumption of marriage between the appellant and the respondent does not exist.
c.
Both parties having a beneficial interest in the property, the share is 70% for the appellant and 30% for the respondent.
d.
Each party to bear their own costs.
98.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/2/eng@2023-01-27
Petition 39 of 2019,Saisi & 7 others v Director of Public  Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",27 January 2023,2023.0,Nairobi,Civil,Saisi & 7 others v Director of Public  Prosecutions & 2 others,[2023] KESC 6 (KLR),,"Brief facts
The appellants were employees of Geothermal Development Company (GDC). GDC was fully owned by the Government of the Republic of Kenya as a state corporation carrying on the business of geothermal exploration. GDC issued an advertisement for tender No. REF. GDC/HSQ/086/2011-12 (tender) for the provision of rig move services for the Menengai Geothermal Project. The tender was awarded to Bonafide Clearing and Forwarding Company Limited (hereinafter referred to as the “BCFCL”) for Kshs. 42,746,000 per rig move. The appellants were members of GDC’s Tender Committee that procured the provision of the rig move services. 
The Ethics and Anti-Corruption Commission (EACC/2nd respondent) asserted that it received a complaint regarding the failure of GDC’s Tender Committee to comply with procurement law in the procurement of rig move services tender. The complaints were based on the conduct of the appellants in their capacity as members of the GDC Tender Committee for the acquisition of rig moves in tender No. Ref. GDC/HQS/086/2011-2012. More specifically the difference in the procurement of the rig-move services for the year 2011/2012 at a cost of Kshs 42,746,000/= from BCFCL while the previous year the same services were tendered at a cost of Kshs 19,550,000/= to the same company, BCFCL, at a cost of per rig move. The difference in price in the procurement of the rig-move services was considerably higher than comparable similar rig-move services by the same provider, BCFCL, by other government institutions more specifically KenGen for rig-move services at Olkaria and Eburru Geothermal fields vide tender no. KGN-OLK-179-2012 resulted in an agreement dated February 5, 2014, at a cost ranging between Kshs. 13,565,040 and Kshs. 24,429,600. 
Due to that, DPP on the recommendation of EACC, elected to charge the appellants with various offences including wilful failure to comply with the law relating to procurement contrary to section 45 (2) (b) as read with section 48 of the Anti-Corruption and Economic Crimes Act and inappropriate influence on evaluation contrary to section 38(1)(b) as read with 38(2)(a) of Public Procurement and Disposal Act and abuse of office contrary to section 46 as read with section 48 of the Anti-Corruption and Economic Crimes Act. 
Before the said criminal case could be heard and determined, the 1st appellant, pursuant to leave of the court filed judicial review proceedings which inter alia sought an order of certiorari to quash EACC’s decision recommending her prosecution for the aforesaid anti-corruption offences; and DPP’s decision directing her prosecution. The High Court granted an order of prohibition barring the DPP from prosecuting. Aggrieved the respondents appealed and the Court of Appeal held that the judicial review application did not merit the exercise of the High Court’s discretion and found that the High Court misdirected itself in deciding to issue orders of certiorari and prohibition.
Aggrieved, the appellants filed two appeals which were consolidated. Their grievances were distinctively similar. They both contended that the charges preferred against them were non-existent and that the DPP failed to holistically interpret and understand the repealed Public Procurement and Disposal Act, 2005 and the Public Procurement and Disposal Regulations, 2006.","C. Analysis and Determination
i. Whether the character and scope of the judicial review has evolved/changed post Constitution 2010? And if so, in what way?
60.
The 1st appellant submitted that the Court of Appeal interpreted her case from the shackles of common law doctrine rather than constitutional imperatives. She contended that the judicial review application not only required a consideration of the decision-making process of the DPP but also an application and interpretation of the Constitution especially the equilibrium between her rights to fair hearing and the DPP’s prosecutorial power under article 157(6) and (11) of the Constitution. She submitted that this court in the case of Communication Commission of Kenya v Royal Media Services & 5 others; SC Petition 14 consolidated with Nos. 14A, 14B & 14C of 2014; [supra] recognized the elevation of judicial review to a pedestal that transcends the technicalities of common law. As such, it was her view that judicial review is entrenched in article 23 of the Constitution and is no longer under the common law prerogative jurisprudence and strictures. She therefore urged the court to find that her case before the High Court was squarely within the confines of the judicial review jurisdiction under the Constitution.
61.
The 2nd to 8th appellants submitted that the Court of Appeal erred in holding that the High Court looked into matters that it ought not to have looked into by embarking on analysing the sufficiency and quality of evidence gathered by the respondents. In their view, the charges against them were largely dependent on documentary evidence and most of the facts were not in controversy as the charges were based on a non- existent provision of the law. It was their position that the High Court was called upon to find out whether or not the omissions allegedly committed, prima facie constituted the alleged criminal offences under the procurement law, which decision could not have been made without embarking on a scrutiny of the documents. As such, they maintained that the learned Judge of the High Court was well within his mandate under article 165(3)(d) as read with article 157(11) of the Constitution to curtail their prosecution.
62.
DPP submitted that the High Court failed to appreciate that judicial review is about the decision-making processes and not the decision itself. Further, that an order of prohibition cannot quash a decision that has already been made, it can only prevent the making of a contemplated decision.
63.
Judicial review establishes the court's authority to hold the government as well as the subordinate courts and bodies exercising quasi-judicial authority accountable to the law. Michael Fordham in his book Judicial Review Handbook, 6th edition, Hart Publishing, 2012, defines judicial review as “…. The court’s way of enforcing the rule of law: ensuring that public authorities functions are undertaken according to law and that they are accountable to law. Ensuring, in other words that public bodies are not ‘above the law’”
Black’s Law Dictionary, 9th Edition, pg 924 defines judicial review as; 1. A court’s power to review the actions of other branches of government; esp, the court’s power to invalidate legislative and executive actions as being unconstitutional. 2. The constitutional doctrine providing for this power 3. A court’s review of a lower court’s or an administrative body’s factual or legal findings”.
64.
Before the promulgation of the Constitution 2010, judicial review was governed by the principles of common law largely borrowed from the United Kingdom. The jurisdiction to entertain applications for judicial review remedies was vested in the High Court. The basis of judicial review in Kenya was derived from the Law Reform Act (cap 26) Laws of Kenya and order 53 of the Civil Procedure Rules, 2010 as better developed by case law on the area. Section 8 and 9 of the Law Reform Act provided the substantive basis while order 53 provided the procedural basis. The remedies in judicial review were three, namely; certiorari, prohibition and mandamus. The grounds upon which one could base an application for judicial review were under the heads of illegality, irrationality, procedural impropriety and proportionality.
65.
The law in this regard was fairly settled as the High Court in Keroche Industries Limited v Kenya Revenue Authority & 5 others, Misc Civ Appli 743 of 2006; (2007) eKLR had set out what a party needed to demonstrate in order to prove illegality, irrationality, procedural impropriety and proportionality. The Court of Appeal in the case of Commissioner of Lands v Kunste Hotel Limited, Civil Appeal No 234 of 1995; [1997] eKLR had settled that judicial review was only concerned with the decision-making process. In doing so, the court was paying homage to the words of Lord Hailsham of St Marylebone in Chief Constable of the North Wales Police v. Evans (1982) 1WLR 1155:
“
The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court.”
66.
All appeared to be in order until the Kenyan Constitution arrived. Judicial Review was no longer a common law prerogative, but was now entrenched in the Constitution to safeguard the constitutional principles, values and purposes. In particular, article 23 (3)(f) provides for the orders of judicial review as one of the available remedies concerning the enforcement of the bill of rights. Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 165(6) grants the High Court supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. In 2015, Parliament in adherence to article 47 of the Constitution enacted the Fair Administrative Action Act, No 4 of 2014, Laws of Kenya (FAA Act).
67.
Also instructive to the application of judicial review, is that article 10 of the Constitution sets out the national values and principles of governance, key among them being the rule of law. These values and principles bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions.
68.
Due to this codification of the law on judicial review, two schools of thought have emerged. The first believes that since the promulgation of the Constitution 2010 2010, judicial review has shifted from the “process only approach” to merit review in appropriate cases. This is evident in decisions from the Court of Appeal in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR; Child Welfare Society of Kenya v Republic & 2 others ex-parte Child in Family Focus Kenya, Civil Appeal 20 of 2015; [2017] eKLR; Joshua Sembei Mutua v Attorney General & 2 others, Civil Appeal 93 of 2015; [2019] eKLR, Super Nova Properties Limited & another v District Land Registrar Mombasa & 5 others, Civil Appeal No 98 of 2016; [2018] eKLR; Josephat Kiplagat v Michael Bartenge, Civil Appeal 357 of 2013; [2016] eKLR to name a few.
69.
The second school of thought has maintained the traditional approach that believes that judicial review proceedings involve a “process only approach” limited to the interrogation of the process and not the merits of the decision being challenged. This is evident in the case by the Court of Appeal in Kenya Revenue Authority & 2 others v Darasa Investments Limited, Civil Appeal No 24 of 2018; [2018] eKLR; Captain (Rtd) Charles Masinde v Augustine Juma & 8 others, Civil Appeal No 1 of 2014; [2016] eKLR; Ransa Company Ltd v Manca Francesco & 2 others [2015] eKLR; and Republic v Chairman Amagoro Land Disputes Tribunal & another ex-parte Paul Mafwabi Wanyama, Civil Appeal No 41 of 2013 [2014] eKLR.
70.
This court in its previous decisions has touched on judicial review. The ones pertinent to the issue before the court are as follows. In the case of Communication Commission of Kenya v. Royal Media Services & 5 others; SC Petition 14 consolidated with Nos 14A, 14B & 14C of 2014; [supra] the Court observed that following the promulgation of the Constitution and upon the enactment of the Fair Administrative Action Act, there has been a shift from the traditional approach to the scope of judicial review. The court however did not say more on the shift. It held as follows:
“
[355]
However, notwithstanding our findings based on the common law principles of estoppel and res- judicata, we remain keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law.…”
71.
In SGS Kenya Limited v Energy Regulatory Commission & 2 others, SC Petition No 2 of 2019; [2020] eKLR this court held that judicial review is limited to the interrogation of the process and not the merits of the decision being challenged. The court held as follows:
“
[45]
…We have, however, observed that the appellate court was right in its finding that the High Court should not have gone to the merits of the Review Board decision as if it was an appeal, nor granted the order of Mandamus, since the 1st respondent did not owe any delimited statutory duty to the petitioner.” [Emphasis Added]
72.
In John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others, SC Petition 17 of 2015; [2021] eKLR in rendering a determination pertaining tores judicata, the court compared the scope of determination of judicial review juxtaposed against constitutional petitions. However, while analyzing the case of Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [supra] this court made a determination on the considerations to be made in judicial review when it held as follows;
“
102.
Despite the shift from common law to codification in the Constitution and the Fair Administrative Actions Act, the purpose of the remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision–making process itself. This finding is further reinforced by the fact that though the court in determining a judicial review application may look at certain aspects of merit and even set aside a decision, it may not substitute its own decision on merit but must remit the same to the body or office with the power to make that decision.” [Emphasis added].
73.
The present case offers the court an opportunity to render itself on the issue more authoritatively. The Fair Administrative Actions Act provides the parameters of judicial review to be the power of the court to review any administrative or quasi-judicial act, omission or decision of any person, body or authority that affects the legal rights or interests of an aggrieved person. The judicial review court examines various aspects of an act, omission or decision including whether the body or authority whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. These parameters are better set out extensively in section 7 of the Fair Administrative Actions Act (FAAA). We quote it verbatim as follows:
“
(2)
A court or tribunal under subsection (1) may review an administrative action or decision, if–
a.
the person who made the decision–
i.
was not authorized to do so by the empowering provision;
ii.
acted in excess of jurisdiction or power conferred under any written law;
iii.
acted pursuant to delegated power in contravention of any law prohibiting such delegation;
iv.
was biased or may reasonably be suspected of bias; or
v.
denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person's case;
b.
a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;
c.
the action or decision was procedurally unfair;
d.
the action or decision was materially influenced by an error of law;
e.
the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant;
f.
the administrator failed to take into account relevant considerations;
g.
the administrator acted on the direction of a person or body not authorised or empowered by any written law to give such directions;
h.
the administrative action or decision was made in bad faith;
i.
the administrative action or decision is not rationally connected to–
i.
the purpose for which it was taken;
ii.
the purpose of the empowering provision;
iii.
the information before the administrator; or
iv.
the reasons given for it by the administrator;
j.
there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law;
k.
the administrative action or decision is unreasonable;
l.
the administrative action or decision is not proportionate to the interests or rights affected;
m.
the administrative action or decision violates the legitimate expectations of the person to whom it relates;
n.
the administrative action or decision is unfair; or
o.
the administrative action or decision is taken or made in abuse of power.
74.
It is our considered opinion that the framers of the Constitution when codifying judicial review to a constitutional right, the intention was to elevate the right to fair administrative action as a constitutional imperative not just for state bodies, but for any person, body or authority. It was a clarion call to ensure that the constitutional right to fair administrative actions permeated every aspect of the lives of Kenyans, from their engagements with educational facilities such as universities, to employer-employee relationships, to engaging with public bodies in whatever capacity, or any body, person or authority that exercises quasi- judicial functions. We further take the view, that this approach is consistent with realizing the right of access to justice because justice can be obtained in other places besides a courtroom.
75.
In order for the court to get through this extensive examination ofsection 7 of the FAAA, there must be some measure of merit analysis. That is not to say that the court must embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly “in the circumstances of the case”, without examining those circumstances and measuring them against what is reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. However, it is our considered opinion that it should be limited to the examination of uncontroverted evidence. The controverted evidence is best addressed by the person, body or authority in charge. To borrow the words of the Court of Appeal in Judicial Service Commission & another v Lucy Muthoni Njora, Civil Appeal 486 of 2019; [2021] eKLR there is nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process only leads to intolerable superficiality. This would certainly be against article 259 of the Constitution which requires us to interpret it in a manner that inter alia advances the rule of law, permits the development of the law and contributes to good governance.
76.
Be that as it may, it is the court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Actions Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act. The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.
77.
For the avoidance of doubt, we see no reason to depart from our findings in SGS Kenya Limited v Energy Regulatory Commission & 2 others [supra] and John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others [supra].
ii. Whether the Court of appeal erred in holding that the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP as set out in the Constitution.
78.
The appellants' grievances are distinctively similar. They both contended that the charges preferred against them were non-existent and that the DPP failed to holistically interpret and understand the Public Procurement and Disposal Act (2005) and the Public Procurement and Disposal Regulation 2006. They also argued that the DPP’s prosecutorial discretion is not absolute, but rather it is limited by article 157(11) of the Constitution which specifies the mandatory considerations that underlie the exercise of its discretion. The Appellants particularly fault the Court of Appeal’s finding that the High Court only needed to have a bare reading of the charge sheet without analysing the factual foundation presented before him.
79.
The learned judge in his Judgement in Misc Civil Application No 502 of 2015 and Miscellaneous Civil Application No 198 of 2016 found that the charges facing the appellants were untenable. The learned Judge held that the DPP owes the court a duty of placing before it material upon which the court can feel that the DPP justified in mounting the prosecution; that based on the admitted factual scenario the charges leveled against the appellants were far- fetched it would not be permissible for the court to permit the Appellants face the charges simply because they would have had an opportunity of defending themselves.
80.
The Court of Appeal in finding that the learned Judge misdirected himself in arriving at the decisions to issue the orders of certiorari and prohibition held that the trial court must be accorded an opportunity to thoroughly interrogate the material before it through viva voce evidence and through cross-examination of witnesses so as to determine issues such as which procurement laws, as argued by the parties, supersede the other; the interpretation and consequence of the phrase ‘market price’ where the Market Price Index does not provide for specific goods or services; and on the general and specific obligations of the tendering committee but in relation to Tender No Ref GDC/HSQ/086/2011-12.
81.
Article 157(6) of the Constitution empowers the DPP to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed. Being one of the independent Constitutional offices established, article 157(10) of the Constitution safeguards this independence by decreeing that the DPP shall not require the consent of any person or authority before commencement of proceedings, neither shall he be under the direction or control of any person. That is not to say that this power is absolute. Article 157(11) requires the DPP in exercise of his duties to have regard for public interest, interests of administration of justice and to prevent or avoid abuse of the legal process.
82.
Stemming from these provisions of the law, the courts have consistently held that whenever it seems that the DPP is utilizing criminal proceedings to abuse the court process, to settle scores or to put an accused person to great expense in a case which is clearly not otherwise prosecutable, then the court may intervene. These decisions include Commissioner of Police & the Director of Criminal Investigation Department & another v. Kenya Commercial Bank Ltd & 4 others, Civil Appeal No 56 of 2012 2013] eKLR by the Court of Appeal. It also includes the case of Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others, SC Petition No 38 of 2019; (2021) eKLR where this court held that although the DPP is not bound by any direction, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of article 157(11) have not been met, then the High Court under article 165(3)(d)(ii) can properly interrogate any question arising and make appropriate orders. The court found the following guidelines read alongside article 157(11) of the Constitution to be a good gauge in the interrogation of alleged abuse of prosecutorial powers:
i.
Where institution/continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;
ii.
Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceedings, eg. want of sanction;
iii.
Where the allegations in the First Information Report or the complaint take at their face value and accepted in their entirety, do not constitute the offence alleged; or
iv.
Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.
83.
We are also minded of this court’s decision in Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others, SC Petition No 42 of 2019; (2021) eKLR where the court upheld the High Court’s position to the effect that in matters involving exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised. Further that the only exception where a court can compel a public agency to implement a recommendation is where “there is gross abuse of discretion, manifest injustice or palpable excess of authority” equivalent to denial of a settled right which the petitioner is entitled, and there is no other plain, speedy and accurate remedy.
84.
The following facts of the present Appeals are not contested. The appellants charges are hinged on their conduct in their capacity as members of the GDC Tender Committee for the acquisition of rig moves in tender No Ref GDC/HQS/086/2011-2012. More specifically the difference in the procurement of the rig-move services for the year 2011/2012 at a cost of Kshs 42,746,000/= from BCFCL while the previous year the same services were tendered at a cost of Kshs 19,550,000/= to the same company, BCFCL, at a cost of per rig move. It is also not controverted that the price was considered higher than comparable similar rig move services by the same provider, BCFCL, by other government institutions more specifically KenGen for rig move services at Olkaria and Eburru Geothermal fields vide tender no. KGN-OLK-179-2012 resulted in an agreement dated 5th February 2014 at a cost ranging between Kshs 13,565,040 and Kshs 24,429,600.
85.
Due to this, DPP on the recommendation of EACC, elected to charge the appellants with various offences including wilful failure to comply with the law relating to procurement contrary tosection 45(2)(b) as read withsection 48 of the Anti-Corruption and Economic Crimes Act No 3 of 2003 and Inappropriate influence on evaluation contrary to section 38(1)(b) as read with 38(2)(a) of Public Procurement and Disposal Act and Abuse of office contrary to section 46 as read with section 48 of the Anti-Corruption and Economic Crimes Act No 3 of 2003.
86.
The 1st appellant’s defence against the charges preferred against her in count III and IV consists of contentions that she merely witnessed the signature of the accounting officer on whom section 27(3) of the Public Procurement and disposal Act 2005 and regulation 7(c) of the Public Procurement and Regulations 2006 places the duty to sign the contract.
87.
The 2nd to 8th appellants contend that count II was premised on a non- existent law. It is a well-known tenet of the Constitution pursuant to article 50 (2)(n) of the Constitution, that a person cannot be convicted of an offence unless it is an offence in Kenya. However, that is not the case here. For clarity, their contention is not that the offence does not exist in statute, but rather it is an issue of interpretation. They argue that the respondents wrongly interpreted the provisions related to an open tender specifically section 30(3) of the Public Procurement and Disposal Act and regulation 10(2)(e) which they submit would not apply to an open tender. That from a reading of section 52(3)(i) of the Public Procurement and Disposal Act, 2005 (repealed) the tender set out the procedures and the evaluation criteria. They also argue that by section 66(2) of the Act the evaluation and comparison shall be done using the procedures and criteria set out in the tender document and no other criteria shall be used. They submit that the rig-moving services are not standard services and works within the known market prices. It was not a function of the Tender Committee to make comparisons for a service not contemplated by section 30(3) of the Public Procurement and Disposal Act 2005 (repealed). It is on this ambit that they submitted that Count I was premised on a non-existent law.
88.
It is our considered opinion that these are not issues concerning the propriety or otherwise of the decision by the DPP to charge them. These appear to be serious contentions of fact, evidence and interpretation of the law better suited to be examined by a trial court. Certainly, not for the High Court while exercising its judicial review jurisdiction. InHussein Khalid and 16 others v Attorney General & 2 others, SC Petition No 21 of 2017; [2019] eKLR this court held that it was not for the High Court as a constitutional court to go through the merits and demerits of the case as that is the duty of the trial court. Similarly, and as we have held hereinabove, it not for the judicial review court to undertake the merits and demerits of a matter based on controverted evidence and contested interpretations of the law.
89.
We are emphatic that the High Court, whether sitting as a constitutional court or a judicial review, may only interfere where it is shown that under article 157(11) of the Constitution, criminal proceedings have been instituted for reasons other than enforcement of criminal law or otherwise abuse of the court process. We reproduce the words of this court inHussein Khalid and 16 others v Attorney General & 2 others[ supra ] as follows;
“
[105]
It is not in dispute that every statutory definition of an offence comprises ingredients or elements of the offence proof of which against the accused leads to conviction for the offence. Inevitably, proof or otherwise of elements of an offence is a question of fact and that largely depends on the evidence first adduced by the prosecution and where the accused is placed on his defence, the accused evidence in rebuttal. This in our view is an issue best left to the trial court as it will not only have the benefit of the evidence adduced but will weigh it against the elements of the offence in issue. It is not automatic that once a person is charged with an offence (s) he must be convicted. Every trial is specific to the parties involved and a blanket condemnation of the statutory provisions is in our view overreaching. The presumption of innocence remains paramount.” [Emphasis added]
90.
From the circumstances of this case, we agree with the determination of the Court of Appeal that a distinction of the applicable procurement laws and whether the appellants participated in the tender process hence liable to prosecution is a determination best arrived at upon consideration of viva voce evidence and through cross examination of witnesses. We therefore come to the conclusion that the Court of Appeal did not err in holding that the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP as set out in the Constitution.
iii. Whether the DPP violated the Appellant’s rights and fundamental freedoms under Articles 10, 25(c), 27, 28, 29, 41 and 50 of the Constitution in preferring the charges contested by the Appellant.
91.
Article 10 of the Constitution relates to national values and principles. article 27 is on equality and freedom from discrimination. Article 25(c) and 50 related to the right to fair trial, article 29 is on freedom and security of the person while article 41 relates to labour relations. The appellants submit that a criminal trial premised on unfair and questionable partisan investigations or a decision to charge arrived at unfairly and without any reasonable basis would open a door to an unfair trial.
92.
The right to fair hearing is broad and includes the concept of the right to fair trial as it deals with any dispute whether they arise in a judicial or an administrative context. See; Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others, SC Petition No 18 of 2014 as consolidated with Petition No 20 of 2014; [2014] eKLR, Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others, SC Petition 7 of 2018 consolidated with Petition 9 of 2018; [2018] eKLR; John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others, SC Petition 17 of 2015; [supra].
93.
As we have found hereinabove, judicial review looks at the decision-making process. The court in judicial review cannot adequately canvass issues of controverted facts and whether those facts satisfy the ingredients of offences under which the accused are charged. More so, before a trial has taken off. As we stated in the case ofHussein Khalid and 16 others v Attorney General & 2 others[supra] theappellants put the wagon before the horse by asserting that their right to a fair trial was violated at the time of their arraignment in court. By refusing to submit to the jurisdiction of the trial court where their innocence may be upheld or their guilt established, the appellants removed themselves from the protections of article 50(1). Whatever the case, the criminal justice system is required to protect against the abuses claimed by the appellants, which the trial court is competent to resolve when challenged by an accused person, properly, during the trial.
94.
This court having already demonstrated that there was nothing untoward in relation to the charges levelled against the appellants; the allegations of malice and discrimination having not being properly canvassed/demonstrated by the appellant, it follows that the claim for constitutional rights violations equally falls by the wayside. It is our considered opinion that it would be pragmatic that the appellants let the trial commence and conclude, during which trial they may raise all the issues they have as against the law under which they are charged. If successful, it is only then that they will pursue their rights on appeal.
95.
For the foretasted reasons we find no merit in the consolidated appeals and dismiss the same.
iv. Who shall bear the costs of the appeal?
96.
This court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, made the following determination on the award of costs;
“
It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.” [Emphasis added]
97.
We have taken into account the industry of the parties, the purpose and intent of the appellants and the issues canvassed in the appeal. We have also considered that the issues raised by the appellant are issues that had to be seriously interrogated by the superior courts in their interpretation. We are cognizant of the fact that, the criminal charges have been in abeyance since institution of these proceedings. It is also not lost on us that various stay orders have been issued by this court and the superior courts in relation to these proceedings.
98.
We find it just in the circumstances that each party bears its own costs.
Orders
99.
Consequent upon our conclusion above, we finally order that;
a.
The 1st appellant’s petition of appeal dated October 25, 2019 and lodged on even date and the 2nd to 8th appellants’ petition of appeal dated October 25, 2019 and lodged on October 29, 2019 are hereby dismissed.
b.
Anti-Corruption Case No 20 of 2015 before the Chief Magistrates’ Court in Milimani to proceed and be heard on priority basis.
c.
Each party to bear its own costs.
Orders accordingly.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/6/eng@2023-01-27
Petition 26 of 2019,"Wamwere & 5 others v Attorney General (Petition 26, 34 & 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR) (27 January 2023) (Judgment)",Judgement,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",27 January 2023,2023.0,Nairobi,Civil,Wamwere & 5 others v Attorney General,[2023] KESC 3 (KLR),,"Brief facts
On February 28, 1992, a group of women, mostly relatives of political prisoners, gathered at Uhuru Park to participate in a hunger strike, demanding the release of those imprisoned for politically instigated offences. The appellants claimed they were among the demonstrators and alleged that on March 3, 1992, they were violently attacked by over 100 police and GSU officers. They continued their protest at All Saints Cathedral Church until January 19, 1993, when the last political prisoners were released. The appellants further alleged that between March 4, 1992, and January 19, 1993, they faced repeated assaults by police. The 1st appellant claimed that police had previously destroyed three of her houses between 1986 and 1988, with one parcel of land being re-allocated to a senior government official. They did not seek judicial redress at the time due to a lack of confidence in the judiciary but, following the 2010 Constitution, they filed petitions in the High Court, asserting that their rights to freedom from torture, arbitrary deprivation of liberty, and protection from violence were violated by police and GSU officers.
The High Court found that the appellants had not given any reasonable explanation or justification for the delay in filing their petitions and that they had not established their allegations of torture; and more so, since there were no medical records or treatment notes to substantiate their claim of being tortured over a long period. The court also held that the 1st appellant had not proved ownership of the properties she claimed had been demolished. Aggrieved, the appellants filed appeals in the Court of Appeal. The Court of Appeal dismissed the appeals and held that the appellants had not adduced any tangible evidence to support the allegations of torture or violation of the 1st appellant’s right to property. Further aggrieved the appellants filed the instant consolidated appeals. ","D. Analysis
35.
It is well settled that the mere invocation by a party that an appeal to this court is premised on article 163(4)(a) of the Constitution does not automatically clothe the court with jurisdiction to entertain the same. A litigant must demonstrate how such an appeal involves interpretation and application of the Constitution; and that the issue(s) relating to the interpretation and application was subject of adjudication before the superior courts below. At the very least, where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, a litigant must demonstrate that the Court of Appeal’s reasoning and the conclusion(s) which led to the determination of the issue in dispute took a trajectory of constitutional interpretation and application. See Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, SC Petition No 2 of 2014; [2014] eKLR. Having appraised ourselves of the matter at hand, we are satisfied that the consolidated appeal does involve matters of constitutional interpretation and application. In other words, the consolidated appeal, as we stated in the opening paragraph, revolves around the interpretation and application of the bill of rights.
36.
Upon deliberation on the consolidated appeal, it is our view, that its determination will turn on four issues namely:
i.
Whether there is limitation of time in filing claims for human rights violation.
ii.
Whether there was unexplained inordinate delay by the appellants in filing their petitions in the High Court.
iii.
Whether the appellants proved on a balance of probabilities that their fundamental rights and freedoms were violated.
iv.
If the answer to (iii) is in the affirmative, what is the appropriate remedy in the circumstances of the consolidated appeal?
We now turn to the determination of these issues.
i. Whether there is limitation of time for filing claims of human rights violations.
37.
Perhaps, the starting point under this issue should be a consideration of whether the two superior courts below in their impugned decisions imposed limitation of time as alleged by the appellants. Having perused the decisions in question, we are satisfied that the two courts did not impose the limitation alluded to. In point of fact, the two superior courts affirmed the position that the Limitation of Actions Act, cap 22 Laws of Kenya does not apply to causes founded on violation of rights and freedoms. We concur and hold that there is no limitation of time in matters relating to violation of rights under the Constitution which are evaluated and decided on a case by case basis.
38.
Nonetheless, it is well settled that a court is entitled to consider whether there has been inordinate delay in lodging a claim of violation of rights. See the persuasive decision of the Court of Appeal Safepak Limited v Henry Wambega & 11 others, Civil Appeal No 8 of 2019; [2019] eKLR. It is on that basis that the two superior courts held that claims of violation of human rights must be filed in court within reasonable time. Where there is delay, a petitioner ought to explain the reasons for the delay to the satisfaction of the court. This takes us to the consideration of the next issue.
ii. Whether there was unexplained inordinate delay by the appellants in filing their petitions in the High Court
39.
The appellants’ urged that their claims related to questions of ‘transitional justice’; and as such, the two superior courts should have found there was no unexplained delay in filing the petitions. The appellants were also troubled with what they perceived as an unequal protection and benefit of the law given that the High Court had adjudicated petitions by other similarly situate persons without raising concerns over undue delay in lodging the said petitions. Crucial to the determination of the framed issue, the appellants’ explanation for the delay before the two superior courts was that they lacked confidence in what they referred to as the ‘old judiciary’ under the previous constitutional dispensation. The appellants also proffered an additional explanation of impecuniosity for the first time in this court.
40.
The determination of this issue demands that we interrogate whether the subject claims are in the nature of “transitional justice” claims. Therefore, the appropriate starting point is to understand what is meant by transitional justice. The idea of transitional justice has been described in Jeremy Webber, ‘Forms of Transitional Justice’ (2012) 51 Nomos 98 thus:
“
Transitional justice is about situations in which a society is moving from a state of injustice to justice, from oppressive government to government that respects the rule of law, from authoritarianism to democracy.”
41.
Similarly, Colleen Murphy in ‘The Conceptual Foundations of Transitional Justice’ (Cambridge University Press, 2017) at page 1 notes as follows:
“
The term transitional justice is generally taken to refer to formal attempts by post-repressive or post-conflict societies to address past wrongdoing in their efforts to democratize.”
42.
What emerges from the foregoing is that the idea of transitional justice connotes the broad range of mechanisms, means or mode through which a society confronts the wrongdoings from its past. Its objective being to obtain truth and justice regarding the past so as to ensure promotion and protection of the rule of law and durable peace going into the future.
43.
The need to confront and silence the ghosts of past wrongs or historical injustices is relevant in the Kenyan context. This is in light of Kenya’s history which is littered with incidences of gross violations of human rights and other atrocities that occurred during the colonial era and continued in the post- independence era. Further, victims of such abuses were never granted an opportunity to obtain redress and justice during that period. In this regard, an official report of the Government of the Republic of Kenya, Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission (Government printer, 2003) at page 19 records as follows:
“
The political history and governance of the Kenyan state is a catalogue of gross human rights violations, the arrogance of power, and the commission of mind-boggling economic crimes. Constitutionalism and the rule of law, which are the central features of any political democracy that respects human rights, have been absent in Kenya’s history… Since its creation by the British in 1895, the Kenyan state has largely been a predatory and illiberal instrumentality, an ogre defined by its proclivity for the commission of gross and massive human rights violations. Little need be said of the colonial state, which was specifically organized for the purposes of political repression to facilitate economic exploitation… The post- colonial state has engaged in the most abominable human rights violations and economic crimes known to humanity. Not even the re-introduction of multi-partyism in 1991, and the two general elections in 1992 and 1997, the first of their kind in decades, brought relief from state-directed human rights violations and the wanton and shameless theft of public coffers and property, evils that became the trademark of the Kenya government.”
The report lists the incidences of gross abuse of human rights in the pre-2003 period to include torture, detention, and persecution of the critics of the government of the day, amongst others.
44.
The golden thread that connects the appellants’ claims of violation of their rights is that they are alleged to have taken place during a period which has been recognized as repressive. In that, during the period in question the state grossly abused the rights and freedoms of the critics of the government of the day. By their nature, these claims are founded on alleged past wrongs that call upon the law and courts to provide a transformative response. We therefore have no hesitation in finding that the appellants’ claims qualify as falling within the category of transitional justice claims.
45.
What then is the implication of transitional justice claims on the question of the delay of over twenty (20) years in filing the claims in court? We have taken note of the fact that the Court of Appeal endorsed the High Court’s view that the appellants had not offered a reasonable explanation for the delay in filing their claims in court.
46.
In considering whether the delay of twenty (20) years was inordinate, we are of the considered opinion that transitional justice claims are context sensitive. It follows that courts ought to be particularly sensitive to the reasons adduced for the delay. At the same time, courts should balance the reasons for delay with the likely prejudice a respondent may face in defending the claim in line with the right to fair trial. Such an approach emerges from the comparative lesson as can be gleaned from jurisprudence from Kenya’s superior courts and other jurisdictions.
47.
In Mutua & others v The Foreign and Commonwealth Office [2012] EWHC 2678 (QB), a group of elderly Kenyan victims of human rights abuses, including torture, inflicted by colonial administration on prisoners in Kenya between 1952 and 1960 filed a case before the High Court of Justice, Queen’s Bench Division on June 23, 2009. The United Kingdom’s government in objecting to the competency of the suit argued that the survivors’ claims were time-barred under English law, and thus should be struck out. The other issues raised were whether a fair trial was still possible notwithstanding the unavailability of material witnesses; and whether there were compelling reasons for the court to exercise its discretion by allowing the claims to proceed for hearing and determination. In dismissing the objection to the suit, Justice McCombe held that the “public interest in the claims being tried out” and “what is fair” in the circumstances of the case are relevant considerations in the exercise of the court’s discretion as to whether the subject claim should be heard on its merit. The court found that the claimants had established a proper case for the exercise of its discretion in their favour.
48.
In another English decision, arising from allegations of historic sexual abuse perpetrated upon children in an institutional setting, the House of Lords in A v Hoare [2008] 1 AC 844, observed that the court ought to take into account the fact that the alleged abuse might have contributed to the delay in pursuing justice. In particular, Baroness Hale of Richmond noted at para 60 of the judgment that:
“
Then the injustice to a claimant who may be deprived of his claim, perhaps as a result of the very injuries which gave rise to it, can be balanced against the injustice to a defendant who may be called upon to defend himself a long time after the event when important evidence may no longer be obtainable. I fully support the more generous approach to the exercise of discretion which is adopted in particular by Lord Hoffmann. The reasons for the delay are highly relevant to that exercise, as of course are the prospects of a fair trial. A fair trial can be possible long after the event and sometimes the law has no choice. It is even possible to have a fair trial of criminal charges of historic sex abuse. Much will depend upon the circumstances of the particular case.” [Emphasis added]
49.
With respect to the consolidated appeal, the decisions of the two superior courts largely turned on the failure by the appellants to file their claims immediately after two critical transitional moments in Kenya’s recent democratization history. This being after the 2002 transition when President Moi left office or immediately after the 2010 transition to a new constitutional dispensation. The two superior courts observed that as a matter of fact many other similarly situate victims of past abuses filed their claims in court immediately after these transitional moments. This leads us to pose the question; given the nature of transitional justice claims, was it fatal for the appellants to have filed their claims in 2013?
50.
It has been recognized that transitional moments can be long-drawn and there are no clear-cut dates when a transition can be said to have run its full course. Especially, taking into account the tendency for re-irruptions in the form of renewed quests for justice. This is poignantly brought out in Cath Collins, ‘Post-Transitional Justice: Human Rights Trials in Chile and El Salvador’, (The Pennsylvania State University Press, 2010) at pages 21 and 22 as follows:
“
… the persistence of the justice question into the post- transitional period, or periodic “re-irruptions” of it in the form of renewed accountability pressure, can be viewed as positive signs of democratic institutional health rather than as crises or breakdowns of transition. It is not only conceivable but logical to expect that private actors and even future democratic governments might pursue accountability more vigorously than transitional administrations … certain dimensions of post-transition polities can be expected to particularly affect the emergence of post-transitional justice activity. One is the quality and depth of subsequent democratization, particularly progress toward rule of law. The health and vigor of civil society organization in general and its ability to access the justice system, in particular, will also be relevant… The passage of time is a factor that can have varied and sometimes counter-intuitive effects. It may seem set to eventually consign the memory of victims and the concerns of survivors to irrelevance or even oblivion, but a look at the currently observable cases of post- transitional justice change suggests that other outcomes are also possible. The passage of time can serve to make the addressing of accountability more possible, perhaps less politically costly, even as it sometimes reduces both the personal (victim/survivor) and institutional (social) benefits.” [Emphasis added]
51.
What we deduce from the above is that late or recurring pursuit for justice are a distinctive motif of the quest for justice in transitional contexts. In other words, renewed or late quest for accountability and justice after the initial burst of efforts for justice is a phenomenon that is inherent in transitions. It follows that the persistence of the appellants and other litigants to get justice after other claimants had lodged similar claims is not something that is unique to the appellants herein as it is a universal phenomenon that is evident in the quest for transitional justice and accountability.
52.
The appellants claim that they did not have faith in the pre-2010 judiciary, ought to be interrogated from the overarching context of the transition from the repressive to the post-2010 era. It is important to take into account the fact that courts during the repressive era were generally notorious for their abject failure to provide protection to victims of human rights violations. Though the process of judicial reforms and making the Kenyan state human rights friendly began in 2003, this process was not concluded until the constitutional reforms in 2010. This included the process of vetting of Judges and Magistrates which was a transitional justice mechanism to make the Judiciary fit as a custodian of the rule of law, democracy and human rights. Indeed, this partly explains why the clamour for judicial reforms was part of the larger constitutional reform package.
53.
An additional factor to take into account is the fact that the Constitution explicitly envisages redress for historical injustices that occurred during the repressive era. For instance, article 67(2)(e) vests the National Land Commission with functions that include
“
to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress”.
Section 15 of the National Land Commission Act No 5 of 2012, as amended vide the Land Laws (amendment) Act No 28 of 2016, operationalized the above constitutional directive for redress for historical land injustices. It gave the National Land Commission the mandate to admit, investigate and recommend appropriate redress for historical land injustice complaints received within a five-year timeline/period. In light of the dictate of article 27(1) of the Constitution on equal protection and equal benefit of the law, we are inclined to the view that all victims of historical injustices must be treated equally and afforded an equal opportunity for redress. This chimes with the demands for harmonious interpretation of the Constitution as already endorsed by this court in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, SC Appl No 4 of 2012; [2013] eKLR where we held at para 33 that:
“
... One of the fundamental rights under the Constitution is access to justice for all, and non-discrimination. Consequently, all litigants are to be accorded equal right of access to the court.”
54.
In that regard, Lenaola, J, as he then was, held the following persuasive view in Gerald Juma Gichohi & 9 others v Attorney General, HC Petition 587 of 2012; [2015] eKLR at paras 94-95:
“
The history of this country would lead a reasonable man to state that it was almost impossible a few years ago to sue the regime and get away with it especially on matters of human rights. In that regard, the recent public apology by President Uhuru Kenyatta for violations of human rights by past regimes is an affirmation of that fact. In the same breath, it was also the petitioners’ claim that the Judiciary has affirmed that it is vindicating past violations of fundamental rights and freedoms in order to secure the country’s future…
[It] is true that the State today in a reconfigured Kenya, cannot shut its eyes from the failings of the past neither can it claim innocence for the excess of past regimes. It must pay, the price for its historical faults and I must also agree with the petitioners submission that the instant petition should be approached in the context of transitional injustices especially now that there is a new dispensation under the Constitution 2010. Time is ripe for addressing past injustices that included gross violations of fundamental rights and freedoms as witnessed in the past and the citizenry must not fault the courts for doing justice, albeit belatedly because delayed justice is indeed justice denied.”
55.
Based on the context of Kenya’s democratic transition, we find, unlike the two superior courts below, that the appellants’ explanation for the delay to the extent that it was attributed to lack of faith in the pre-2010 judiciary plausible. This is because the 2010 transition required the Kenyan state and society to undertake a great transformation, involving the creation of new institutions and anchoring them in a new set of values and principles, which were in total contrast to those that so far had prevailed. The scope of this transformation, including with respect to institutional reforms, was arguably deepened due to the fact that the earlier transition in 2002 to a new government was largely seen as not ‘deep and far reaching’ enough. Indeed, with respect to the Judiciary, the institution had to undergo a transitional justice process in the form of the vetting of Judges and Magistrates, to restore public confidence in its ability to act as a custodian of the rule of law and human rights. Therefore, the appellants’ contention that they had no faith in the pre-2010 judiciary to render justice regarding alleged violation of rights attributed to the state cannot be faulted in light of this history. As for the additional explanation of impecuniosity, we are unable to entertain the same since it was raised for the first time before this court and the superior courts below did not have an opportunity to address their minds on the same.
56.
In our view, there is also a public interest element in allowing victims of alleged past gross human rights violations to access courts; that is, serving justice is the most effective insurance against future repression. To us, a judicial trial serves to send strong expression of formal disapproval of gross abuse of human rights. It also functions to re-commit state institutions and persuade the general citizenry of the importance of human rights in a polity. On the other hand, failure to ensure access to justice could send the wrong signal that judicial imprimatur has been given to these historical wrongs. Such a stance will encourage not deter potential violators of rights. It would also send the signal to the public that they can be complicit in violation of rights without consequences attaching to the perpetration of such atrocities. This is informed by the reality that failure of enforcement of freedoms and rights vitiates their authority, sapping their power to deter proscribed conduct.
57.
We find support for the above approach in the persuasive jurisprudence by the Inter-American Court of Human Rights in the case of Barrios Altos v Peru, Merits, Judgment, Inter-Am Ct HR (ser C) No 75, (Mar 14, 2001). The case was about the infamous Barrios Altos massacre of fifteen civilians during one single incident by members of the Peruvian army; and the subsequent attempt by the Fujimori regime to enact amnesty laws to shield the perpetrators from prosecution. In emphasizing the need to allow victims of gross human rights abuses to access justice, the Inter-American Court of Human Rights held that all amnesty laws and provisions designed to prevent the identification, investigation, and punishment for human rights abuses violate non-derogable human rights. This is because they obstruct victims’ access to justice, prevent victims from knowing the truth, and block victims’ access to adequate reparations.
58.
Before concluding on this issue, we must also address another limb of argument by the appellants relating to unequal protection and benefit of the law. Their claim is to the effect that other similarly situate claimants who filed their claims after more than twenty (20) years were granted their day in court. In particular, they made reference to Milka Wanjiku Kinuthia & 2 others v Attorney General (supra), Irene Wangari Gacheru & 6 others v Attorney General (supra) and Kennedy Kinuthia & 3 others v Attorney General (supra) relating to the freedom corner incident.
59.
Save for Milka Wanjiku Kinuthia & 2 others v Attorney General (supra), in the other two cases, the Attorney General, who was the respondent therein, urged that there had been inordinate delay in lodging the same. Both cases had been filed 22 years after the alleged violation. Our reading of the High Court’s decisions reveals that the court was alive to the fact that there is no time limitation for filing claims for violation of human rights. Nevertheless, the High Court in the said cases appreciated that it was required to look into whether there was unreasonable delay in lodging the cases in question. Equally, the High Court properly addressed its mind by holding that whether or not there is inordinate delay is dependent on considerations such as, the explanation proffered and whether justice will be served in entertaining such a claim. In both cases, the High Court was convinced with the explanation advanced and took into account the dictates of transitional justice in finding that there wasn’t inordinate delay in lodging the same.
60.
The position taken by the High Court in the above-mentioned cases is what has generally been adopted by the courts of this country and which we approve as the correct position in law. It follows therefore that whether a claim for violation of rights has been instituted within a reasonable time is to be determination based on the peculiar circumstances of each case.
61.
In the end, we find that the delay in filing the appellants’ claims was understandable given the circumstances of the matter as discussed above.
iii. Whether the appellants proved on a balance of probabilities that their fundamental rights and freedoms were violated.
62.
The issue as framed gives rise to a number of sub-issues, being:
a.
Which Constitution is applicable to the circumstances of the consolidated appeal?
b.
Whether violation of the 1st appellant’s right not to be arbitrary deprived of property was proved.
c.
Whether violation of the appellants’ rights and freedom from torture, and inhuman and degrading treatment was proved.
a. Which Constitution is applicable to the circumstances of the consolidated appeal?
63.
It is noteworthy that the appellants in contending violation of their fundamental rights and freedoms cited both the current and repealed Constitution. In particular, they urged violation of their rights and freedom not to be subjected to torture, inhuman and degrading treatment, and arbitrary deprivation of property under articles 25(a), 29(a), (c), (d), (f), 40(1)(a) and (b); and that the said rights were also protected under sections 74 and 75 of the repealed Constitution. Equally, it is important to point out that the allegations in the consolidated appeal relate to events that are said to have occurred in 1986, 1987, 1988 with regard to the 1st appellant; and between March 3, 1992, and January 19, 1993 with regard to all the appellants.
64.
Constitutions, like other legal instruments, are generally prospective in application unless there is a clear textual marker indicating that retrospective application of a provision is contemplated. See Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others, SC Appl No 2 of 2011; [2012] eKLR. Consequently, since the events in issue are alleged to have taken place before the current Constitution came into force, we find that it is the repealed Constitution which is applicable. Moreover, the rights and freedoms alleged to have been infringed are protected in both the repealed and current Constitution albeit with some minor variations in formulation. It follows that we will proceed to determine the question as to whether the appellants proved violation of their fundamental rights and freedoms to the requisite standard based on the repealed Constitution.
b. Whether violation of the 1st appellant’s right not to be arbitrary deprived of property was proved
65.
Section 75 of the repealed Constitution provided protection from deprivation of property except where stipulated conditions for compulsory acquisition were satisfied. This constitutional provision embodied the fundamental principle that a person’s property could not be expropriated or taken away arbitrarily. In addition, as we held in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (amicus curiae), SC Petition No 3 of 2018; [2021] KESC 34 (KLR) the right to property also extends to protection of the structures erected in land regardless of the ownership status of the land.
66.
The two superior courts below were of the unanimous view that a petitioner bears the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which is on a balance of probabilities. We affirm this juridical standpoint bearing in mind that such claims are by nature civil causes. See Deynes Muriithi & 4 others v Law Society of Kenya & another, SC Application No 12 of 2015; [2016] eKLR.
67.
In this case, the onus of proof was on the 1st appellant to adduce sufficient evidence to demonstrate that firstly, she owned or erected or lived in the alleged properties; and secondly, that state agents interfered or deprived her of the subject properties. This, as was aptly appreciated by the superior courts, is the import of section 107 of the Evidence Act on the burden of proof. The provision stipulates:
107.
(1)
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2)
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
In addition, section 109 of the Evidence Act elaborates on the onus of proof by stipulating that:
“
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
68.
Unfortunately, aside from bare allegations, the 1st appellant did not adduce even an iota of evidence to back her claims. We particularly agree with the observation by the High Court that this limb of the 1st appellant’s claim was pursued in a context of an “evidential vacuum”. The trial court aptly observed thus:
“
Regarding the allegation that various parcels of land belonging to the petitioner were taken by the state, no evidence was produced pertaining to her ownership of the said parcels of land. In fact, nothing was placed before this court to indicate that she indeed owned or had claim to the alleged parcels of land. How then can … the petition be interrogated in such a [sic] evidential vacuum.”
69.
It is also imperative to take note of the fact that even in situations where a respondent does not file or tender evidence to counter the petitioner’s case, the petitioner still bears the burden of establishing his/her allegations on a balance of probabilities. As to whether such standard is met will depend on whether a court based on the evidence is satisfied that it is more probable that the allegation(s) in issue occurred. See Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others, SC Petition No 12 of 2019; [2020] eKLR.
70.
All in all, the 1st appellant’s evidence or lack of it, for that matter, could not be the basis of a finding that it was more probable than not that her right not to be deprived of property was infringed. To put it differently, in the words of Lord Denning J in Miller v Minister of Pensions [1947] 2 All ER 372 –
“
Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, … the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
We therefore see no reason to interfere with the superior courts’ findings on this issue.
c. Whether violation of the appellants’ rights and freedom from torture, and inhuman and degrading treatment was proved
71.
On this issue, we begin our consideration from the premise of uncontested historical facts. On February 28, 1992 mothers of political prisoners, who had been detained by the then regime, together with their supporters convened at freedom corner. They went on a hunger strike protesting the incarceration and seeking the release of the political prisoners. It is common ground that on March 3, 1992 police officers stormed freedom corner and dispersed the demonstrators. This incident drew widespread press coverage nationally and internationally as well as condemnation across the globe. It is a matter that we can comfortably take judicial notice of as a matter of general notoriety.
72.
For instance, the distinguished historian, Prof Tabitha Kanogo of the Department of History of the University of California Berkeley, in her book ‘Wangari Maathai’, (Ohio University Press, 2020) at pages 128 – 135 captures the material events at freedom corner elaborately. We quote her at length:
“
Maathai adopted novel methods to deal with the concerns raised by the mothers of political prisoners. Significantly, a segment of Uhuru Park dubbed “freedom corner”
became the site for anti-government rallies demanding the release of the fifty-two detainees and imprisoned political dissenters. The struggle lasted for close to one year, from February 28, 1992, to early 1993. Maathai’s ideas and strategies for moving forward included the use of a hunger strike …
The hunger strikers drew large crowds of supporters but did not change official thinking. On the fourth day of the strike, March 3, 1992, the government moved to break the strike, unleashing a violent assault on the strikers and their supporters …
Smoked out of the freedom corner, the protestors moved to the basement of a church adjacent to Uhuru Park the All Saints Cathedral of the Anglican Church of Kenya where they remained holed up and were joined by many supporters from all walks of life, ...”
See also Daniel Branch, Kenya: Between Hope and Despair, 1963- 2011 (Yale University Press, 2011) at page 189.
73.
In taking the above approach, we are fortified by the provisions of sections 59 and 60 of the Evidence Act which stipulate circumstances in which courts can take judicial notice of facts requiring no proof. Section 60(1)(o) of the Evidence Act stipulates that:
“
The courts shall take judicial notice of the following facts–
…
(o)
all matters of general or local notoriety.”
[Emphasis added]
Section 60(2) of the Evidence Act proceeds to stipulate that:
“
In all cases within subsection (1) of this section, and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference.”
74.
Further, in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Petition 23 of 2014; [2015] eKLR this Court observed at paras. 71-75:
“
The Oxford Dictionary of Law (Ed Jonathan Law and Elizabeth A Martin), 7th Ed (Oxford University Press, 2009) (at page 306) thus defines “judicial notice”:
‘The means by which the court may take as proven certain facts without hearing evidence. Notorious facts…may be judicially noticed without inquiry.’
Judicial notice is important to the effective discharge of the judicial mandate, as contemplated by the Constitution of Kenya, 2010. Vindication of this perception is crystal-clear, from the case-law experience worldwide.
In Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191 at p 210, Lord Sumner in the English House of Lords thus observed:
“
Judicial notice refers to facts which a judge can be called upon to receive and to act upon, either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.""
…
There are many cases in which judicial notice has commended itself to Kenya’s courts. Here is a typical example. In Republic v Simon Wambugu Kimani & 20 others, HC Criminal Revision No [2015] eKLR, the learned Judge observed:
“
In my view, the court was fully entitled to take judicial notice of notorious prevailing facts in the public domain, even where the same were not formally brought to the attention of the court by either the prosecution or the defence.”
75.
Based on the foregoing historical accounts, there is no doubt that the freedom corner incident took place. A fact which in no way was disputed by the two superior courts. Nonetheless, the burden of proof still lay with the appellants to prove on a balance of probabilities that they were not only at freedom corner but were also subjected to torture, inhuman and degrading treatment during the demonstrations.
76.
Looking at the evidence before the trial court, the record shows that the 1st appellant adopted her affidavit as her evidence in chief. During cross- examination by learned counsel, Mr Moimbo, she maintained that she was at freedom corner on the material day. It is noteworthy that the Attorney General closed his case without calling any witness. Indeed, the trial court in its judgment found that “there is no doubt from the evidence before me that she was at freedom corner on that day”.
77.
Similarly, the 2nd, 3rd and 4th appellants adopted the contents of their affidavits as their evidence in chief. What stands out from their cross- examination is that it focused on three concerns: whether they had permission to hold the subject protest/assembly; whether they had records of their arrest; and whether they had medical records for their alleged injuries. In all these areas of focus, the appellants conceded that they did not have permission to hold the subject meeting; they did not have records of their arrest (the 2nd appellant indicated that she was not arrested); and they did not have medical records proving the injuries they allegedly sustained. Yet again, the Attorney General did not call any witness and proceeded to close his case.
78.
Lastly, the 5th and 6th appellants on cross-examination by learned counsel, Mr Obura, were adamant that they participated in the demonstrations at freedom corner. Despite alleging, they had suffered injuries they conceded that they did not have any medical documents to that effect. Like in the other matters, the Attorney General did not call any witness.
79.
Having painstakingly gone through the record of the proceedings before the trial court, we note that the appellants’ evidence of having been at freedom corner was not displaced during cross-examination. In addition, the Attorney General did not call any witness(es) to challenge the evidence of their participation in the subject protest/assembly. Consequently, weighing the evidence adduced before the trial court, we come to the conclusion that the appellants’ proved their participation in the subject protest/assembly at freedom corner to the requisite standard. See Miller v Minister of Pensions (supra)
80.
Section 74(1) of the repealed Constitution provided as follows:
“
No person shall be subject to torture or to inhuman or degrading punishment or other treatment.”
As a starting point, the court has to interrogate the normative content and the obligation that the provision imposed on duty bearers. This entails construing the meaning of the concepts of “torture” and “inhuman or degrading punishment or other treatment”.
81.
It has been the position of this court that we should strive to interpret and develop constitutional concepts from an indigenous prism based on our country’s historical experience. However, sight cannot be lost of the fact that we are interpreting prohibitions recognized in international human rights law and other comparable constitutions. Therefore, we can draw valuable insight from their interpretation in the body of international human rights law and comparative jurisprudence.
82.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), offers the following authoritative definition of the concept of “torture” at article 1(1):
“
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
Therefore, the ‘essential elements’ of what constitutes torture as can be identified from article 1 of “CAT” include: a) the infliction of severe mental or physical pain or suffering; and b) for a specific purpose, such as gaining information, punishment or intimidation.
83.
Likewise, article 16 of “CAT” is relevant in determining the contours of ‘prohibition against inhuman or degrading punishment or other treatment’. It provides:
“
Each state party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
84.
It is evident that the exact boundaries between ‘torture’ and other forms of ‘inhuman or degrading punishment or other treatment’ are often difficult to identify; and may depend on the particular circumstances of the case as well as the characteristics of the particular victim. Nonetheless, both terms cover mental and physical ill-treatment that has been intentionally inflicted by or with the consent or acquiescence of state authorities.
85.
The European Court of Human Rights (ECHR) has in the Ireland v United Kingdom, judgment of January 18, 1978, Ser A, No 25 held that the intensity of the pain or suffering inflicted upon the victim is the decisive criterion in distinguishing torture from cruel, inhumane, and degrading treatment. It was that court’s opinion that cruel, inhuman or degrading treatment or punishment requires a lower threshold than severe pain or suffering.
86.
We find that “inhuman or degrading punishment or treatment” refers to ill- treatment which does not have to be inflicted for a specific purpose. However, an intention to expose individuals to conditions which amount to or result in the ill- treatment has to exist. Exposing a person to conditions reasonably believed to constitute ill-treatment will entail responsibility for its infliction. Further, degrading treatment may involve less severe pain or suffering than torture; and will usually involve humiliation and debasement of the victim. The essential elements which constitute ill-treatment not amounting to torture would therefore be reduced to the intentional exposure to significant mental or physical pain or suffering.
87.
Having fleshed out the normative requirements of section 74(1) of the repealed Constitution, did the appellants establish that they were subjected to either severe or significant mental or physical pain or suffering?
88.
The determination of the above question by the two superior courts below largely turned on evidential assessment. In particular, the two superior courts’ position was that the appellants neither produced any medical reports proving physical or psychological torture nor records for their arrest. Moreover, the appellants seemed to be in good health when they appeared before the High Court. In addition, the two superior courts found that the reports in the society magazine which they sought to rely on were inadmissible.
89.
On our part, we agree with the two superior courts below to the extent that there was an evidential gap which was not surmounted by the appellants regarding whether they were arrested and subjected to torture.
90.
However, taking into account the violent nature of the disruption of the subject protest/assembly, it is more likely than not that the whole episode had a psychological traumatic effect on the appellants, who we have held were at the locus in quo. Although the appellants did not exhibit any physical injuries or medical reports, we are persuaded that the whole incident had a psychological/traumatic effect on them. This in our view can be equated to inhuman treatment which was a violation section 74(1) of the repealed Constitution. This is because the respondent did not give any justifiable reason(s) whatsoever why it was necessary to violently disrupt and disband the protests by the appellants who were harmless. To that extent and unlike the two superior courts below, we find that the appellants’ right to freedom of association and assembly was interfered with and due to the violent methods employed by the police, this amounted to a violation of their human rights which were duly protected under section 74(1) of the repealed Constitution.
iv. What is the appropriate remedy in the circumstances of the present appeal?
91.
Crafting of remedies in human rights adjudication goes beyond the realm of compensating for loss as it is principally about vindicating rights. Though the appellants did not lead any evidence of the loss they may have suffered due to the violation of their right and freedom from inhuman treatment, it is important for the court to vindicate and affirm the importance of the violated rights.
92.
The foregoing rational is buttressed by the reasoning of the Supreme Court of Canada in City of Vancouver v Ward [2010] 2 SCR 28. In that matter, the court held that damages may be awarded if at least one of three objects is served: individual compensation; vindication, in the sense of addressing harm to ‘society as a whole’; and deterrence, in the sense of ‘influencing government behaviour in order to secure state compliance with the charter in the future’, which would promote ‘good governance’. At para 30 the court recognized that:
“
… the fact that the claimant has not suffered personal loss does not preclude damages where the objectives of vindication or deterrence clearly call for an award.”
93.
In awarding damages, courts exercise a very broad, open-ended remedial discretion taking into account what is just, fair and reasonable in the circumstances of the case. In the present case, we are of the view that the damages we award should not only serve to enhance the dignity of the appellants but also be a public recognition of the wrong done to them given the historical context of this case. We have considered comparable awards previously awarded in the cases we cited in the opening paragraphs of this judgment involving other persons who were at the freedom corner, which awards were made several years ago ranging from Kshs 750,000 to 3,000,000. We have also taken into account the circumstances of each case bearing in mind the violations that were proven in those cases and our findings in this matter and the fact that counsel for the appellant urged us to award Kshs 3,000,000/= to each of the appellants. In our considered view, we assess damages of kenya shillings two million, five hundred thousand (Kshs 2,500,000/-) payable to each of the appellants as an appropriate remedy.
94.
Before we conclude, the appellants’ counsel alluded to the fact that the learned trial Judge exhibited bias or prejudice against the appellants. We cannot help but note that this issue was neither raised at the Court of Appeal nor did it form the grounds of appeal to this court. It was raised for the first time in counsel’s oral submissions before the court. As such, this court is devoid of jurisdiction to entertain the sameG. Orders
97.
In the premise, the consolidated appeal is allowed to the following extent:
a.
The judgments of the Court of Appeal dated June 28, 2019 and August 6, 2019 in Civil Appeal Nos 188, 189 and 190 of 2017 are hereby set aside.
b.
The judgments of the High Court dated April 15, 2018 in HC Petition Nos 196, 197 and 209 of 2013 are hereby set aside.
c.
A declaration hereby do issue that the appellants’ petitions in the High Court were lodged without inordinate delay due to the historical context under which the violations claimed occurred.
d.
A declaration hereby do issue that the appellants rights and freedom from inhuman treatment as protected under section 74(1) of the repealed Constitution were violated by the Government of Kenya through the actions of its agents and/or servants (police officers and GSU officers).
e.
The Government of Kenya shall pay damages assessed at Kshs 2,500,000.00/- to each of the appellants in this consolidated appeal.
f.
The Government of Kenya shall bear the costs in the High Court, Court of Appeal and this court.
It is so ordered.",Allowed in part ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/3/eng@2023-01-27
Application 7 (E013) of 2022,Senate of Kenya & 3 others v Speaker of the National Assembly & 10 others (Application 7 (E013) of 2022) [2023] KESC 1 (KLR) (18 January 2023) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",18 January 2023,2023.0,Nairobi,Civil,Senate of Kenya & 3 others v Speaker of the National Assembly & 10 others,[2023] KESC 1 (KLR),,"Brief facts
The 1st, 2nd, 3rd and 4th applicants filed the instant application seeking to review, vary and/or set aside the ruling and order of the court delivered on June 3, 2022 in Application No. 4(E010) of 2022; Senate of Kenya & Others v National Assembly & Others, which orders allowed an application for review and set aside the orders of stay issued by the court. The applicants argued that the court erred in allowing the respondents’ application by failing to consider the effect of the same on the legality of the Bills that the National Assembly had been given latitude to enact.
The applicants further argued that the impugned ruling had given the National Assembly latitude to pass Bills without the concurrence between the two houses, an issue that was the subject of the main petition before the court. The 1st and 2nd respondents contended that the Supreme Court Act did not make provisions for a review of a decision which was the subject of another application for review as that would amount to inviting the court to sit on appeal of its own decision. ","10.
In the circumstances, we make orders as follows:
a.
The notice of motion application dated July 1, 2022 is hereby dismissed;
b.
Each party shall bear its costs.
11.
Orders accordingly.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/1/eng@2023-01-18
Petition 20 (E023) of 2022,Aluochier v Independent Electoral and Boundaries Commission & 17 others (Petition 20 (E023) of 2022) [2022] KESC 77 (KLR) (20 December 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",20 December 2022,2022.0,Nairobi,Civil,Aluochier v Independent Electoral and Boundaries Commission & 17 others,[2022] KESC 77 (KLR),,"Brief facts
At the High Court, the appellant’s concerns were that the 2nd to 16th respondents’ conduct, in changing their political party while still holding office as Member of County Assembly (MCA), was in violation of national values and principles of governance; that they did not satisfy the moral and ethical requirements to continue serving in the County Assembly after being cleared as independent candidates; and that they were deemed to have resigned from the sponsoring party. The appellant pleaded that the respondents were in contravention of sections 2 and 45 of the Anti-Corruption and Economic Crimes Act, section 313 of the Penal Code, and section 13(1)(b) of the Leadership and Integrity Act and therefore did not satisfy the moral and ethical requirements to continue being MCAs.
The Committee did not address itself to any of those grounds, but instead downed tools, finding that it had no jurisdiction to entertain or determine issues involving constitutional interpretation and application; that a similar question was pending determination before the High Court and was, therefore, sub judice; and that it had no criminal jurisdiction to determine the guilt or otherwise of the respondents. 
Aggrieved by the Committee’s decision, the appellant sought to review it in the High Court at Kisumu by directly, without leave, lodging a notice of motion. The High Court dismissed the appellant’s application with costs to the respondents. The appellant appealed to the Court of Appeal, and it was dismissed on the same grounds as in the High Court. 
Aggrieved, the appellant filed the instant appeal before the Supreme Court. The appellant contended that his application at the High Court was competent as it was anchored on inter alia articles 47 of the Constitution and on sections 7(2) and 11(2) of the Fair Administrative Action Act; and that the procedure contemplated in the Law Reform Act and order 53 rule 1 of the Civil Procedure Rules did not apply to his application. Furthermore, he faulted the High Court for failing to pronounce itself on the conduct of the 2nd to 16th respondents, which amounted to resignation from the Assembly in accordance with Article 194(1)(e) of the Constitution.","D. Analysis and determination
25.
The 2nd, 5th, 7th, 8th, 9th, 11th, 12th, 13th, 14th and 16th respondents had prayed that the question of jurisdiction of the court to entertain this appeal be determined in limine litis without arguments on merit. Though we heard arguments on the appeal, as a matter of practice, this court before considering the merits of arguments in any appeal before it, first ascertains if it has properly been moved. This is because, as Nyarangi, JA said in his famous and time-honoured statement in the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, jurisdiction is everything. If we find, as we have in previous cases that we do not have jurisdiction, we down tools at that point, save in exceptional circumstances as we shortly shall demonstrate. It is equally now firmly established that a point of jurisdiction can be raised at any time, formally by a notice of preliminary objection, grounds of opposition, viva voce during arguments or by the court suo motu because challenging the jurisdiction of a court is a threshold issue. Jurisdiction can only be conferred on a court by either the Constitution or statute. A court cannot expand its jurisdiction through judicial craft or innovation. See SK Macharia and another v Kenya Commercial Bank Ltd & 2 others, Sup Ct Civil Application No 2 of 2011; [2012] eKLR. Nor can a party confer on a court power it does not have. Similarly, parties cannot by mutual consent confer jurisdiction when there is none.
26.
By defining in specific terms the jurisdiction of the Supreme Court in article 163(4), the Constitution itself makes it clear that the court must not treat with levity any action or proceedings brought outside those limits because such an action would amount to an abuse of its process, recalling that not every grievance from the decision of the Court of Appeal lies to the Supreme Court. An appeal from the decision of the Court of Appeal must meet the test under article 163(4)(a) and (b), upon which the court has made several decisions over the years.
27.
Whether or not the jurisdiction under article 163(4) has been properly invoked will depend on either the nature of the pleadings, the nature of the proceedings or the relief claimed or the decisions of the superior courts below, or in some cases, all the four. This requires a party relying on article 163(4)(a), like here, to demonstrate that the grievance he has presented, concerns the application or interpretation of the Constitution. It is not the mere statement in the pleadings or submissions by a party to the effect that the appeal involves constitutional interpretation or application that clothes the court with jurisdiction.
28.
The party must identify precisely the relevant articles of the Constitution, the subject of the impugned decision and further demonstrate that the subject of the appeal was the same issue in controversy and around which both the High Court and the Court of Appeal based their respective decisions on. Where the decision being challenged on appeal has nothing or little to do with the interpretation or application of the Constitution, such a decision cannot be the subject of a further appeal to this Court under the provisions of article 163(4)(a). See Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Petition No 3 of 2012; [2012] eKLR. It must, as consequence, follow that the provisions of the Constitution cited by a party as requiring the interpretation or application by this court, must be the same provisions upon which the High Court’s decision was based, and the subsequent subject of appeal to the Court of Appeal; in other words, the article in question must have remained a central theme of constitutional controversy, in the life of the cause. See Zebedeo John Opore v Independent Electoral and Boundaries Commission & 2 others, SC Petition No 32 of 2018; [2018] eKLR.
29.
Whether a matter is originated as a judicial review application or a constitutional reference, the foregoing considerations are constant and the strictures of article 163(4)(a) have to be satisfied. See Peninah Nadako Kiliswa v Independent Electoral & Boundaries Commission (IEBC) & 2 others, SC Petition No 28 of 2014; [2015] eKLR.
30.
We have set out these principles to test the objection that we have no jurisdiction to entertain or determine this appeal.
31.
The appellant’s concerns that precipitated a complaint to the Committee was that the 2nd to 16th respondents’ conduct, in changing their political party while still holding office as MCAs, was in violation of national values and principles of governance; that they did not satisfy the moral and ethical requirements to continue serving in the Assembly after being cleared as independent candidates; and that they were deemed to have resigned from the sponsoring party. The appellant specifically cited articles 2(2), 3(1), 10, 193(1)(b) and 194(1)(e) of the Constitution as the foundation of his petition. He also pleaded that, in addition to these constitutional infractions, the respondents were in contravention of sections 2 and 45 of the Anti-Corruption and Economic Crimes Act, Section 313 of the Penal Code and section 13(1)(b) of the Leadership and Integrity Act, and therefore did not satisfy the moral and ethical requirements to continue being MCAs.
32.
The Committee did not address itself to any of these grounds, but instead downed tools, finding that it had no jurisdiction to entertain or determine issues involving constitutional interpretation and application; that a similar question was pending determination before the High Court and was therefore sub judice; and that it had no criminal jurisdiction to determine the guilt or otherwise of the respondents.
33.
Rejecting the appellant’s application to review by quashing this decision, the High Court agreed and upheld the reasons and conclusions by the Committee for dismissing the complaint. It also found that the application, though constitutional, sought judicial review reliefs and ought to have been commenced in accordance with the relevant rules.
34.
The Court of Appeal, on a second challenge affirmed this determination, answering the two issues framed by the High Court; whether the application was competent and whether the Committee had jurisdiction to determine the dispute before it. It appears to us that the ratio emanating from the High Court decision was around, the nature and scope of judicial review; the doctrine of sub-judice; and the jurisdiction of the Committee.
35.
On the first question, the learned judge rendered this statement;
33.
What then is the procedure for bringing Judicial Review application? The submission by Mr Aluochier that this application is under article 47 of the Constitution and therefore not subject to order 53 Civil Procedure Rules and section 8 and 9 of the Law Reform Act cannot hold water. Judicial Review is a special jurisdiction. In so far as no rules have been made under article 47 of the Constitution, there can be no vacuum in law. A party approaching court for Judicial Review orders of certiorari, mandamus and Prohibition must comply with the procedure under order 53 of the Civil Procedure Rules. He must seek the court’s leave first through a chamber summons application supported by a statement of facts and a verifying affidavit and annexures in support of the prayers. In this case, the applicant should have annexed the impugned decision. It is after grant of leave, that an applicant is allowed to file the notice of motion application within 21 days. Seeking of leave is meant to expedite the process and weed out any frivolous applications.
34.
The applicant has done none of that. What is before the court is neither a Judicial Review application nor a petition. If the applicant wanted to file a petition to seek any constitutional remedies available including Judicial Review orders, he should have done so under the rules under the Constitution (Mutunga Rules). Article 23(3) of the Constitution outlines the remedies a person can seek in a constitutional petition which includes Judicial Review orders. If it was a petition, then the applicant would have not needed to seek leave of court to file the petition.
…
42.
Secondly, the prayers which the applicant is seeking are not in the nature of Judicial Review writs (sic) of mandamus, certiorari and prohibition. If at all this was a Judicial Review Application which it is not, those are the only appropriate orders and/or prayers a party can seek. Looking at the prayers, the applicant wants this court to review the decision of the 1st respondent. This is an appellate court. A person aggrieved by the decision of the 1st respondent can only approach this court by way of an appeal and Judicial review of the decision of the 1st respondent”.
36.
Reference in this passage to articles 23 and 47 of the Constitution is only in relation to the scope of judicial review in terms of the Constitution, a totally different cause from the initial complaint before the Committee, where articles 193(1)(b) and 194(1)(e), among others, were alleged to have been breached.
37.
On the second matter, the learned Judge accepted that it was common ground that a similar issue was pending determination before the High Court even as the appellant filed a complaint with the Committee; that in the circumstances it would have been sub-judice for the Committee to entertain a matter the High Court was already seized of. The court was also not convinced that the claim, as framed reposed jurisdiction in the Committee. Any consideration of the original dispute in the judgment of the High Court was wholly gratuitous after the court found that the Committee lacked jurisdiction and, in any case, the Committee did not express any opinion on the complaint that would have given rise to a consideration by the High Court.
38.
It is the foregoing conclusions that were once more challenged in the Court of Appeal on a whopping 24 grounds. In summary, the appellant complained that his application was competent as it was anchored on inter alia articles 47 of theConstitution and on sections 7(2) and 11(2) of the Fair Administrative Action Act; and that the procedure contemplated in the Law Reform Act and order 53 rule 1 of the Civil Procedure Rules were not applicable to his application. Furthermore, he faulted the High Court for failing to pronounce itself on the conduct of the 2nd to 16th respondents which amounted to resignation from the Assembly in accordance with article 194(1)(e) of the Constitution.
39.
The original arguments morphed from the qualification of the 2nd to 16th respondents to contest elections for the office of MCA before the Committee into the nature and scope of judicial review under the 2010 Constitution before the High Court and the Court of Appeal. Premium was put on and heavy weather made of issues that did not aggrieve the appellant when he set out to challenge the conduct of the respondents. From the High Court, matters turned on whether the character and scope of judicial review under the Constitution and the Fair Administrative Actions Act has changed from one limiting the court’s consideration to the decision-making process only to one where the court can now interrogate the merits as well as the process; whether the rules of procedure promulgated in 2013,Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, were to be applied in the absence of rules under section 10 (2) of the Fair Administrative Actions Act; and whether, after the enactment of the Fair Administrative Actions Act, the requirement for leave to apply for judicial review under section 9 of the Law Reform Act and order 53 of the Civil Procedure Rules, 2010 were still relevant.
40.
Looking at the nature of the pleadings, proceedings, reliefs before the Committee, and on the other hand, the decisions of the two superior courts below, we cannot say that the grievance presented to this Court concerned the application or interpretation of the Constitution. The cause in the High Court was distinctly short on the interpretation or application of the Constitution. The lengthy arguments about articles 23 and 47 of the Constitution had nothing to do with the original grievance. Their citation, per se cannot be the basis for our assumption of jurisdiction.
41.
The instant appeal having emanated from the High Court in a judicial review application, must be considered under the parameters set out by this court in Peninah Nadako (supra). By those parameters, the appellant is required to identify the particular(s) of constitutional character that were canvassed at both the High Court and the Court of Appeal; and to demonstrate that both superior courts below had misdirected themselves in relation to prescribed constitutional principles, and either granted, or failed to grant Judicial Review remedies, the resulting decisions standing out as illegal, irrational, and/or unprocedural, hence unconstitutional.
42.
The appellant having properly identified precisely the relevant articles of the Constitution which in his view were violated by the 2nd to 16th respondents, was expected to convince us that the subject of the appeal was the same issue in controversy and around which both the High Court and the Court of Appeal based their respective decisions. The decision being challenged in this appeal has nothing to do with the interpretation or application of articles 23 and 47 of the Constitution.
43.
We come to the conclusion that, for the reason that the court lacks jurisdiction, this appeal fails. We down tools at this stage. It presents neither exceptional circumstances nor opportunity for the court to provide interpretive guidance on the Constitution. See Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; In the Matter of the Speaker of the Senate & another, Advisory Opinion Reference 2 of 2013 and Sonko v Clerk, County Assembly of Nairobi City & 11 others, SC Petition 11 (E008) of 2022.
The appeal lacks merit and is accordingly dismissed.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/77/eng@2022-12-20
Petition 11 (E008) of 2022,Sonko v County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) [2022] KESC 76 (KLR) (5 December 2022) (Reasons),Reasons,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",5 December 2022,2022.0,Nairobi,Civil,Sonko v County Assembly of Nairobi City & 11 others,[2022] KESC 76 (KLR),,"Brief facts
The appellant, the former County Governor of Nairobi, had filed a petition challenging his impeachment. His petition at the High Court was dismissed, and so was his subsequent appeal. Aggrieved, the appellant filed an appeal before the Supreme Court where he challenged the impeachment on grounds that it was unconstitutional as it violated the sovereignty of his constituents and undermined the vote at the ballot box, on grounds that the impeachment was done without due process and that he was not accorded a fair trial.
The respondents filed a preliminary objection on grounds that the Supreme Court did not have the jurisdiction to determine the appeal owing to failure to cite which provision the appeal was based on. ","E. Analysis and Determination
84.
There were four counts of impeachable charges brought against the appellant as follows;
i.
Gross violation of the Constitution and law,
ii.
abuse of office,
iii.
gross misconduct, and
iv.
committing crimes under national law.
85.
Having carefully re-evaluated the arguments in this appeal, the pleadings and the unanimous decisions of the two superior courts below, we answer each of the seven framed issues and set out in paragraph 53 sequentially as follows;
i. whether the court’s jurisdiction was properly invoked
86.
In Nyarangi JA’s time-honoured words in the Owners of the Motor Vessel “Lillian S” v Caltex Oil Kenya Limited [1989] KLR 1, which were themselves originally penned by the United States of America Supreme Court in 1915 in the case of McDonald v Mabee, 243 US 90,91 (1915); without jurisdiction, a court has no power and must down tools in respect of the matter under review.
87.
The County Assembly and the Attorney-General have objected to the jurisdiction of the court to entertain the appeal on the grounds that the court was improperly moved by invocation of the wrong constitutional and/or statutory provisions that do not clothe it with jurisdiction; and that the issues in the appeal did not involve any question of interpretation or application of the Constitution within the meaning of article 163(4)(a) of the Constitution and sections 3 and 15 of the Supreme Court Act. Further, they have contended that this being a second appeal, the court was constrained to confine itself to matters of law, yet the appeal was replete with questions of fact. These objections were supported by the 1st, 2nd, 4th, 5th, 6th and 10th respondents.
88.
It is elementary knowledge on account of a legion of decisions of this court that appeals from the Court of Appeal lie to this court pursuant to articles 163(4) or 163(4)(b) of the Constitution as a matter of right or upon certification that a matter of General ublic importance (GPI) is involved; and that an appeal shall not lie to this Court, unless brought within the compass of either of the two jurisdictional limbs.
89.
We can confirm from the onset that the petition of appeal dated April 1, 2022 but filed on May 20, 2022 is expressed to be brought pursuant to two repealed rules, 9 and 33 of the Supreme Court Rules, 2012, which essentially dealt with contents of a petition and institution of appeals. Rules 9 and 33 of the 2020 Rules, on the other hand relate to “sealing of court documents” and “application for certification”, respectively. All these provisions clearly cannot be the basis for invoking the court’s jurisdiction. As far as appeals from the Court of Appeal are concerned, a party moving this court must bear in mind the limits of its jurisdiction and must decide, either to seek a certification as a matter of general public importance under article 163(4)(b) of the Constitution or come as a matter of right under article 163 (4)(a) thereof. Even when a party invokes the latter, it is upon that party to identify and specify how the appeal concerns interpretation and application of the Constitution.
90.
It can never be the role of the court to wander around in the maze of pleadings and averments to ascertain by way of elimination which of the two limbs of article 163(4) a party intends to rely on. The court has consistently discouraged this kind of impetuous presentation of pleadings before it. For example, in Suleiman Mwamlole Warrakah & 2 others v. Mwamlole Tchappu Mbwana & 4 others, [supra], the court restated the frontiers of its appellate jurisdiction and emphasized that an appeal to it shall not lie, unless convincingly preferred within the confines of either of the two jurisdictional limbs of article 163(4) of the Constitution. The court said;
“
(53)
In this appeal, what counsel for the petitioners is asking us to do is to assume jurisdiction by way of elimination. This court is being called upon to hold that, because certification was not sought by the intending appellant, then it must follow that the said appellant, is invoking the court’s jurisdiction as of right, under article 163(4)(a) of the Constitution, even without demonstrating that, such right obtains in the first place. This we cannot do, as it would make a mockery of our past pronouncements on the matter…”
91.
To this clear articulation, we can only add that, given the strict limit of jurisdiction of the Supreme Court under article 163(4) of the Constitution, it is paramount for any party moving it for any relief under that article to identify which one of the two limbs, (a) or (b) is being invoked. These prerequisites were recapitulated in Nasra Ibrahim Ibren v Independent Electoral Boundaries & 2 others, SC Petition No 19 of 2018; [2018] eKLR, as follows:
43.
… parties seeking to appeal to the Supreme Court have a duty to outrightly state the particular jurisdiction of the court that they invoke. Jurisdiction is thus so fundamental that it should not be left to conjecture. The court, and other parties in a matter, should not be left agonizing under what appellate jurisdiction a matter is filed. Consequently, we are surprised by the appellant’s approach to this court and fault her for not having outrightly disclosed under which appellate jurisdiction she moved this court. She left this fundamental indicator far late in the day during her submissions when she mentions that this court has jurisdiction to hear this appeal under article 163(4)(a) of the Constitution”.
92.
The justification behind the requirement of specifying the limb of article 163(4) should be obvious, but one of them is that the applicable considerations and principles for each of the limbs are different. In an adversarial system like ours, rules of pleading also serve to ensure that parties define succinctly the issues for determination so as not to take the rest of the parties by surprise. On the other hand, courts adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings.
93.
There has been sufficient guidance from the court on the need to specify the jurisdiction being invoked and we hoped that the infractions identified in this appeal would not be encountered ever in this court. We were wrong. What is constant, however, so far as the court is concerned, is that each failure to align an appeal to those guidelines, will meet the ultimate fate suffered by the appellants in Suleiman Mwamlole Warrakah & 2 others [supra], Nasra Ibrahim Ibren v Independent Electoral Boundaries & 2 others [supra] and Daniel Kimani Njihia v Francis Mwangi Kimani & another [supra], in a long line of others.
94.
We will not stop there. counsel intending to represent parties before the court must recognize that, like any appearance before any apex court in the world, practice of law before this court as Kenya’s court of last resort must truly represent and reflect strict standards of professional responsibility. As an officer of the court upon whose shoulders rest, in part, the responsibility for the administration of justice, counsel must, before bringing an action to the court, identify the elementary legal foundation and ascertain as a minimum, whether the court has jurisdiction, because as a general proposition, the relief available to a party depends not only on the pleadings but more significantly on the jurisdiction. That is why, as a matter of practice, the pleadings must always carry, at the very top, reference to the relevant provisions of the Constitution, the law and rules relied upon and specify at the end, the relief claimed. In addition, it cannot be stressed enough that, counsel is expected, indeed, required to be fully abreast with the jurisprudence of the court.
95.
In an apex court, there is no room for indolent and lackadaisical approach to preparation and presentation of cases. We expect nothing but precision, diligence and above all, professionalism. It is for these reasons that the court has repeatedly cautioned in several decisions such as Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, SC Applic No, 4 of 2012; [2013] eKLR, Daniel Kimani Njihia v Francis Mwangi Kimani & another [supra], Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others [supra], and National Rainbow Coalition Kenya (NARC Kenya) Independent Electoral & Boundaries Commission; Tharaka Nithi County Assembly & 5 others (Interested Party), SC Petition 1 of 2021; [2022] KESC 6 (KLR) (Civ) (17 February 2022), against sloppiness in the invocation of the court’s jurisdiction.
96.
In any case, the appellant has failed to demonstrate as directed by the court in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Petition No 3 of 2012; [2012] eKLR, how the appeal involved application or interpretation of the Constitution and the manner in which the Court of Appeal erred in determining those very questions. We can do no better now than we did in Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney- General & 2 others, SC Petition No 45 of 2018; [2020] eKLR, but to re-state the jurisprudence around article 163(4)(a) of the Constitution with these words:
“
(62) We cannot over-emphasize the specialized nature of article 163(4)(a)’s appellate jurisdiction of this court. That jurisdiction is not just another level of appeal. Thus, even if the original suit in the High Court or lower court invoked specific constitutional provisions, that fact alone is not enough for one to invoke and sustain an appeal before this court. A party has to steer his appeal in the direction of constitutional interpretation and application. He/she should directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution”.
It explained further that;
“
The jurisdiction is discretionary in nature at the instance of the court. It does not guarantee a blanket route to appeal. A party has to categorically state to the satisfactory of the court and with precision those aspects/issues of his matter which in his opinion falls for determination on appeal in the Supreme Court as of right. It is not enough for one to generally plead that his case involves issues of Constitution interpretation and application.”
97.
We find, for these reasons, that the preliminary objection meets the threshold in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors ltd (1969) EA 696 and sustain it.
98.
That conclusion would, in strict application of Owners of the Motor Vessel “Lillian S” v Caltex Oil Kenya Limited [supra], have been sufficient to dispose of this appeal in its entirety, and the Court would have to down tools. However, in view of the public interest and nature of the dispute, the broad interests of the parties, the need for due guidance to the judicial process and to the courts below; for the sake of posterity and development of jurisprudence and in terms of the court’s decisions in, among other cases, Jasbir Singh Rai & 3 others v Tarlochan Singh Rai and 4 others, SC Petition No 4 of 2012; [2013] eKLR, In the Speaker of the Senate & another v Attorney- General & 4 others, SC Advisory Opinion No 2 of 2013; [2013] eKLR (paragraph 156), Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013; [2014] eKLR, (paragraph 52), Anami Silverse Lisamula v Independent Electoral & Boundaries Commission & 3 others, SC Petition No 9 of 2014; [2014] eKLR and Lemanken Aramat v Harun Meitamei Lempaka & 2 others, SC Petition No 5 of 2014; [2014] eKLR, we are of the considered view that the right course is for us to determine all the pertinent questions raised in the appeal. It is not the first time we are doing this as should be evident in the number of times it has been done in the above decisions.
99.
By the very nature of its position in the hierarchy of courts, the Supreme Court has a constitutional obligation to develop jurisprudence and guide the courts below it on matters of general public interest, as well as on those involving the interpretation and application of the Constitution. This duty cannot be curtailed by a decision of any court, just the way Justices of this court cannot be rendered superfluous, or their work made perfunctory and mechanical. The function of the court in resolving questions of interpretation and application of the Constitution is to remove any doubts and ambiguities in the law; mitigating hardships and correcting wrongs and not avoiding them. This was succinctly expressed in the following passage in the concurrent decision of Mutunga, CJ & President of the court, In re the Speaker of the Senate & another v Attorney-General & four others [Supra] (paragraph 156):
“Each matter that comes [up] before the court must be seized upon as an opportunity to provide high-yielding interpretive guidance on the Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents [Constitution- making] does not end with its promulgation; it continues with its interpretation. It is the duty of the court to illuminate legal penumbras that Constitutions borne out of long-drawn compromises, such as ours, tend to create.”
The following passage drawn from the court’s judgment in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others, [supra] is equally instructive;
“
The immediate pragmatic purpose of such an orientation of the judicial process is to ensure predictability, certainty, uniformity and stability in the application of law. Such institutionalization of the play of the law gives scope for regularity in the governance of commercial and contractual transactions in particular, though the same scheme marks also other spheres of social and economic relations. Going forward it will be good practice for this court to take every opportunity a matter affords it to pronounce on the interpretation of a constitutional issue that is argued either substantively or tangentially by the parties before it.” [our emphasis]
See also David Ndii & others v Attorney General & others [2021] eKLR BBI Case) per Njoki Ndungu, SCJ.
100.
It must be emphasized, however, that the generally accepted position and widely applied ratio expressed in the wise words of Nyarangi, JA in the Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [supra] that “jurisdiction is everything”, and that a court lacking jurisdiction “must down its tools”, holds good and retains validity. All we have expressed here is that, as far as this court, the final court, is concerned, in appropriate cases; we repeat, in appropriate cases and only this final court, will rise to the occasion and not down tools, to resolve disputes that relate to its constitutional mandate. Even where it declines jurisdiction to entertain any particular questions, the court may wish to achieve quality jurisprudence and also to resolve specific issues raised in the particular matter, in order to draw the whole dispute to a meaningful conclusion and to settle the law. It is not in all situations.
101.
This approach is, therefore, not a departure from The Owners of the Motor Vessel “Lillian S” v Caltex Oil Kenya Limited [supra] but an extended horizon to cater for the [new] Supreme Court, with its specialized and wider jurisdiction than would have been contemplated at the time the decision in “Lillian S,” was made.
102.
In Lemanken Aramat v Harun Meitamei Lempaka & 2 others [supra], the court justified this route by explaining that;
“
[101]
We would make it clear in the instant case that, it is a responsibility vested in the Supreme Court to interpret the Constitution with finality: and this remit entails that this court determines appropriately those situations in which it ought to resolve questions coming up before it, in particular, where these have a direct bearing on the interpretation and application of the Constitution. Besides, as the Supreme Court carries the overall responsibility The Constitution of Kenya, 2010, article 163(7)] for providing guidance on matters of law for the State’s judicial branch, it follows that its jurisdiction is an enlarged one, enabling it in all situations in which it has been duly moved, to settle the law for the guidance of other courts.
……
[106]
Quite clearly, the foregoing provisions affirm that the Supreme Court, as the guardian of the Constitution, and the final arbiter on constitutional dispute-situations, has been entrusted with the mandate to ensure the effectiveness of the binding constitutional norm.
[107]
The Supreme Court’s special jurisdiction merits express recognition. The Constitution’s paradigm of democratic governance entrusts to this court the charge of assuring sanctity to its declared principles. The court’s mandate in respect of such principles cannot, by its inherent character, be defined in restrictive terms. Thus, such questions as come up in the course of dispute settlement (which, itself, is a constitutional phenomenon), especially those related to governance, are intrinsically issues importing the obligation to interpret or apply the Constitution – and consequently, issues falling squarely within the Supreme Court’s mandate under article 163(4)(1)(a), as well as within the juridical mandate of the court as prescribed in article 259(1)(c) of the Constitution, and in section 3(c) of the Supreme Court Act, 2011 (Act No 7 of 2011)
…
[111]
From the principles thus stated, it is clear to us that this court ought to maintain constant interest in the scheme and the quality of jurisprudence that it propounds over time, even where it is constrained to decline the jurisdiction to deal with any particular questions. Whatever option it takes, however, this court ought always to undertake a methodical analysis of any issues it is seized of, and ought always to draw the whole dispute to a meaningful conclusion, bearing directions and final orders, in the broad interests of both the parties, and of due guidance to the judicial process and to the courts below.” [our emphasis]
103.
But above all, we are fortified in our decision to consider the remaining six grounds in this appeal by the fact that, whether we down tools at this stage or go to the end, the inevitable result is that the decision of the Court of Appeal stands upheld. For these reasons, there are exceptional circumstances and proper justification not to down tools but to consider and determine the main grounds before the court.
104.
In view of the position we have adopted in the foregoing paragraphs, we emphasize that, not all the six grounds involve the interpretation or application of the Constitution or are matters of general public importance, the two permanent and defined coordinates of the court’s jurisdiction in respect of appeals arising from the decisions of the Court of Appeal. Matters of fact that touch on evidence without any constitutional underpinning are not open for this court’s review on appeal. See Paul Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney- General & 2 others [supra] and Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (KLR).
In the latter decision, the court stressed that;
“
It is to be recalled that the appellants herein, had already been evicted from their settlements, in an operation they contend was not only illegal, but which violated their right to housing and dignity. This court has no jurisdiction to revisit the factual findings of either the High Court or Court of Appeal on this issue. We have already answered the four critical questions in exercise of our jurisdiction under article 163(4)(b) of the Constitution… We may however not delve into the factual findings of the Trial Court and Court of Appeal…
Challenges of findings or conclusions on matters of fact by the trial court of competent jurisdiction after receiving, testing and evaluation of evidence does not bring up an appeal within the ambit of article 163(4)(a)”
105.
Of the twenty-four (24) grounds of appeal alluded to in paragraph 53, twenty (20) urge us to find that the learned Judges of the Court of Appeal “erred in law and fact” in arriving at the impugned judgment. All these grounds, though framed partly as matters of law, are not constitutional or matters of law but of fact, as we intend to demonstrate shortly.
106.
The duty to re-evaluate evidence is the function of a first appellate court as enunciated in the celebrated case of Selle v Associated Motor Boat Company Ltd [1968] EA 123. A first appellate court should accord deference to the trial Judge’s conclusions of fact and only interfere with those conclusions if it appears to it, either that the trial judge has failed to take into account any relevant facts or circumstances or based the conclusions on no evidence at all, or misapprehended the evidence, or acted on wrong principles in reaching the conclusions. (See also Nkube v Nyamuro [1983] KLR, 403-415, AT 403).
107.
Jurisdiction, we repeat, reveres judicial hierarchy so that
“
the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law” or we may add, matters of fact; “and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court”.
See Peter Oduor Ngoge v Francis Ole Kaparo & 5 others [supra].
We shall bear in mind these qualifications of the court’s jurisdiction as we consider each of the remaining six grounds.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/76/eng@2022-12-05
Petition (Application) E029 of 2022,Trattoria Limited v Maina & 3 others (Petition (Application) E029 of 2022) [2022] KESC 75 (KLR) (Civ) (25 November 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",27 November 2022,2022.0,Nairobi,Civil,Trattoria Limited v Maina & 3 others,[2022] KESC 75 (KLR),,"[1]
Upon reading the Notice of Motion by the applicant dated September 9, 2022 and filed onSeptember 14, 2022, brought pursuant to article 163 (4) (a) of the Constitution, section 23 (A) of the Supreme Court Act, 2011 as well as Rules 31 and 32 of the Supreme Court Rules, 2020 seeking orders that;
1.
Pending the inter-partes hearing and determination of the petition, this Honourable Court be pleased to issue an order staying the execution of the order of Certiorari issued on July 21, 2017 by the High Court in Petition No. 132 of 2014 as consolidated with Petition No. 129 of 2014, which quashed the approvals granted by the County Government of Nairobi for installation of water tanks, smoke extractor, L.P.G gas cylinder and cold storage installed at the fire exit at Town House, Nairobi on L.R No. 209/2362; and
[2]
Upon considering the grounds in support of the application and the averments contained in the supporting affidavit sworn by Gaetano Ruffo on September 9, 2022 wherein he contends that, following the judgment of the Court of Appeal delivered on July 22, 2022 affirming the decision of the High Court granting an order of Certiorari quashing the approvals granted by the 2nd respondent for the installation of water tanks, smoke extractor, L.P.G gas cylinders, and cold storage at Town House on Nairobi L.R No. 209/2362, the 1st respondent threatened to institute contempt proceedings against it for alleged failure to comply with the decree of the High Court dated July 5, 2018; and that the 1st respondent also confirmed that it had engaged the 2nd respondent with a view to removing from the said premises, the applicant’s L.P.G gas cylinder, water tanks, and smoke extractor; and","[7]
Having considered the application, responses, and submissions before us, we now opineas follows:
i.
In many instances, this court has addressed itself on the question whether its jurisdiction has been properly invoked under article 163(4)(a) of the Constitution. In that regard, we stated thus in Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & another SC Petition No 3 of 2012; [2012], eKLR :
“
This Article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court…
The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum.”
ii.
Also, we emphasized in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others SC Petition No. 10 of 2013 [2014] eKLR and Gatirau Peter Munya v Dickson Mwenda & 2 others SC Application No. 5 of 2014 [2014] eKLR that an appeal lies to this court under article 163(4)(a) if the issues placed before it revolved around the interpretation and application of the Constitution and that the interpretation or application of the Constitution had formed the basis for the determinations at the superior courts below this court and the same issue had therefore progressed through the normal appellate mechanism to reach this court.
iii.
We note in the above context that, the applicant’s case before the superior courts did not involve the interpretation and application of the Constitution. The gravamen of the applicant’s case before the said courts involved a tenant-landlord dispute concerning the approvals by the 2nd respondent to allow the applicant to store the L.P.G cylinder, water tanks, and cold room in what the 1st respondent alleged to be fire exits and fire assembly points. A perusal of the Judgment of the Court of Appeal would indeed show that at no point did it venture to address any constitutional question and the Judgment of the High Court, while involving some provisions of the Constitution, cannot be of benefit to the applicant as those issues are not presently before us.
iv.
In the circumstances, the applicant has not properly invoked this court’s jurisdiction under article 163 (4) (a) of the Constitution and following the principle enunciated in Lawrence Nduttu supra we must find that we lack jurisdiction to entertain its plea.
v.
The principles for grant of orders of stay was settled in Gatirau Peter Munya v. Dickson Mwenda & 2 others SC Appl. No. 5 of 2014 [2017] eKLR. In that case we held that in such applications, an applicant must satisfy this court that the appeal is arguable and not frivolous; that the appeal would be rendered nugatory if the stay orders are not granted and that it would be in the public interest to do so.
vi.
In Kenya Hotel Properties Limited v Attorney General & 5 others SC Application No 27 of 2020 [2020] eKLR, we furthermore observed:
“
Arguability of an appeal would entail this court looking at the record and the Petition of Appeal and determine, without finality but at a prima facie level, whether the appeal has substance and/or is not made of straw. It also entails interrogating its foundation and confirming that it is not built on quicksand.”
vii.
In Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission (Interested Party) (Petition 5 (E007) of 2021) [2021] KESC 22 (KLR) (Civ) (3 December 2021) (Ruling) we added thus:
“On the nugatory aspect, the concern is whether what is sought to be stayed if allowed to happen is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved.”
viii.
From the foregoing, it is our considered opinion that the application does not meet the criteria set for grant of orders of stay as enunciated in Gatirau Peter Munya (supra) because we lack the jurisdiction to entertain both the appeal and the application before us. Accordingly, we are not persuaded to grant the orders of stay because the appeal itself is founded on quick sand.
ix.
In addition, section 18 of the Supreme Court Act, 2011 grants this court the jurisdiction to make an order for summary dismissal of a petition where it is apparent on the face of it that it is wholly defective. Having found that this court lacks jurisdiction to entertain the appeal under article 163 (4) (a) of the Constitution, we find that the appeal lacks legal foundation. Consequently, we find that the Notice of Motion dated September 9, 2022 is not merited and is hereby dismissed for want of jurisdiction and the petition of appeal is also struck out for want of jurisdiction.
[8]
Having found the application unmeritorious, we order as follows:
a.
The Notice of Motion dated September 9, 2022 is hereby dismissed.
b.
The petition of appeal dated September 5, 2022 is hereby struck out for want of jurisdiction.
c.
The applicant shall bear the costs of this application.
[9]
It is so ordered.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/75/eng@2022-11-25
Petition 14 (E016) of 2022,Abdirahman v Mandera County Government & 5 others (Petition 14 (E016) of 2022) [2022] KESC 71 (KLR) (4 November 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",4 November 2022,2022.0,Nairobi,Civil,Abdirahman v Mandera County Government & 5 others,[2022] KESC 71 (KLR),,"Brief facts
The applicant filed the instant notice of motion application for orders that; the court grants leave for the applicant to withdraw the petition of appeal dated June 27, 2022 before the instant court and for costs to be in the cause. It was the applicant’s contention that having been aggrieved by the Court of Appeal’s ruling, he lodged both a petition of appeal and an application seeking stay of the impugned ruling to effectively conserve the substratum of the appeal which related to funds under the supplementary budget of Mandera County. The applicant averred that before the court could hear and issue orders, the funds had since been released and utilized by the respondents. Resultantly, proceeding to hear the application and petition of appeal would be a waste of precious and scarce judicial resources. 
The applicant further claimed that since pleadings were never served upon any of the respondents, the latter stood to suffer no prejudice if it was withdrawn with no orders as to costs and that it was in the interest of justice to do so. No party had filed a response to the petition of appeal and the application dated June 27, 2022 seeking conservatory relief save for the 2nd respondent who filed a notice of preliminary objection. 
Issues","[8]
In the circumstances, we make the following orders:
(a)
The notice of motion dated July 22, 2022 and filed on July 26, 2022 seeking to withdraw the petition of appeal dated June 27, 2022 and filed on June 28, 2022 be and is hereby allowed.
(b)
Each party shall bear its costs thereof.
Orders accordingly.",Allowed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/71/eng@2022-11-04
Petition 16 (E019) of 2022,Abote v Kawaka & 4 others (Petition 16 (E019) of 2022) [2022] KESC 69 (KLR) (Civ) (4 November 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",4 November 0202,2022.0,Nairobi,Civil,Abote v Kawaka & 4 others,[2022] KESC 69 (KLR),,"Brief facts
The applicant filed the instant notice of motion application for orders that; the court grants leave for the applicant to withdraw the petition of appeal dated June 27, 2022 before the instant court and for costs to be in the cause. It was the applicant’s contention that having been aggrieved by the Court of Appeal’s ruling, he lodged both a petition of appeal and an application seeking stay of the impugned ruling to effectively conserve the substratum of the appeal which related to funds under the supplementary budget of Mandera County. The applicant averred that before the court could hear and issue orders, the funds had since been released and utilized by the respondents. Resultantly, proceeding to hear the application and petition of appeal would be a waste of precious and scarce judicial resources. 
The applicant further claimed that since pleadings were never served upon any of the respondents, the latter stood to suffer no prejudice if it was withdrawn with no orders as to costs and that it was in the interest of justice to do so. No party had filed a response to the petition of appeal and the application dated June 27, 2022 seeking conservatory relief save for the 2nd respondent who filed a notice of preliminary objection. ","[8]
In the circumstances, we make the following orders:
(a)
The notice of motion dated July 22, 2022 and filed on July 26, 2022 seeking to withdraw the petition of appeal dated June 27, 2022 and filed on June 28, 2022 be and is hereby allowed.
(b)
Each party shall bear its costs thereof.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/69/eng@2022-11-04
Petition 21 (E024) of 2022,Abote v Kawaka & 4 others (Petition 21 (E024) of 2022) [2022] KESC 70 (KLR) (4 November 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",4 November 0202,2022.0,Nairobi,Civil,Abote v Kawaka & 4 others,[2022] KESC 70 (KLR),,"Upon perusing the petitioner’s notice of withdrawal of application and petition dated 6th October, 2022 and filed on 7th October, 2022 seeking to withdraw the application and the petition both dated 3rd August, 2022; and
2.
Notingthe court’s order of 18th October, 2022 (Lenaola SCJ) wherein the notice of motion dated 3rd August, 2022 was allowed, marking the matter as withdrawn leaving the single issue of costs to be determined by the court;
3.
Further notingthe court’s directions of 11th October, 2022 for parties to file submissions on the issue of costs whereat only the petitioner and the 4th and 5th respondents filed submissions on the issue, counsel for the 3rd respondent having in an earlier appearance before the Honourable Registrar on 8th August 2022 indicated that the 3rd respondent would not file any submissions and would abide by the decision of the court; and","11.Consequently, the appeal having been withdrawn on 18th October, 2022, we make no order as to costs. Orders accordingly.",Court issues further directions,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/70/eng@2022-11-04
Petition (Application) 13 (E019) of 2020,Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition (Application) 13 (E019) of 2020 & Petition 18 of 2020 (Consolidated)) [2022] KESC 68 (KLR) (4 November 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",4 November 0202,2022.0,Nairobi,Civil,Kenya Railways Corporation & 2 others v Okoiti & 3 others,[2022] KESC 68 (KLR),,"1.
Uponreading the notice of motion application filed by the 1st petitioner dated June 6, 2022 and filed on June 23, 2022 pursuant to article 159 (2) of the Constitution, Rule 3(5) and Rule 13 (1) of the Supreme Court Rules, 2020 and Rule 12 & 17 (b) of the Supreme Court (General) Practice Directions, 2020 seeking the court to strike out and expunge from the record the 1st respondent’s replying affidavit sworn on May 17, 2022, submissions dated May 18, 2022 and May 26, 2022 and the 1st and 2nd respondents’ cross-appeal dated August 10, 2020; and
2.
Upon reading the supporting affidavit sworn on June 6, 2022 by the 1st petitioner’s Acting Corporation Secretary, Mr. Stanley Gitari; and","11.
Havingcarefully considered the 1st petitioner and 1st respondent’s notice of motion applications, responses and submissions by the respective parties, we find as follows:
a.
The 1st petitioner’s application dated June 6, 2022 is allowed only to the extent that the 1st respondent’s replying affidavit dated May 17, 2022 is struck off.
b.
The 1st respondent’s application dated July 5, 2022 is dismissed.
c.
There shall be no order as to costs.
12.
It is so ordered.",Allowed in part ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/68/eng@2022-11-04
Petition (Application) 21 (E023) of 2020,Member of Parliament for Mbalambala Constituency v Abdi & 7 others (Petition (Application) 21 (E023) of 2020) [2022] KESC 73 (KLR) (4 November 2022) (Ruling),Ruling,Supreme Court,Supreme Court,I Lenaola,4 November 0202,2022.0,Nairobi,Civil,Member of Parliament for Mbalambala Constituency v Abdi & 7 others,[2022] KESC 73 (KLR),,"UPON considering the Notice of Motion dated 31st January 2022 brought pursuant to Rules 18(6) and (7) of the Supreme Court Rules, 2020, in which counsel for the 6th respondent seeks leave of this court to cease acting for the respondent aforesaid; and
2.
UPON reading the supporting affidavit in support of the Motion sworn by Mansour Muathe Issa, Advocate on 31st January 2022 and considering the grounds in support therein, mainly that his client has ceased contact and that despite several reminders the 6th respondent has failed to give him proper instructions and he is, therefore, unable to proceed with the hearing of the Petition on 10th November 2022; and","5.
Accordingly, I now make the following Orders:
i.
The Notice of Motion dated 31st January 2022 be and is hereby allowed and M/S Issa & Co Advocates, are hereby granted leave to cease acting for the 6th Respondent.
ii.
The 6th Respondent shall pay the costs thereof.
6.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/73/eng@2022-11-04
Application 3 (E008) of 2022,Mombasa Bricks & Tiles Ltd & 5 others v Shah & 7 others (Application 3 (E008) of 2022) [2022] KESC 72 (KLR) (4 November 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",4 November 0202,2022.0,Nairobi,Civil,Mombasa Bricks & Tiles Ltd & 5 others v Shah & 7 others,[2022] KESC 72 (KLR),,"Brief facts
The 1st - 4th applicants and the 5th and 6th applicants filed two applications both dated July 22, 2022 wherein they sought among others, orders; that pending the hearing and determination of the application inter- parties, the court to stay the ruling, certification, and order issued on July 8, 2022 and any further progression of the main appeal arising from the ruling in Supreme Court Application No. 3 (E008) of 2022; and that the court reviews and/or set aside its ruling of July 8, 2022 in Supreme Court Application No. 3 (E008) of 2022.
The applicants argued that on May 23, 2022, the Deputy Registrar gave directions that the preliminary objection was to be heard and determined first vacating and superseding prior directions given and that by the ruling delivered on July 8, 2022, the court proceeded to determine the preliminary objection as well as the substantive application by the respondents’ seeking review of the decision of the Court of Appeal denying certification, and the application for leave to file a supplementary affidavit to produce a notice of appeal; hence condemning the applicants unheard. The applicants further argued that the court had not taken directions for the applications since the directions issued on May 23, 2022 were limited to the preliminary objection.","11.
We further opine that section 21(4) of the Supreme Court Act as read with rule 28(5) of the Supreme Court Rules and following our decisions in Fredrick Otieno Outa v Jared Odoyo Okello, SC Petition No 6 of 2014; [2017] eKLR and in Musembi & 13 other (Suing on their own behalf and on behalf of 15 residents of Upendo City Cotton village at South C Ward, Nairobi) v Moi Educational Centre Co Ltd & 3 others (Application EO19 of 2021) [2022] KESC 19 (KLR) (Civ)(19 May 2022) (Ruling)), the applicants have not met the threshold for review of the court’s decision. There is no exceptional circumstance, error apparent on the record, illegality, fraud or deceit to warrant such a decision. Alleged violation of the right to be heard and fair trial as submitted by the applicants, which allegation we dismiss in any event, does not satisfy the criteria for exceptional circumstance to warrant a review of our ruling.
12.
For These reasons, we inevitably conclude that the two notice of motion applications lack merit in their entirety and are for disallowing. As for costs, it is only prudent that we defer the costs to follow the ultimate outcome of the appeal. As we previously noted, the matter is one that requires expedited disposal.
13.
Consequently, we make the following orders:
i.
The notice of motion dated July 22, 2022 filed by the 1st to 4th applicants be and is hereby disallowed.
ii.
The notice of motion dated July 22, 2022 filed by the 5th and 6th applicants be and is hereby disallowed.
iii.
The costs of this application to abide the outcome of the appeal.",Dismissed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/72/eng@2022-11-04
Petition (Application) 15 (E022) of 2021,Muthuuri & 4 others v Attorney General & 2 others (Petition (Application) 15 (E022) of 2021) [2022] KESC 74 (KLR) (4 November 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",4 November 0202,2022.0,Nairobi,Civil,Muthuuri & 4 others v Attorney General & 2 others,[2022] KESC 74 (KLR)               ,,"Brief facts
The applicant filed the instant application seeking among others the enlargement time within which they should file a supplementary record of appeal. It was their argument that the record of appeal arising from the judgment and order of the Court of Appeal in Nairobi Civil Appeal No. 352 of 2019 dated September 23, 2021 was incomplete as the duly sealed notice of appeal and order appealed from had not been filed. It was further their contention that on September 28, 2021 an application was made for the certified copy of the order arising from that judgment, however, they were directed to comply with the requirements of rule 34 of the Court of Appeal Rules, 2010, which they did by forwarding the draft order to the respondents on September 29, 2021 for approval. 
In the absence of approval or response from the respondents, the applicants applied for settlement of the order culminating to the issuance of the notice of appeal by the Court of Appeal on January 26, 2022. The applicants further contended that the certified order dated September 23, 2021 was issued following further follow up efforts resulting in the filing of the instant application. The respondents argued that the delay was evidently inordinate and offended the principle that there should be an end to litigation and that they would suffer irreparable loss if the orders sought were granted. 
Issues
Whether delays caused by courts’ administrative processes to the detriment of a party seeking to file a supplementary record of appeal could be visited upon such a party.
What were the principles for grant of an order of extension of time to file a supplementary record of appeal?
Held
Under rule 15(2) of the Supreme Court Rules, 2020, the court had unfettered discretionary powers to extend the time limited by the Rules or by any of its decisions and any person intending to appeal to the court was required by rule 31(1) of the Rules to file the notice of appeal within fourteen days from the date of the decision intended to be challenged.
From the record, after judgment of the Court of Appeal was rendered on September 23, 2021, the applicants applied for a certified copy of the same on September 28, 2021. The applicant’s follow up efforts preceding the issuance of the order were not disputed by the respondents. Delays caused by court’s administrative processes to the detriment of a party could not be visited upon such a party because such a delay was beyond a party’s reach.
The principles for grant of an order of extension of time were that an applicant had to give sufficient reasons for any delay and that the period of delay was nonetheless an important consideration in the court’s exercise of discretion to grant or deny the extension.
In spite of the respondents’ argument that the applicants ought to have followed up physically at the registry, the application met the threshold of extension of time as the delay of two months in the instant matter was not inordinate as it was sufficiently explained, and it was not occasioned by the applicant but by the court. That explanation was reasonable and there was no prejudice to be occasioned to the respondents.
","Upon perusing the notice of motion application dated June 24, 2022 and filed physically and electronically and on July 20, 2022 and June 27, 2022 respectively pursuant to articles 159(2)(d) of the Constitution of Kenya, sections 1A, 1B and 3A of the Civil Procedure Act, rules 15(2) and 38(1)(a) of the Supreme Court Rules, 2020 and all other enabling provisions of the law, we note that the applicants seek the following orders:
1.
That this application be certified urgent and service thereof be dispensed with in the first instance.
2.
That this honourable court be pleased to enlarge time within which the petitioners/applicants should file a supplementary record of appeal being duly sealed notice of appeal dated September 28, 2021 and certified copy of Order dated September 23, 2021 in terms of the draft annexed hereto;
2.
Upon perusing the grounds on the face of the application; the supporting affidavit sworn on June 24, 2022 by Evans Muriuki Muthuuri; and submissions dated July 19, 2022, it is the applicants’ argument that the record of appeal dated October 28, 2021 filed on even date arising from the judgment and order of the Court of Appeal in Nairobi Civil Appeal No 352 of 2019 dated September 23, 2021is incomplete as the duly sealed notice of appeal and order appealed from have not been filed. It is their contention that on September 28, 2021 an application was made for the certified copy of the order arising from the said judgment; however, they were directed to comply with the requirements of rule 34 of the Court of Appeal Rules 2010 which they did by forwarding the draft order to the respondents on September 29, 2021 for approval. In the absence of approval or response from the respondents, the applicants applied for settlement of the order culminating to the issuance of the Notice of Appeal by the Court of Appeal on January 26, 2022;
3.
Upon considering the applicants’ contention that the certified order dated September 3, 2021 was issued following further follow up efforts resulting in the filing of the present application. They affirm that their application is merited and should be allowed as the delay was caused by factors beyond their control as held by this court in Geo Chem Middle East v Kenya Bureau of Standards SC Petition (Application) No 47 of 2017 [2020] eKLR; and
4.
Upon perusing the written submissions dated August 1, 2022 and filed on August 4, 2022 on behalf of the respondents and the replying affidavit by Silas Oloo Mc’Opiyo, acting Chief Executive Officer (CEO) of the 2nd respondent, sworn on August 1, 2022 and filed on August 4, 2022 wherein he depones that the applicants having learnt of the ruling on April 20, 2022, ought to have physically followed up with the court registry within reasonable time rather than waiting for two months and following the same via email. It is their other argument that the applicants are not eager to have the said appeal determined as they are dragging their feet in filing the record of appeal considering no reasonable explanation has been rendered. Hence, the delay is evidently inordinate and offends the principle that there should be an end to litigation as held by the Court of Appeal in the case of Aviation Cargo Support Limited v St Mark Freight Services Limited [2014] eKLR; and, they allege that they would suffer irreparable loss if the orders sought herein are granted
5.
Noting that the court under rule 15(2) of the Supreme Court Rules 2020 has unfettered discretionary powers to extend the time limited by the rules or by any of its decisions; and any person intending to appeal to the court is required by rule 31(1) of the Supreme Court Rules, 2020 to file the notice of appeal within fourteen days from the date of the decision intended to be challenged; and
6.
Noting further from the record that after judgment of the Court of Appeal was rendered on September 23, 2021, the applicants applied for a certified copy of the same on September 28, 2021; and that the applicant’s follow up efforts preceding the issuance of the order are not disputed by the respondents; and that delays caused by court’s administrative processes to the detriment of a party cannot be visited upon such a party because such a delay is beyond a party’s reach,
7.
We reiterate our finding in the case of Hassan Nyanje Charo v Khatib Mwashetani & 3 others Application No 15 of 2014 [2014] eKLR that it would not be in the interests of justice to turn away an applicant who has prima facie exercised all due diligence in pursuit of their cause but is impeded by the slow-turning wheels of court’s administrative machinery; and the guiding principles set out in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others SC Application No 16 of 2014 [2014] eKLR as well as the case of Base Titanium Limited v County Government of Mombasa & another SC Petition (App) No 22 of 2018 which was echoed in GEO Chem Middle East v Kenya Bureau of Standards (supra) where we held that the principles for grant of an order of extension of time are that an applicant must give sufficient reasons for any delay and that the period of delay is nonetheless an important consideration in the court’s exercise of discretion to grant or deny the extension;
8.
We opine that in spite of the respondents’ argument that the applicants ought to have followed up physically at the registry, we are satisfied that the application meets the above threshold as the delay of two months in this matter is not inordinate as the delay is sufficiently explained, and it was not occasioned by the applicant but by the court. We find that this explanation is reasonable and we see no prejudice to be occasioned to the respondents. Accordingly, we conclude that the application is meritorious and is to be allowed. As for costs, we note that the parties are still engaged in litigation before the court, it is only prudent that we defer the costs to follow the ultimate outcome of the appeal.
9.
Consequently, we make the following orders:
i.
The notice of motion dated June 24, 2022 and filed electronically and physically on June 27, 2022 and July 20, 2022 respectively be and is hereby allowed.
ii.
The costs of this application to abide the outcome of the appeal.
It is so ordered.
1.
Upon perusing the notice of motion application dated June 24, 2022 and filed physically and electronically and on July 20, 2022 and June 27, 2022 respectively pursuant to articles 159(2)(d) of the Constitution of Kenya, sections 1A, 1B and 3A of the Civil Procedure Act, rules 15(2) and 38(1)(a) of the Supreme Court Rules, 2020 and all other enabling provisions of the law, we note that the applicants seek the following orders:
1.
That this application be certified urgent and service thereof be dispensed with in the first instance.
2.
That this honourable court be pleased to enlarge time within which the petitioners/applicants should file a supplementary record of appeal being duly sealed notice of appeal dated September 28, 2021 and certified copy of Order dated September 23, 2021 in terms of the draft annexed hereto;
2.
Upon perusing the grounds on the face of the application; the supporting affidavit sworn on June 24, 2022 by Evans Muriuki Muthuuri; and submissions dated July 19, 2022, it is the applicants’ argument that the record of appeal dated October 28, 2021 filed on even date arising from the judgment and order of the Court of Appeal in Nairobi Civil Appeal No 352 of 2019 dated September 23, 2021is incomplete as the duly sealed notice of appeal and order appealed from have not been filed. It is their contention that on September 28, 2021 an application was made for the certified copy of the order arising from the said judgment; however, they were directed to comply with the requirements of rule 34 of the Court of Appeal Rules 2010 which they did by forwarding the draft order to the respondents on September 29, 2021 for approval. In the absence of approval or response from the respondents, the applicants applied for settlement of the order culminating to the issuance of the Notice of Appeal by the Court of Appeal on January 26, 2022;
3.
Upon considering the applicants’ contention that the certified order dated September 3, 2021 was issued following further follow up efforts resulting in the filing of the present application. They affirm that their application is merited and should be allowed as the delay was caused by factors beyond their control as held by this court in Geo Chem Middle East v Kenya Bureau of Standards SC Petition (Application) No 47 of 2017 [2020] eKLR; and
4.
Upon perusing the written submissions dated August 1, 2022 and filed on August 4, 2022 on behalf of the respondents and the replying affidavit by Silas Oloo Mc’Opiyo, acting Chief Executive Officer (CEO) of the 2nd respondent, sworn on August 1, 2022 and filed on August 4, 2022 wherein he depones that the applicants having learnt of the ruling on April 20, 2022, ought to have physically followed up with the court registry within reasonable time rather than waiting for two months and following the same via email. It is their other argument that the applicants are not eager to have the said appeal determined as they are dragging their feet in filing the record of appeal considering no reasonable explanation has been rendered. Hence, the delay is evidently inordinate and offends the principle that there should be an end to litigation as held by the Court of Appeal in the case of Aviation Cargo Support Limited v St Mark Freight Services Limited [2014] eKLR; and, they allege that they would suffer irreparable loss if the orders sought herein are granted
5.
Noting that the court under rule 15(2) of the Supreme Court Rules 2020 has unfettered discretionary powers to extend the time limited by the rules or by any of its decisions; and any person intending to appeal to the court is required by rule 31(1) of the Supreme Court Rules, 2020 to file the notice of appeal within fourteen days from the date of the decision intended to be challenged; and
6.
Noting further from the record that after judgment of the Court of Appeal was rendered on September 23, 2021, the applicants applied for a certified copy of the same on September 28, 2021; and that the applicant’s follow up efforts preceding the issuance of the order are not disputed by the respondents; and that delays caused by court’s administrative processes to the detriment of a party cannot be visited upon such a party because such a delay is beyond a party’s reach,
7.
We reiterate our finding in the case of Hassan Nyanje Charo v Khatib Mwashetani & 3 others Application No 15 of 2014 [2014] eKLR that it would not be in the interests of justice to turn away an applicant who has prima facie exercised all due diligence in pursuit of their cause but is impeded by the slow-turning wheels of court’s administrative machinery; and the guiding principles set out in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others SC Application No 16 of 2014 [2014] eKLR as well as the case of Base Titanium Limited v County Government of Mombasa & another SC Petition (App) No 22 of 2018 which was echoed in GEO Chem Middle East v Kenya Bureau of Standards (supra) where we held that the principles for grant of an order of extension of time are that an applicant must give sufficient reasons for any delay and that the period of delay is nonetheless an important consideration in the court’s exercise of discretion to grant or deny the extension;
8.
We opine that in spite of the respondents’ argument that the applicants ought to have followed up physically at the registry, we are satisfied that the application meets the above threshold as the delay of two months in this matter is not inordinate as the delay is sufficiently explained, and it was not occasioned by the applicant but by the court. We find that this explanation is reasonable and we see no prejudice to be occasioned to the respondents. Accordingly, we conclude that the application is meritorious and is to be allowed. As for costs, we note that the parties are still engaged in litigation before the court, it is only prudent that we defer the costs to follow the ultimate outcome of the appeal.
9.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/74/eng@2022-11-04
Petition 22 of 2017,County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested Party) (Petition 22 of 2017) [2022] KESC 66 (KLR) (28 October 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",28 October 2022,2022.0,Nairobi,Civil,County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission,[2022] KESC 66 (KLR)               ,,"A. Introduction
1.
Before the court is a petition of appeal dated December 22, 2017 and filed on even date by the appellant, the County Assemblies Forum. The appeal challenges the entire judgment and decree of the Court of Appeal dated November 10, 2017, made in Nairobi Civil Appeal No 147 of 2017, The Hon Attorney General and another v Andrew Kiplimo Sang Muge, The County Assembly Forum & another (Waki Nambuye & Ouko, JJA).
","F. Analysis and Determination
i. Whether this court is clothed with the requisite jurisdiction to determine this appeal?
49.
This court must address itself on whether it has jurisdiction before proceeding to determine a matter. More so, where the jurisdiction has been challenged. The 2nd respondent asserts that first, pursuant to article 2(3) of the Constitution, no court of law is ordained with jurisdiction to entertain a petition that explicitly or implicitly challenges the validity of a constitutional provision. Second, that the appellant has failed to crystallize with reasonable degree of precision the alleged violation and the manner of infringement. Third, that the issue before the court is an election dispute contemplated under article 87 of the Constitution and as such should have been commenced by way of an Election Petition. The 2nd respondent relies on this court’s decision in Moses Mwicigi & 14 others v Independent Electoral and boundaries Commission & 5 others [2016] eKLR where this court found that contest to an election in any manifestation ought to be by way of an election petition.
50.
Fourth, that the dispute between the appellant and the respective county assemblies is an employment dispute, which jurisdiction is vested exclusively in the Employment and Labour Relations Courts pursuant to article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, No 20 of 2011. It is also contended that the issue of compensation of income for the eight-month gap can only be considered by the Salaries and Remuneration Commission pursuant to article 230 of the Constitution as it is the body mandated to inquire and advise on any salaries and remuneration to be paid out of public funds.
51.
The court’s appellate jurisdiction is set out in article 163(4) of the Constitution, in the following terms:
“
Appeals shall lie from the Court of Appeal to the Supreme Court;
a.
as of right in any case involving the interpretation or application of this Constitution; and
b.
in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)”
52.
So as to bring the appeal as of right pursuant to article 163(4)(a) of the Constitution, it must be demonstrated that the issues of contestation revolved around the interpretation or application of the Constitution. It is the interpretation or application of the Constitution by the Court of Appeal that forms the basis of a challenge to this court. So that, where the dispute has nothing or little to do with the interpretation or application of the Constitution, this court under article 163(4)(a) will have no jurisdiction to entertain an appeal brought under that provision.
53.
In the Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another Sup Ct Petition No 3 of 2012; [2012] eKLR, we delineated this court’s jurisdiction under article 163(4)(a) of the Constitution as follows:
“...This article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court. The only other instance when an appeal may lie to the Supreme Court is one contemplated under article 163(4)(b) of the Constitution. Towards, this end, it is not the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application.
(28)
The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a).”
54.
We reiterated these principles in the cases Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013 [2014] eKLR and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC App No 5 of 2014 [2014] eKLR. It is against this background that we examine whether the petition raises issues of Constitutional interpretation or application.
55.
We note that the appellant in its petition of appeal invites the court to interpret the provisions of articles 177(1) and 177(4) of the Constitution of Kenya. More specifically, the court is asked to find that there exists a conflict between the two constitutional provisions and if so, whether MCAs elected on March 4, 2013 were entitled to compensation for their term having been cut short by a period of eight (8) months, due to the subsequent elections being held on August 8, 2017. We are of the view that it is evident that this was not a mere electoral dispute arising from or touching on an election as contended by the 2nd respondent. Having perused the record we take cognizance of the fact that the foregoing are the central questions that were canvassed in the superior courts and progressed through the normal appellate mechanism so as to reach this court by way of an appeal. That being so, we are inclined to agree with the trial court that joinder of the Salaries and Remuneration Commission was unnecessary as the issues before Court are not on the amount of compensation to be paid to the MCAs for services rendered. Rather, they include questions of interpretation of articles 177(1) and 177(4) as well as whether MCAs are entitled to damages for the reduced term in office as a consequence of the election date in 2017.
56.
On the question of appropriate forum of the dispute, the trial court found that the question of enforcement of rights and fundamental freedoms even touching on the employment and labour is within the competence of the High Court pursuant to article 22. We are inclined to agree with the trial court and add that articles 23 and 165 of the Constitution fortifies this position as they are the provisions that gives the High Court jurisdiction to hear and determine applications for redress of denial, violation or infringement of rights or fundamental freedoms in the Bill of Rights.
57.
Consequently, we come to the conclusion that the appeal falls squarely within the ambit of article 163(4)(a) and that we have jurisdiction to entertain this appeal.
ii.The interpretation of articles 177(1) and 177(4) of the Constitution; and whether there is a conflict between the said provisions vis-à-vis the date of the second general elections of MCAs under the Constitution.
58.
Article 177(1) and (4) of the Constitution provides as follows:
“
Membership of county assembly
(1)
A county assembly consists of—
(a)
members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;
………..
(4)
A county assembly is elected for a term of five years.”
[Emphasis added]
59.
The first general elections under the Constitution were held on March 4, 2013 wherein the MCAs subject of this matter were elected. Thereafter, on December 10, 2015 the 2nd respondent declared that the second general elections would be held on August 8, 2017. It is this declaration that aggrieved the MCAs who believed that the date in question was contrary to the provisions of the Constitution; and more particularly articles 177(4) of the Constitution which stipulates the term of County Assemblies as five (5) years.
60.
The appellant submits that pursuant to the principle of supremacy of the Constitution as well as harmonious interpretation, article 177(4) warrants enforcement and application like other constitutional provisions. They argue that, article 177(4) provides that the term of MCAs is five years therefore holding of the elections irregularly cut short the term in office of MCAs elected on March 4, 2013.
61.
The 1st respondent agrees with the harmonious principle of interpretation but argues that after promulgation of the Constitution, there was to be transition which resulted in the first election being held on March 4, 2013. The 1st respondent further asserts that it was due to the transition that the MCAs term in office ended up being shorter than the five years, taking into account that the second elections were held on August 8, 2017. It is however urged that after transition, the general elections reverted to the date stipulated in articles 101(1), 102(2), 136(2)(a), 177(1) and 180(1), being the second Tuesday in August in every fifth year. It is for this reason that the 2nd respondent contends that the appellant is precluded from claiming for loss of income or legitimate expectation where the same has been occasioned by the Constitution.
62.
The 3rd respondent on the other hand argues that this line of argument is flawed in light of the transitional provision is clause 2(3) of the sixth schedule of the Constitution
63.
Article 2(3) stipulates that the validity or legality of the Constitution is not subject to challenge by or before any court or other state organ. We also take cognizance of the fact that the Court of Appeal was not determining the constitutionality or otherwise of articles 177(1) and (4) of the Constitution, only on the interpretation and application as regards the context of the present case. We say this, because to purport to question the validity of a constitutional provision is to question the very foundation of authority of the courts is not only contra article 2(3) but also against the will of the people of Kenya.
64.
Article 259 of the Constitution then gives the approach to be adopted in construing it which is
“in a manner that—
a.
promotes its purposes, values and principles;
b.
advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
c.
permits the development of the law; and
d.
contributes to good governance.
(2)
……
(3)
Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking….”
65.
By this provision therefore, the Constitution calls for its holistic interpretation. This has been our consistent determination in the court’s various decisions. In the case of In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, SC Advisory Opinion No 2 of 2012 [2012] eKLR we stated that the court as “a custodian of the integrity of the Constitution as the country’s charter of governance, is inclined to interpret the same holistically, taking into account its declared principles, and to ensure that other organs bearing the primary responsibility for effecting operations that crystallize enforceable rights, are enabled to discharge their obligations, as a basis for sustaining the design and purpose of the Constitution.”
66.
We reiterated this in In the Matter of Kenya National Commission on Human Rights SC Reference 1 of 2012 [2014] eKLR where we found that holistic interpretation of the Constitution means “interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.” [Emphasis added]
67.
It is for this reason that we agree with the submissions that no constitutional provision is more superior to the other. They all rank equally and must be all be interpreted and applied together to give them their full tenor and meaning. We are further guided by article 2(1) and (3) of the Constitution which provide for the supremacy of the Constitution over other laws and thereby its validity and legality are not subject to challenge by or before any court or other State organ.
68.
We take cognizance of the fact that the Constitution is very consistent in the date of the general elections in various articles other than article 177(1).
The election date is predicated on the election of MPs which is provided for under article 101(1) as follows:
“
101.
Election of Members of Parliament
(1)
A general election of Members of Parliament shall be held on the second Tuesday in August in every fifth year.”
On the elections for the position of the President and County Governors articles 136(2)(a) and 180(1) of the Constitution provide as follows:
136 2(a)
An election of the President shall be held— on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;
…
180 (1)
The county governor shall be directly elected by the voters registered in the county, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.”
69.
We note that the designated date for general elections is not a set date but rather the second Tuesday in August, in every fifth year. Further, the Constitution provides that all elections for the positions of President, Governor, Senator, MPs and MCA must be held on the day. This much is clear without much contest.
70.
The Country held its third general elections in 2022 since promulgation of the Constitution on August 27, 2010. The 2017 general elections were held on August 8, 2017. While the 2022 general elections were held on August 9, 2022, thereby fulfilling the requirement of holding general elections every five years. It is for this reason that from the outset, we are clear in our view, that there does not exist a conflict between articles 177(4) and 177(1) of the Constitution, apparent or otherwise. If the two were to be put side by side, they can both be given effect at the same time as demonstrated by the continued election cycle.
71.
Having found that there is no conflict in the Constitutional provision of article 177(1) and (4), we must turn to why the Appellant is now before the court. More specifically, why the second general elections are alleged to have failed to follow the constitutional command in articles 177(1) and (4) with regard to the MCA’s term in office following the first general elections of 2013.
72.
After promulgation of the Constitution on August 27, 2010, the first general elections in the Country were held on March 4, 2013. This date was subject to litigation in in John Harun Mwau & 3 others v Attorney General & 2 others [2012] eKLR and confirmed by the Court of Appeal in Centre for Human Rights Education and Awareness & 2 others v John Harun Mwau [2012] eKLR.
73.
The first elections under the Constitution were significant in the history of the country as we were shifting from the old constitutional order to the new one. In that period of transition, we were also shifting from the old way of carrying out Elections to the new method under the Constitution 2010. We were also, establishing a two-tier form of government, with the founding of the County Governments alongside County Assemblies. We are minded to reiterate the words of this court in Speaker of the Senate & another v Attorney General & 4 others, Sup Ct Advisory Opinion No 2 of 2013; [2013] eKLR as follows:
“
[160]
_The Constitution of 2010 was a bold attempt to restructure the Kenyan State. It was a radical revision of the terms of a social contract whose vitality had long expired and which, for the most part, was dysfunctional, unresponsive, and unrepresentative of the peoples’ future aspirations_. The success of this initiative to fundamentally restructure and reorder the Kenyan State is not guaranteed. It must be nurtured, aided, assisted and supported by citizens and institutions. This is why the Supreme Court Act imposes a transitional burden and duty on the Supreme Court. Indeed, constitutional relapses occur in moments of social transition, when individual or institutional vigilance slackens.
[161]
The Supreme Court has a restorative role, in this respect, assisting the transition process through interpretive vigilance. The courts must patrol Kenya’s constitutional boundaries with vigor, and affirm new institutions, as they exercise their constitutional mandates, being conscious that their very infancy exposes them not only to the vagaries and fragilities inherent in all transitions, but also to the proclivities of the old order.” [Emphasis added]
74.
Significant to the case before us was the fact that as a country, we were shifting from an unpredictable election date which was anchored in section 59 of the repealed Constitution. The election date, though it had an outer limit of five years pursuant to section 59(4), was pegged on the dissolution of Parliament by the President.
75.
It is this unpredictability that the Constitution of Kenya Review Commission (CKRC) in its Final Report of 2005 noted as one of the specific concerns by the people of Kenya. The Commission highlighted that the people did not want the President to have the power to determine the election dates. They wanted to see a more predictable, transparent and efficient system. It is for this reason that the Commission recommended that the general elections should be held on the first Tuesday of the second full week of August after every five years. Just like the Court of Appeal, we have also not found debate, discussion or rationale that informed the choice of date other than to accommodate the various religious groups. However, what is clear is that the intention of the framers of the Constitution was to remove the control the President had over the election date.
76.
The framers of the Constitution achieved this predictability of the election date by entrenching in articles 101(1), 136 (2), 177(1) and 180(1) that the general elections would be held on the same date for all the elective positions. They went a step further and designated the date to be “the second Tuesday in August, in every fifth year.”
77.
The first general elections following promulgation of the Constitution were held on March 4, 2013. This date was arrived at following the decision by the Court of Appeal in Center for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] eKLR when it held as follows;
“
The result of the decision of the majority is that the order No 2(b) of the High Court that the elections shall be held upon the expiry of the term of the 10th Parliament on the 5th Anniversary of the day it first sat which is designated by Legal Notice No 1 of 2008 as January 15, 2008 and the term therefore expired on January 14, 2013 and the election shall be held within sixty days of 15th January, 2013 is confirmed.”
78.
We agree with the appellant’s submissions that this case is distinguishable from the present dispute as the main issue in contention therein was the first general election and not subsequent elections. We also agree that the courts therein were not called upon to make a determination on harmonizing the terms of office of MCAs pursuant to article 177(1) and (4) contrasted with other elective posts.
79.
Turning back to the present case, we note that the date of the first elections, March 4, 2013, was informed by the transition clauses of the Constitution. More specifically, section 9(1) of the sixth schedule of the Constitution which provided that the first elections under the Constitution were to be held within sixty days after the dissolution of the National Assembly. Vide Legal Notice No 1 of 2008, the term of the National Assembly commenced on January 15, 2008 and ended on January 14, 2013. Hence, sixty days later, was March 4, 2013, achieving the first hurdle in transitioning the elections of the country from the old constitutional dispensation to the new.
80.
In the case of Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others, SC Petition Nos 13 A, 14 & 15; of 2013 [2014] eKLR this court endorsed the depiction of the transitional concept by Lady Justice Sichale at the Court of Appeal in that appeal (Civil Appeal No 308 of 2012), as follows:
“When a new Constitution is introduced, a range of provisions [is] needed to ensure that the move from the old order to the new order is smooth and, in particular, …the changes expected by the new Constitution are
…effectively [implemented] [so as to sustain] [the] institutions that are retained under the new Constitution…. [Su ch] transitional provisions…are usually not included in the body of the Constitution because they have a temporary lifespan. Instead they are included in a schedule which is part of the Constitution but, because it is appended at the end….its provisions will not interfere with the permanent provisions of the Constitution in the future.”[Emphasis added]
81.
The transitional provisions of sixth schedule were only for a limited period of time and once they served their purpose, the nation reverted to the permanent provisions of the Constitution. On General Elections, we reverted to the date stipulated in articles 101(1), 102(1), 136 (2)(a), 177(1)(a) and 180(1). This was such that, after the first general elections was held, IEBC then had a constitutional duty to apply these provisions of the Constitution with regard to the future elections.
82.
This was not a simple duty, as IEBC had to decide between holding the elections in August of 2018, five years after 2013 or alternatively in August of 2017. IEBC elected to hold the second general elections on August 8, 2017. As has been evident throughout these proceedings, this date fell short of the five- year mark by eight (8) months. This was not just for the MCAs but for all elective positions.
83.
Perhaps what informed IEBC’s decision regarding the said election date in 2017, was to ensure the terms in office for all elected officials would not fall outside the constitutionally stipulated five years. Holding the election in August 2018 would have meant that the term in elective office for all officials would have been over and above the five-year timeline by approximately five months. We can infer that IEBC was trying to avoid generating a gap whereby the holders of the various elective offices would either not be legally in office, or if they elected to go home, then the elective offices would be vacant for eight months. The ramifications of such scenarios were far greater than that the office of the MCAs, as it cut across all elective positions. One such office being that of the President of the Republic of Kenya. This would have had the resultant effect of placing the country in constitutional crisis. It is our considered opinion that such an effect would not have been the intention of the framers of the Constitution. It would certainly not have been a reflection of the will of the people. As this court stated in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others, SC Petition 14, 14 A, 14 B & 14 C of 2014 (Consolidated) [2014] eKLR, [par 206];
“
The transition chapter and clauses in the Constitution are meant not only to ensure harmonious flow from the old to the new order, but also to preserve the Constitution itself, by ensuring that the rule of law does not collapse owing to disruptions arising from a vacuum in the juridical order.”
84.
Further, as the Committee of Experts noted in their Final Report, transitional provisions are not contained in the body of the Constitution because they are of a temporary lifespan. Such provisions are usually considered technical, though they may have significant policy implications. Some of the transitional provisions provide that existing obligations, laws and rights will remain in force, until other laws or amendments to laws are enacted; and others provide that existing public offices will continue to function and operate, so as to prevent situations of gaps or vacuums in the discharge of the functions of these offices.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/66/eng@2022-10-28
Application 8 (E014) of 2022,Janmohammed (Suing as the Executrix of the Estate of the Late H.E Daniel Toroitich  Arap Moi) v Raiply  Wood (K) Limited & 5 others (Application 8 (E014) of 2022) [2022] KESC 67 (KLR) (28 October 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",28 October 2022,2022.0,Nairobi,Civil,Janmohammed (Suing as the Executrix of the Estate of the Late H.E Daniel Toroitich  Arap Moi) v Raiply  Wood (K) Limited & 5 others ,[2022] KESC 67 (KLR)               ,,"Brief facts
The appellant challenged the judgment and orders of the Court of Appeal delivered in Civil Appeal No 159 of 2019 (consolidated with Civil Appeal No 254 of 2019). The applicant sought for the Supreme Court to stay the execution of the Court of Appeal judgment pending the hearing and determination of the appeal.  
The 3rd respondent raised a preliminary objection challenging the jurisdiction of the Supreme Court to determine the appeal and the application for stay of execution. 
Issues
Whether an appeal on the applicability of the Limitation of Actions Act was applicable on claims of violation of fundamental rights and freedoms; and on the retrospective application of the Constitution met the jurisdictional threshold of the Supreme Court to determine an appeal as of right in any case involving the interpretation or application of the Constitution.
Whether the applicants had met the conditions necessary to warrant the grant of conditional stay.","Upon considering the petition dated July 28, 2022 and filed on August 1, 2022, which is brought pursuant to article 163(4)(a) of the Constitution, section 15 of the Supreme Court Act, 2011, and rules 3(5), 31 and 39 of the Supreme Court Rules, 2020, in which the appellant challenges the entire Judgment and orders of the Court of Appeal delivered on the July 22, 2022 in Civil Appeal No 159 of 2019 (Consolidated with Civil Appeal No 254 of 2019); and
2.
Upon perusing the notice of motiondated July 28, 2022 and filed on August 1, 2022, which is brought pursuant to article 163(4)(a) of the Constitution, sections 21 (1)
(a)
and 24(1) of the Supreme Court Act, 2011 and rules 3(5), 31 and 32 of the Supreme Court Rules, 2020, wherein the applicant seeks a stay of execution of the said Judgment and orders of the Court of Appeal pending the hearing and determination of the application and appeal; and
3.
Upon reading the supporting affidavit and further affidavit in support of the motion sworn by Zehrabanu Janmohammed (SC) on July 28, 2022and August 5, 2022, respectively and considering the grounds in support therein, mainly that the applicant has met the threshold for grant of stay; and
4.
Upon reading the 1st respondent’s replying affidavit sworn by Jaswant Singh Rai on August 4, 2022 and submissions dated August 4, 2022 in support of the application, wherein it is urged that the 1st respondent is equally aggrieved by the said Judgment and is in the process of filing an appeal before this court; and
5.
Upon considering the 3rd respondent’s replying affidavit and supplementary affidavit in opposition to the motion sworn by David K Chelugui on August 5, 2022 and August 31, 2022, respectively; raising a preliminary objection challenging the jurisdiction of this court to hear and determine the appeal and present motion; for the reasons that, no constitutional provisions of relevance or controversy were canvassed before the High Court or the Court of Appeal, and if any, that the two superior courts efficiently pronounced themselves upon them; and
6.
Upon considering the 6th respondent’s replying affidavit sworn by Brian Ikol on August 3, 2022 and submissions dated August 8, 2022, to the effect that no cause of action has been disclosed against it and that for this reason, the applicant should be condemned to bear its costs; and
7.
Further, Uponconsidering the written submissions by the applicant dated July 28, 2022 and further submissions dated August 8, 2022 to the effect that; the applicant is apprehensive that the 3rd respondent will commence execution of the decretal sum of Kshs 1,060,000,000 to the prejudice of the applicant’s estate, who in the event the court finds in its favour would bear an unreasonable burden recovering the decretal sum; and that the appeal is arguable and unless stay is granted, will be rendered nugatory. It is also urged that the court’s jurisdiction under article 163(4)(a) of the Constitution has been properly invoked as the appeal challenges the interpretation and application of articles 24 and 40 of the Constitution by both the High Court and Court of Appeal; and that in any event, by a letter dated August 2, 2022, the 3rd respondent unconditionally conceded the applicant had an automatic right of appeal; and
8.
Uponconsidering the 4th and 5th respondents’ submissions dated August 5, 2022 in support of the motion. Similarly, considering their contention that in order to protect the parties’ competing interests and to ensure justice is done to all the parties; the decretal sum herein be deposited in an interest earning account managed by counsel for the applicant and 1st and 2nd respondent; in the alternative, that the applicant be ordered to deposit in court any other security of equal value; or to issue a professional undertaking for the performance of the decree; or a prohibitory order be directed against the suit property herein; and
9.
Uponconsidering the written submissions by the 3rd respondent dated August 5, 2022, to the effect that the application is premature and frivolous for reasons that; there is no threat of execution against the estate of the late Daniel Toroitich Arap Moi; and that the applicant has failed to meet the threshold for grant of stay. Further, that the 3rd respondent is apprehensive that, if a stay is granted, the decree will be defeated. Consequently, it is his prayer that in the event the court is minded to grant a stay, it should simultaneously order the applicant to deposit the entire decretal sum with his advocates on record or to provide a bank guarantee from a licensed bank securing due performance of the decree; and
10.
Notingthat the applicant has filed Petition No E021 of 2022 as is required by rule 31(2) of the Supreme Court Rules, 2020 and directed by this court in Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 others SC Petition No 27 of 2014; [2014] eKLR, and Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe & 3 oothers, Election Petition No 38 of 2018; [2019] eKLR.
We Now Opine as Follows:
11.
We have carefully considered the reasoned arguments and submission by all parties in this matter. Regarding the issue as to whether the court has jurisdiction to entertain the appeal, we are guided by the provisions of article 163(4)(a) of the Constitution and our interpretation thereof. In Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Petition No 3 of 2012; [2012] eKLR (Lawrence Nduttu case), we stated the true intent of article 163(4)(a) of the Constitution as follows:
“This article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court …. Towards this end, it is not the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application.”
…
The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. ...” [Emphasis added].
12.
We consequently emphasized in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Petition No 10 of 2013; [2014] eKLR, that in order to transmute itself into the provisions of article 163(4)(a), the constitutional issue must have “been canvassed in the Superior Courts and has progressed through the normal appellate mechanism so as to reach this Court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution…” [Emphasis added].
13.
In this matter, the 3rd respondent’s case before the Environment and Land Court revolved around the protection of his right in the suit property under article 40 of the Constitution. The applicant on the other hand, contended that article 40 as invoked could not be applied retrospectively. Similarly, before the Court of Appeal, the applicant faulted the trial court for retrospectively applying the provisions of the Constitution, 2010 and for failing to find that the cause of action was barred by section 7 of the Limitation of Actions Act.
14.
In its Judgment, the Court of Appeal considered the question as to whether, claims of violation of rights and freedoms guaranteed under the Constitution, were subject to the Limitations of Actions Act, and secondly, whether the provisions of the Constitution of Kenya, 2010 could apply retrospectively. It consequently interpreted and applied the provisions of articles 24, 40 and 259(1) and dismissed the appeal for being unmeritorious. It is evident that the appeal raises issues involving the interpretation or application of the Constitution, therefore, in keeping with this Court’s decision in Lawrence Nduttu, we find that we have the jurisdiction to entertain the appeal and application before us.
15.
On the substantive issue, the applicant’s Executrix has urged that she is apprehensive that the 3rd respondent will commence execution of the colossal decretal sum of Kshs 1,060,000,000, which would render her appeal nugatory. Having determined that we have jurisdiction, we also find that the appellant has demonstrated that the appeal is arguable, and that unless a stay is granted, it will be rendered nugatory. The application thus meets the principles set out in the Board of Governors, Moi High School, Kabarak & another v Malcom Bell SC Petition No 6 & 7 of 2013, [2013] eKLR as affirmed in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Application No 5 of 2014, [2014] eKLR on the threshold for grant of stay of execution.
16.
The 3rd, 4th and 5th respondents have also submitted that should the court deem it fit to grant stay, it should further direct the applicant to deposit the entire decretal sum in an interest earning account managed by counsel for the applicant and 1st and 2nd respondent or to provide a bank guarantee from a licensed bank securing the payment of the full Decree sum. The only ground advanced to support this assertion is that there has been perceived intermeddling in the Estate of the late Moi aforesaid and that it would also be in the interest of justice to do so. We find that the respondents have not sufficiently substantiated this allegation to warrant grant of conditional stay.
17.
In any event, the executrix of the estate/ of the late Moi/applicant is a party to these proceedings and is under a legal obligation to among other things collect, and preserve the estate for purposes of satisfying any resultant decree, awarded by this court.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/67/eng@2022-10-28
Petition 1 (E026/2021) of 2022,Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others (Petition 1 (E026/2021) of 2022) [2022] KESC 65 (KLR) (28 October 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",28 October 2022,2022.0,Nairobi,Civil,Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others,[2022] KESC 65 (KLR)               ,,"Upon considering the Notice of Withdrawal taken out by the 1st to 5th petitioners in which they evinced their intention to withdraw the appeal on June 20, 2022; and
2.
Upon considering that when the matter was mentioned before the Deputy Registrar (Hon. Bernard Kasavuli), all the parties consented to the withdrawal with the 1st and 7th respondents insisting on costs; and
3.
Upon considering that the appeal was placed before a single Judge and marked as withdrawn with the question of costs being referred to a full bench.
4.
Upon considering the 1st respondent’s submissions dated August 4, 2022 concerning costs to the effect that this court, by the provisions of section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules 2020 has inherent power to award costs; that the filing of the appeal was unnecessary because, having been aggrieved by the decision of the High Court, the Petitioners lodged an appeal to the Court of Appeal, Civil Appeal No E017 of 2021, simultaneously with an application for stay of the High Court’s decision; that after the application was dismissed, and while their appeal was still pending before the Court of Appeal, the Petitioners filed the instant appeal together with an application for stay of execution when it was clearly premature to do so as there was no substantive judgment of the Court of Appeal from which an appeal could arise; and that due to this fact, this court struck out the application and therefore it was inevitable for the petitioners to withdraw the appeal; and
5.
Considering, furthermore, the 1st respondent’s argument that, though the petitioners were aware that it was premature to move to this court without a judgment of the Court of Appeal, they nonetheless proceeded to do so, wasting judicial and other parties’ time and resources; and for that reason, ought to be condemned to pay the 1st respondent’s costs of preparing court pleadings and attending court.","We now opine as follows:
i.
This court, by the cited provisions of section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules, 2020, has inherent jurisdiction to make orders as to costs.
ii.
The guiding principles applicable in the exercise of that discretion was enunciated in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, in the words reproduced in the passage below:
“[18]
It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation….
Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.”
iii.
Applying these principles, we hold the view that, at the point of the withdrawal of the appeal, only some parties had peripherally participated in the filing of pleadings. For example, only the 1st and 7th respondents had filed separate Notices of Preliminary Objection together with submissions in support thereof. In addition, only the 7th respondent had filed submissions in opposition to the appeal. The rest of the respondents never filed any responses or submissions. That perhaps explains why these respondents have not pressed for costs. We further note that though the 7th respondent prays for costs, it did not file submissions on the issue, but instead only asked the court to exercise its discretion.
iv.
Further, while it ought to have been obvious to all that the appeal was stillborn for want of jurisdiction, we are cognizant of the fact that the petitioners and 1st Respondent are public institutions and the matter in dispute involved allowances for Members of Parliament, who are themselves holders of a public office. Considering that the dispute is one in the public sphere, attracting public interest, we think an order of costs against any of the parties would not, in those circumstances, be a fair exercise of discretion.
7.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/65/eng@2022-10-28
Petition 12 (E014) of 2022,Barclays Bank of Kenya Limited ( Now ABSA Bank Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayers Office); Kenya Bankers Association (Proposed Interested Party) (Petition 12 (E014) of 2022) [2022] KESC 60 (KLR) (7 October 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",7 October 2022,2022.0,Nairobi,Civil,Barclays Bank of Kenya Limited ( Now ABSA Bank Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayers Office); Kenya Bankers Association (Proposed Interested Party) ,[2022] KESC 60 (KLR)               ,,"Brief facts
The Kenya Bankers Association (the applicant) filed the instant application in which it sought to be enjoined as an interested party and to adduce additional evidence.
The respondents opposed the joinder application on grounds that the applicant had failed to comply with the provisions of rule 24(1) of the Supreme Court Rules, 2020; failed to demonstrate the personal interest it had in the matter; had not shown any prejudice it stood to suffer if joinder was not granted and failed to set out its precise case and that whatever the applicant intended to bring to the petition was properly covered by the parties as the contested issues between the appellant and respondent.
Issues
Whether the applicants would be directly affected by the decision of the court in the instant matter and warranted being enjoined as an interested party in an appeal before the Supreme Court.
Whether the applicant had met the threshold for the introduction of additional evidence in an appeal before the Supreme Court.
Held
The applicant’s members who were also in the banking sector were likely to be directly affected by the outcome of the instant decision. That was an identifiable stake in the matter.
The applicant had not satisfied the threshold in rule 18 of the Supreme Court Rules in that he had failed to show that the additional evidence would, if given, influence or impact upon the result of the verdict or remove any vagueness or doubt within the case. The issues were plain and required no more than the applicant’s participation.
Application partly allowed.","
Order of the Court
1.
On October 7, 2022, this court delivered a ruling allowing the applicant’s notice of motion for joinder as interested party but dismissing the applicant’s prayer to file additional evidence. In the said ruling at paragraph 8, we erroneously indicated that rule 18 of the Supreme Court Rules 2020 is the rule applicable in admission of additional evidence. This was an inadvertent error as the correct rule should read as rule 26 of the Supreme Court Rules 2020.
2.
Section 21(4) of the Supreme Court Act clothes this court with general powers to correct any apparent errors in its judgments, rulings and/or orders as follows:
“
General powers.
(4)
The court may, on its own motion or application by any party with notice to the other or others, correct any oversight or clerical error of computation or other apparent on such judgment, ruling or order and such correction shall constitute part of the judgment, ruling or order of the court.”
3.
As a result, we hereby order as follows:
i.
The ruling is corrected by deleting ‘rule 18’ and inserting therein the correct rule being “rule 26”.
4.
This ruling is accordingly amended, and this order shall constitute part of the ruling of the court.
Ruling of the Court
1.
Upon perusing the notice of motion by Kenya Bankers Association, the applicant, dated July 7, 2022 and filed on July 8, 2022 brought pursuant to section 24 of the Supreme Court Act 2011, rule 3(1), (2), (4) and (5) and 24 of the Supreme Court Rules, 2020 and Direction 55(a) of the Supreme Court (General) Practice Directions, 2020 for leave for joinder as an interested party and to submit additional evidence and written submissions on the petition herein; and
2.
Upon considering the grounds in support of the application and the supporting affidavit of Dr Habil Olaka, the applicant’s Chief Executive Officer where the applicant claims to have a direct interest in the petition being the body bringing together banking institutions licensed and regulated by the Central Bank of Kenya; that the question of whether the disputed payments are subject to withholding tax is an important question within the banking industry that would affect all the applicant’s members; that should this court decide in the respondent’s favour, all the applicant’s members will receive assessments from the respondent for payment of withholding tax on interchange and professional fees; that the payment of such taxes will lead to loss of business as the cost will be borne by their customers; and
3.
Upon considering the applicant’s written submissions dated July 7, 2022 contending that it has met the requirements under rule 24 of the Supreme Court Rules, 2020 and that it has demonstrated that it has a stake/ interest in the matter, stands to suffer prejudice should it not be joined, advanced relevant arguments as a proposed interested party relevant to the petition as was determined in Francis Karioki Muruatetu & another v Republic & 5 others, SC Petitions No 15 and 16 of 2015; [2016] eKLR (Muruatetu case) and Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others, SC Petition No 12 of 2013; [2014] eKLR (Mumo Matemu case);and
4.
Also considering the argument by the applicant that it has met the threshold to be granted leave to adduce additional evidence by way of an affidavit as was set out in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohammad & 4 others; SC Petition No 7 of 2018; [2018] eKLR;
5.
Further considering the consent dated July 28, 2022 and lodged on July 28, 2022 where the petitioner does not oppose the applicant’s notice of motion for joinder as an interested party;
6.
And further considering the respondent’s replying affidavit sworn by Philip Munyao, an officer with the respondent’s Large Taxpayer’s Office (LTO) and written submissions opposing the joinder of the applicant as an interested party contending that the applicant has failed to comply with the provisions of rule 24(1) of the Supreme Court Rules, 2020; failed to demonstrate the personal interest it has in the matter; has not shown any prejudice its stands to suffer if joinder is not granted and failed to set out its precise case as was held in Mumo Matemu and Muruatetu and; that whatever the applicant intends to bring to the petition is properly covered by the parties as the contested issues between the appellant and respondent are largely factual and uncontested; and
7.
Noting the provisions of rule 24 of the Supreme Court Rules, 2020 and the principles set out in this court’s decisions in Mumo Matemu and Muruatetu on the joinder of an applicant as an interested party, we find that the application conforms to the principles laid out in that the applicant’s members who are also in the banking sector shall also be directly affected by the outcome of this decision. This is an identifiable stake in the matter and we so find.
8.
Also noting that the applicant has also prayed and submitted that they be allowed to adduce additional evidence, Upon consideration of rule 26 of this Court’s rules and the principles set out in Mohamed Abdi Mahamad v Ahmed Abdullahi Mohamed & 3 others, it is our finding that the applicant has not satisfied the threshold set out therein by failing to show that the additional evidence would ,‘if given, influence or impact upon the result of the verdict, or removes any vagueness or doubt within the case’. The issues are plain and do not require no more than the applicant’s participation for reasons given above. This prayer therefore fails.
9.
Accordingly, we make the following orders:
a.
The application dated July 5, 2022 and lodged on July 8, 2022 by Kenya Bankers Association for joinder as interested party is allowed. It shall file its affidavit in response to the petition within 14 days of this order. Any party that wishes to file a rejoinder to that affidavit may do so within 14 days of service.
b.
Parties shall bear their respective costs.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/60/eng@2022-10-07
Petition 12(E014) of 2022,Barclays Bank of Kenya Ltd (Now ABSA Bank Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayers Office); Retail Trade Association of Kenya (RETRAK) Through its Officials  Leonard Mudachi John Muthee and Kenneth Karoki (Proposed Interested Party) (Petition 12(E014) of 2022) [2022] KESC 63 (KLR) (Civ) (7 October 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",7 October 2022,2022.0,Nairobi,Civil,Barclays Bank of Kenya Ltd (Now ABSA Bank Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayers Office); Retail Trade Association of Kenya (RETRAK) Through its Officials  Leonard Mudachi John Muthee and Kenneth Karoki (Proposed Interested Party) ,[2022] KESC 63 (KLR)               ,,"Upon perusing the Notice of Motion by the Applicant, Retail Traders Association, dated July 7, 2022 and filed on July 8, 2022 brought pursuant to Section 3 of the Supreme Court Act 2011 and Rule 24 of the Supreme Court Rules, 2020 for leave for joinder as an interested party; and
2.
Upon considering the grounds in support of the application and the supporting affidavit by Rosalin Wambui Wamwiri, the Chief Executive Officer of the applicant where the applicant claims to be the central administrative body that conveys the views of the applicant’s members to the Government and relevant bodies; that the applicant plays an important role in the scheme of service that involves payment of goods and services by way of debit and credit cards within the retail industry and; that the applicant intends to guide the Court on the interpretation of Section 35 of the Income Tax Act and its import on imposing tax management and professional fees on interchange fees; and
3.
Also considering the applicant’s written submissions dated July 7, 2022 contending that it has met the requirements under Rule 24 of the Supreme Court Rules, 2020 and that it has demonstrated that it has a stake/ interest in the matter, stands to suffer prejudice should it not be joined and will advance relevant arguments pertinent to the petition if joined as an interested party;","Further considering the respondent’s replying affidavit sworn by Philip Munyao, an officer with the Respondent’s Large Taxpayer’s Office (LTO) and written submissions opposing the joinder of the applicant as an interested party contending that the applicant has failed to comply with the provisions of Rule 24(1) of the Supreme Court Rules, 2020, failed to demonstrate the personal interest in the matter nor any prejudice its stands to suffer if not joined and has also failed to set out its case with precision as was held in Francis Karioki Muruatetu & another v Republic & 5 others, SC Petitions No. 15 and 16 of 2015; [2016] eKLR (Muruatetu Case) and Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, SC Petition No. 12 of 2013; [2014] eKLR (Mumo Matemu Case)and; that whatever the applicant intends to bring to the petition is properly covered by the parties as the contested issues between the appellant and respondent are largely factual and uncontested; and
5.
Having considered the provisions of Rule 24 of the Supreme Court Rules, 2020 and the principles set out in this Court’s decisions in Mumo Matemu and Muruatetu on the joinder of an applicant as an interested party, we find that the applicant has failed to clearly identify the precise and specific interest it has in the matter. Its mandate is also peripheral to the issues in contestation and with respect, we do not see what issues of law or fact it will submit to court outside those already on record. Furthermore, we have not been shown any prejudice they stand to suffer in case of non-joinder. We therefore find no merit in the application and we accordingly dismiss it.
6.
There shall be no order as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/63/eng@2022-10-07
Petition 30 of 2019,"Ethics and Anti-Corruption Commission & another v Ojienda, SC t/a Prof Tom Ojienda & Associates Advocates & 2 others (Petition 30 & 31 of 2019 (Consolidated)) [2022] KESC 59 (KLR) (7 October 2022) (Judgment)",Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",7 October 2022,2022.0,Nairobi,Civil,"Ethics and Anti-Corruption Commission & another v Ojienda, SC t/a Prof Tom Ojienda & Associates Advocates & 2 others",[2022] KESC 59 (KLR)               ,,"Brief facts
A complaint had been lodged before the 1st appellant, the Ethics and Anti-Corruption Commission (EACC), alleging Kshs. 280 million had been fictitiously paid into the 1st respondent’s advocate-client bank account. Based on that allegation, the EACC obtained warrants ex-parte to investigate and inspect the bank account. Aggrieved, the 1st respondent filed a constitutional petition contending that the warrants had been issued ex-parte and had been obtained and enforced secretly without notice. 
The 1st respondent urged that the EACC’s actions amounted to an infringement of his right to privacy, property, fair administrative action, and fair hearing and contradicted sections 28(1, (2), (3), and (7) of the Anti-Corruption and Economic Crimes Act (ACECA), which required the EACC to issue a notice informing him of its intended application and allowing him to be heard before a court could legitimately issue any warrants. 
The High Court held, among others, that the warrants to investigate the bank account breached the 1st respondent’s rights and fundamental freedoms under the provisions of articles 47(1), 47(2), and 50(1) of the Constitution, hence void for all intents and purposes. Aggrieved, the appellants lodged appeals at the Court of Appeal, while the 1st respondent also filed a cross-appeal against part of the judgment. The Court of Appeal upheld the High Court decision and dismissed both the appeals and cross-appeal for lack of merit. The appellants were further aggrieved and thus filed the instant appeal.
Issues
What were the factors to be considered before the issuance of notices by the Ethics and Anti-Corruption Commission to those it intended to investigate? 
Whether the Ethics and Anti-Corruption Commission was required to always give prior notice to those it intended to investigate before commencing an investigation. 
What was the nature of the Ethics and Anti-Corruption Commission’s mandate in combating corruption and economic crimes in society? 
What was the definition and scope of what amounted to an administrative action?
Whether the Ethics and Anti-Corruption Commission’s investigative and arresting powers could be described as administrative actions? 
What were the factors to consider when invoking the Supreme Court’s appellate jurisdiction as a matter involving the interpretation or application of the Constitution? ","E.Analysis
i.On jurisdiction
42.
The 1st respondent has challenged this court’s jurisdiction under article 163(4)(a) of the Constitution. He contends that the consolidated appeal does not raise any issues involving the interpretation or application of the Constitution, or cogent issues of constitutional controversy. It is argued that all the appellants seek, is the interpretation of statutory provisions. Moreover, he maintains that the appeal is moot as the impugned warrants were issued and effected, hence spent. Conversely, the appellants urge that the appeal raises issues of constitutional interpretation and application, which have arisen through the judicial hierarchy. The 3rd respondent agrees with this contention.
43.
Article 163(4)(a) stipulates:
“
Appeals shall lie from the Court of Appeal to the Supreme Court—
a.
as of right in any case involving the interpretation or application of this Constitution; and
b.
in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)” [emphasis added].
44.
This court has settled the law on when an appeal lies to this court under article 163(4)(a) of the Constitution. In Lawrence Nduttu Case the court observed:
“
[28]
The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a)’’ [emphasis ours].
45.
Subsequently, in the Munya Case, the court in determining whether it had jurisdiction under article 163(4)(a) of the Constitution stated that:
“
The import of the court’s statement in the Ngoge Case}} is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application” [emphasis added].
46.
Flowing from the above, it is settled that for a litigant to invoke this court’s appellate jurisdiction under article 163(4)(a) of the Constitution, it must be demonstrated that the matter in issue revolves around constitutional contestation that has come through the judicial hierarchy, running up to the Court of Appeal and requiring this court’s final input. At the very least, an appellant must demonstrate that the court’s reasoning and conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.
47.
Upon an extensive examination of the record, it is apparent that the issue before the trial court was whether warrants issued ex-parte infringed the 1st respondent’s rights enshrined in articles 27, 40, 47 and 50 of the Constitution. The 1st respondent sought a declaration, among others, that the impugned warrants breached his rights and fundamental freedoms protected under articles 27, 31, 40, 47 and 50 of the Constitution of Kenya.
48.
The High Court partly found for the 1st respondent. It determined that the 1st appellant’s actions or omission were in breach of the 1st respondent’s right to fair administrative action and fair hearing under articles 47 and 50 of the Constitution. On appeal, the appellate court upheld the High Court. The appeal before us raises inter alia the issue as to whether investigations by the 1st appellant constitute an administrative action subject to article 47 of the Constitution as read with articles 10 and 24 of the Constitution. The superior courts’ finding on violations of the 1st respondent’s rights under articles 47 and 50 of the Constitution is challenged.
49.
From the foregoing, we are convinced that the issues before the High Court and Court of Appeal, leading to the impugned judgments squarely bring the instant appeal within the ambit of article 163(4)(a) of the Constitution. Besides, the 1st respondent having filed a constitutional petition and succeeded before the two superior courts, cannot now claim that the resultant appeal therefrom is not sustainable under article 163(4)(a) of the Constitution. We consequently find that we have the jurisdiction to hear and determine it.
50.
The 2nd respondent also submits albeit tangentially, that this court lacks jurisdiction on ground of mootness. It is his argument, that the impugned warrants which triggered the appeals were sought, issued and enforced in 2015, and as such, there is no justiciable issue between the parties. We find this argument far-fetched given the fact that the enforcement of the impugned warrants did not resolve the grievances that have remained live up-to this day. Indeed, it was the issuance of those warrants that prompted the 1st respondent to move to the High Court seeking to have them quashed. The question of when an issue is to be regarded to have become moot was extensively addressed by this court in Institute for Social Accountability & another v National Assembly & others (Petition No 1 of 2018) [2022] KESC 39 (KLR) (Civ) (8 August 2022) (Judgment).
ii. Whether investigations by the 1st appellant constitute an administrative action within the meaning of article 47 of the Constitution
51.
The appellants contend that the provisions of article 47 of the Constitution and the FAA Act are not applicable as the 1st appellant’s investigative function is not administrative but rather amounts to law enforcement. The appellants therefore urge that they did not act ultra-vires their lawful mandate as the impugned warrants were obtained pursuant to the provisions of sections 27, 28(1), 28(2), 28(3) and 28(7) of ACECA, Section 180 of the Evidence Act and section 118 of the CPC.
52.
In response, it is the 1st respondent’s case that in seeking warrants to investigate his bank account, the appellants violated his rights to fair administrative action. He urges that the 1st appellant’s failure to issue him with a notice in writing of its application to the 5th respondent, was in violation of sections 27 and 28 of ACECA. Therefore, the question before court is whether the 1st appellant’s investigations under the provisions of ACECA can be said to constitute administrative action under article 47 of the Constitution and the FAA Act.
53.
Article 47 of the Constitution protects the right to fair administrative action in the following terms:
“
47. (1)
Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2)
If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3)
Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall–
a.
provide for the review of administrative action by a court or, if appropriate, and independent and impartial tribunal; and
b.
promote efficient administration.”
54.
So, what constitutes “an administrative action” within the meaning of article 47(1) of the Constitution? Articles 47 and 260 of the Constitution do not define an “administrative action”. Section 2 of the FAA Act which was enacted to give effect to article 47, defines ‘administrative action’ as follows:
“Administrative action” includes—
i.
the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or
ii.
any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates”.
55.
Unfortunately, the foregoing definition does not provide an accurate picture of the meaning of an “administrative action” as it simply addresses the elemental aspects of the phenomenon before describing its nature. On the face of it therefore, any power, function, and duty exercised by authorities or quasi-judicial tribunals constitutes an “administrative action”. Likewise, any act, omission or decision of any person that affects the legal rights or interests of any person to whom such action relates constitutes an “administrative action”. Such definition, without more, would bring within the ambit of an “administrative action” just about anything done, or any exercise of power by an “authority” or “quasi-judicial tribunal”.
56.
A close scrutiny of article 47 of the Constitution gives a glimpse of what an
“
administrative action” entails. Towards this end, the said Article provides that:
…
3.
Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall–
(b)
promote efficient administration.”
57.
By stipulating that the legislation so contemplated has to among other things, promote efficient administration, the Constitution leaves no doubt that an “administrative action” is not just any action or omission, or any exercise of power or authority, but one that relates to the management of affairs of an institution, organization, or agency. This explains why such action is described as “administrative” as opposed to any other action. The Concise Oxford Dictionary (9th Ed) defines the word “administrative” as “concerning or relating to the management of affairs” Black’s Law Dictionary, (11th Ed) defines “administrative action” to mean “a decision or an implementation relating to the government’s executive function or a business’s management”. Burton’s Legal Thesaurus (4th Ed) defines the adjective “administrative” to mean among others, “directorial, guiding, managerial, regulative, supervisory.
58.
Does the 1st appellant’s investigative powers fall within the corners of this definition? Part IV of the ACECA specifically provides for the 1st appellant’s investigative powers. The powers granted therein include powers, privileges and immunities of a Police Officer under section 23(3), to search premises under section 29, to apply for surrender of travel documents under section 31, to arrest persons under section 32 amongst others. Strictly speaking, these powers when exercised cannot be described as “administrative action” within the meaning of article 47. For example, how can “conducting a house search” or “effecting an arrest” be considered as exercising administrative action? On the contrary, these are special powers conferred by a specific legal regime, to be exercised for a special purpose.
iii. Whether the 1st respondent’s fundamental rights and freedoms were violated by the 1st appellant’s investigative actions against him
59.
In his response, the 1st respondent maintains that by commencing and conducting investigations against him in the manner that it did, the 1st appellant violated his fundamental rights and freedoms guaranteed by the Constitution. In particular, he submits that his right to fair administrative action was violated by the 1st appellant due to its failure to issue Notice before commencing the investigations against him.
60.
Article 20(1) of the Constitution, provides that the Bill of Rights applies to all and bind all State organs and all persons. It entrenches the enjoyment of rights and fundamental freedoms in the Bill of Rights by every person and to the greatest extent consistent with the nature of the right or fundamental freedom. The right to fair administrative action, that is expeditious, efficient, lawful, reasonable and procedurally fair is one such right under the Bill of Rights.
61.
Having already concluded that the investigative actions of the 1st appellant cannot be categorized as “administrative action” within the context of article 47 of the Constitution, we find no basis upon which we can hold, that the 1st respondent’s rights were violated for failure to observe the requirements of the said article. Therefore, in the absence of proof of violation of his other fundamental rights and freedoms guaranteed by the Constitution, the impugned warrants ought not to have been quashed on the basis of this claim.
iv. Whether the 1st appellant is inflexibly bound to issue prior notice before applying for warrants
62.
It was the Court of Appeal’s finding that the EACC is inflexibly bound to comply with the provisions of sections 26, 27 and 28 of ACECA. This finding is challenged by the 1st appellants on grounds that the omnibus interpretation and application of article 47 of the Constitution renders the EACC ineffective in the discharge of its constitutional mandate. The 2nd appellant also urges that the ex- parte application was in accordance with the principles set out under article 24 of the Constitution. This being the case, he argues, the appellate court misinterpreted the provisions of sections 23(4) vis- à-vis the provisions of sections 26, 27 and 28 of the ACECA. It was the appellants’ argument that the appellate court’s finding departed from its earlier decisions, without giving reasons. The 1st and 3rd respondents support and agree with the Court of Appeal’s finding.
63.
To ascertain the correct legal position, we must interrogate, interpret and apply the provisions of sections 23, 26, 27 and 28 of the ACECA. Section 26 provides:
(1)
If, in the course of investigation into any offence, the Secretary is satisfied that it could assist or expedite such investigation, the secretary may, by notice in writing, require a person who, for reasons to be stated in such notice, is reasonably suspected of corruption or economic crime to furnish, within a reasonable time specified in the notice, a written statement in relation to any property specified by the Secretary and with regard to such specified property—
a.
enumerating the suspected person’s property and the times at which it was acquired; and
b.
stating, in relation to any property that was acquired at or about the time of the suspected corruption or economic crime, whether the property was acquired by purchase, gift, inheritance or in some other manner, and what consideration, if any, was given for the property…” [emphasis added].
64.
Section 27 of the ACECA provides:
“
1.
The Commission may apply ex-parte to the court for an order requiring an associate of a suspected person to provide, within a reasonable time specified in the order, a written statement stating, in relation to any property specified by the Secretary, whether the property was acquired by purchase, gift, inheritance or in some other manner, and what consideration, if any, was given for the property.
2.
In subsection (1), “associate of a suspected person” means a person, whether or not suspected of corruption or economic crime, who the investigator reasonably believes may have had dealings with a person suspected of corruption or economic crime.
3.
The Commission may by notice in writing require any person to provide, within a reasonable time specified in the notice, any information or documents in the person’s possession that relate to a person suspected of corruption or economic crime.
4.
A person who neglects or fails to comply with a requirement under this section is guilty of an offence and is liable on conviction to a fine not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.
5.
No requirement under this section requires anything to be disclosed that is protected by the privilege of advocates including anything protected by section 134 or 137 of the Evidence Act (cap 80.).”
65.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/59/eng@2022-10-07
Petition 17(E024) of 2021,Kenya Electricity Transmission Co. Ltd (KETRACO) v Instalanciones Inabensa S.A (Petition 17(E024) of 2021) [2022] KESC 64 (KLR) (Civ) (7 October 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",7 October 2022,2022.0,Nairobi,Civil,Kenya Electricity Transmission Co. Ltd (KETRACO) v Instalanciones Inabensa S.A ,[2022] KESC 64 (KLR)               ,,"Upon perusing the Notice of Motion taken out by the Appellant/Applicant on 6th May, 2022 and filed on 27th May, 2022, pursuant to Sections 21 and 24 of the Supreme Court Act 2011, Rule 31 as well as Rule 32 of the Supreme Court Rules 2020, for the following Orders:
“
i)
…Spent
ii)
…Spent
iii)
That a Conservatory Order do issue maintaining the status quo prevailing prior to the Court of Appeal Ruling delivered on 19th November 2021 and to prevent the Respondent from executing the Arbitration Award dated 30th July, 2019 and recognized as a Decree of the High Court by a Ruling delivered by the High Court on 12th February 2021 (M. Odero, J.) pending the hearing and determination of the Petition of Appeal.
iv)
That costs of this Application be provided for.”
[2]
UPON reading the affidavit by Ms. Lydia Wanja, the Applicant’s Manager Legal Services, sworn on 6th May, 2022 in support of the Motion; and
[3]
Upon considering the applicant’s submissions dated 6th May, 2022 wherein the applicant contends that it has a right of appeal under Article 163(4)(a) of the Constitution; that the Court of Appeal failed to properly invoke its jurisdiction under Article 164(3) of the Constitution to determine whether or not to grant leave to appeal a decision of the High Court under Section 35 of the Arbitration Act in the manner stipulated by this Court in the decisions in Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators Kenya Branch (Interested Party), SC Petition No. 12 of 2016; [2019] eKLR and Synergy Industrial Credit Limited v. Cape Holdings Limited, SC Petition No. 2 of 2017; [2019] eKLR; that the failure has led to infringement of the applicant’s rights under Articles 25(c) and 50(1) of the Constitution; that the appeal has a constitutional trajectory; and that Section 24 of the Supreme Court Act grants this Court the jurisdiction to grant the orders sought herein; and
[4]
FURTHER, that the applicant has an arguable appeal for the reason that instead of applying the threshold enunciated by this Court in the Nyutu Case the Court of Appeal based its decision on the validity of a Notice of Appeal under Section 75 of the Civil Procedure Act, as a result of which the applicant’s rights have been infringed; that the court’s interrogation on the validity of the Notice of Appeal was unlawful as no leave to appeal had been granted. In view of the foregoing, the applicant posits that the appeal will be rendered nugatory because: colossal sums are involved in the dispute and the Respondent is facing financial difficulties following its listing as a debtor in a voluntary petition for Non-Individual filing for Bankruptcy by its affiliate company, Albeinsa Holdings Inc. being cause No.16- 10790 filed in the United States of America Bankruptcy Court of the District of Delaware; that should the appeal succeed after the funds have been paid out to it, the respondent will not be able to make restitution to the applicant; and finally, that the applicant being a public institution, it is in the public interest that the funds be secured from the risk of execution pending determination of the appeal; and
[5]
Upon reading the respondent’s replying affidavit by Mr. Pablo Infante Cossio, the General Manager of the respondent, sworn on 14th June 2022 in opposition to the motion; and
[6]
","Upon reading the respondent’s replying affidavit by Mr. Pablo Infante Cossio, the General Manager of the respondent, sworn on 14th June 2022 in opposition to the motion; and
[6]
Upon considering the respondent’s submissions dated 16th June, 2022 to the effect that the Motion is devoid of merit and is solely intended to deny the respondent the fruits of judgment made in its favour; that it has been over 6 years since the dispute arose on 25th April, 2016 contrary to the fundamental pillars of arbitration that emphasizes on party autonomy, finality of arbitral awards and non- interference by courts; and that the application does not meet the conditions for the grant of conservatory orders, first for having failed to demonstrate that the appeal is arguable in the absence of leave to appeal as set out in the Nyutu Case. On the nugatory aspect, the respondent submits that this being a money decree and in view of the fact that the award can be reversed, the appeal, if successful will not be rendered nugatory; and that, in any case the applicant has not offered security as a condition precedent for the conservatory orders sought. Finally, the respondent submits that the only argument advanced by the applicant is that it is a public institution run on public funds, yet both courts below have found that the dispute was purely commercial and not one relating to public funds; and that it is not enough for the applicant to claim that it is a custodian of public funds for which reason it ought to be shielded from execution without demonstrating the jeopardy likely to be suffered should the funds, the subject of the award be paid to the respondent; and
In the above context, We Now Opine as follows:
[7]
Acknowledging that the applicant did not have an automatic right of appeal to the Court of Appeal from a decision of the High Court under Section 35 of the Arbitration Act, it must, of necessity follow that the question whether or not to grant leave to appeal was a discretionary exercise of judicial power by the Court of Appeal. In an appeal from a decision based on the exercise of discretionary powers, an applicant has to show that the decision was based on a whim, was prejudicial or was capricious and this Court stated in Deynes Muriithi & 4 others v. Law Society of Kenya & Another, SC Application No. 12 of 2015; [2016] eKLR, that, as the ultimate custodian of constitutional integrity, it may interfere with the exercise of discretion by another court where it is satisfied that that court misapplied the law or the orders made by that other courts are in conflict with express provisions of the Constitution and destined to occasion grave injustice.
[8]
Further,we stress, as we did in Daniel Kimani Njihia v Francis Mwangi Kimani & Another SC Application No. 3 of 2014; [2015] eKLR, that not all decisions of the Court of Appeal are subject to appeal to this Court. For example, discretionary pronouncements by the Court of Appeal is one of the categories of decisions falling outside the set of questions appealable to this Court. Such discretionary decisions are by no means the occasion to turn this Court into a first appellate Court.
[9]
Restating the settled position that the mere citing of Article 163(4)(a) and pleading that a question of application and interpretation of the Constitution is involved in an appeal per se would not be sufficient to clothe this Court with jurisdiction to entertain the appeal. See Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another, SC Petition No. 3 of 2012; [2012] eKLR.
[10]
Secondly, for an appeal to lie to the Supreme Court from the Court of Appeal under Article 163(4)(a), the constitutional issue must have first been in issue at both the High Court and then the Court of Appeal for determination. See Peter Oduor Ngoge v Francis Ole Kaparo & 5 Others, SC Petition No. 2 of 2012 [2012] eKLR. This principle emphasises the limits of the power exercised by the Supreme Court. It cannot extend it beyond its jurisdictional limits prescribed to those of the courts and tribunals below it.
[11]
Bearing in mind that the application seeks a conservatory order, it is important to observe here that in the entire text of the Constitution the phrase “conservatory order” appears only in Article 23 of the Constitution, as one of the instruments available to courts in the protection and enforcement of constitutional freedoms and fundamental rights.
[12]
That being the case, the next and final principles applicable to an application for conservatory order is that, a party seeking the relief must demonstrate that, unless the Court grants the order, there will be real danger of that party suffering prejudice as a result of the violation or threatened violation of the party’s constitutional rights. Therefore, an application for conservatory orders as enunciated in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others, SC Application No. 5 of 2014; [2014] eKLR, must satisfy the following strictures;
a)
The Appeal or intended appeal is arguable and not frivolous,
b)
Unless the orders sought are granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory, and
c)
That it is in the public interest to grant the conservatory orders sought.
[13]
To determine the question whether or not an appeal is arguable, the Court must not interrogate the merit of the appeal or make definitive findings of either fact or law at this stage as doing so may embarrass the Court when finally called upon to determine the appeal itself. An arguable appeal is, therefore not one which must necessarily succeed, but one which ought to be argued fully on its merits before the court.
[14]
On the nugatory aspect, the court is only concerned with the question whether what is sought to be stayed if allowed to happen is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved. See the decision of the Court of Appeal in Stanley Kangethe Kinyanjui v Tony Ketter & 5 others Civil Application No 31 of 2012; [2013] eKLR.
[15]
Is it in the public interest to grant the conservatory orders? A matter will qualify as one of public interest if it is one in which a class of the community has a pecuniary interest or some interest by which their legal rights or liabilities are affected. See Nubian Rights Forum & 2 others v. Attorney General & 6 Others; Child Welfare Society & 8 0thers (Interested Parties); Centre for Intellectual Property & Information Technology (Proposed Amicus Curiae), Consolidated HC Petition Nos. 56, 58 & 59 of 2019; [2019] eKLR. A matter is in the public interest if is presented as a means of advancing human rights and equality, or raises issues of broad public concern.
[16]
Guided by all the foregoing principles we consider, first that from the dispute before the arbitrators (Tribunal) was one of breach of contract with the High Court declining to set aside the award and instead recognizing it as binding and enforceable. Before the Court of Appeal, the applicant sought an order to stay the decision of the High Court and leave to challenge it. It is therefore doubtful, for these reasons, that any question of interpretation or application of the Constitution would arise from the determination of the two courts. We do not think it is enough to clothe the Court with jurisdiction to merely make reference in the application before the two courts to the fact that the application was anchored on certain provisions of the Arbitration Act, Civil Procedure Act as well as the Court of Appeal Rules “as read with” certain Articles of the Constitution.
[17]
Consequently we take the view, without conclusively determining the issues in contention, that these principles have not been satisfied and the three conditions precedent for the grant of a conservatory relief have not been met. For the reasons given in paragraph 16 above, the appeal is not arguable. We too are not convinced that the appeal will be rendered nugatory, or that it is in the public interest to grant the conservatory orders sought.
The motion, for these reasons fails and is dismissed with costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/64/eng@2022-10-07
Petition 16 of 2020,Kenya Hotel Properties Limited v Attorney General & 5 others (Petition 16 of 2020) [2022] KESC 62 (KLR) (7 October 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",7 October 2022,2022.0,Nairobi,Civil,Kenya Hotel Properties Limited v Attorney General & 5 others,[2022] KESC 62 (KLR)               ,,"A. Introduction
1.
This petition of appeal dated and lodged on August 28, 2020 is brought pursuant to the provisions of article 163(4)(a) of the Constitution. The appellant seeks to set aside the Judgment of the Court of Appeal (Makhandia, Kiage, and Murgor, JJA) in Civil Appeal No 404 of 2018 delivered on August 7, 2020 which affirmed the High Court (Mwita, J) Judgment in Constitutional Petition No 438 of 2015 delivered on September 28, 2018.
B. Background
2.
The appellant and the 4th respondent have been involved in multiple and endless proceedings around the same dispute involving land ownership for a period spanning over two decades. The origin of the dispute is hereby traced as follows;-
3.
Willesden Investment Ltd, the 4th respondent, as the registered proprietor of LR No 209/12748 IR No 66986 (the property) filed HCCC No 367 of 2000 Nairobi against Kenya Hotel Properties Ltd, the appellant. It sought damages for trespass and mesne profits arising from the appellant’s use of the property as a parking lot, having leased it from the Nairobi City Council to which the appellant was paying rent. In a Judgment delivered on December 14, 2006, the High Court (OK Mutungi, J) awarded the 4th respondent Kshs 54,102,400 in mesne profits; Kshs 10,000,000 in general damages for trespass and; Kshs 6,000,000 for loss of business opportunity plus interest and costs.
4.
The appellant appealed the High Court decision at the Court of Appeal (O’Kubasu, Onyango-Otieno & Aganyanya, JJA) in Civil Appeal No 149 of 2007. In a Judgment delivered on April 2, 2009, the Court of Appeal reduced the award by the High Court to Kshs 22,729, 800 with interest at court rates from January 1994 to the date of payment.
5.
Further aggrieved by that judgment, the appellant filed an application for review of the said judgment before the Court of Appeal. The same bench that had heard the substantive appeal (O’Kubasu Onyango-Otieno and Aganyanya, JJA) delivered its ruling on September 20, 2009 partially allowing the application for review to the effect that interest on court rates would start running from September 15, 1995 and not January 1994.
6.
The appellant’s claim is predicated on the outcome and report by the Judges and Magistrates Vetting Board, (‘The Board’). This Board was established under section 23 of the 6th schedule of the Constitution of Kenya that was vested with power of vetting the suitability of all serving Judges and Magistrates who were in office on the effective date of the promulgation of the Constitution. A complaint was lodged by the appellant against O’Kubasu JA over his handling of Civil Appeal No 149 of 2007 largely alleging bias on the part of the said Judge. In a decision issued on April 25, 2012, the Board made a determination that:
“
At the same time, the judgment, which was principally authored by the judge, contains anomalies evident from the record concerning whether arguments about the existence or otherwise of the trespass had been considered at all in the judgment; the basis on which damages were computed and the manner in which interest was to be calculated. Taken together and coupled with the judge’s resolute refusal to reconsider and reflect upon what appears to be manifest incongruities, they suggest a worrying lack of capacity on the part of the judge for objective and persuasive reasoning.”
7.
It was this finding that partly actualized the Board’s finding of unsuitability of O’Kubasu JA to continue holding the position of a judge. O’Kubasu JA filed an application for review of that decision but the Board dismissed the application on July 20, 2012, and so he stood removed as a Judge.
8.
It is upon that basis of removal of the Judge as one of the members of the bench who determined Civil Appeal No 149 of 2007 that the appellant sought to have the judgment issued in Civil Appeal No 149 of 2007 annulled by claiming that its rights and fundamental freedoms were violated.","E. Analysis and Determination
41.
Having considered the respective parties’ pleadings and submissions in the instant petition, this court is of the considered view that the issues arising for determination are:
i.
Whether the High Court had the jurisdiction to grant reliefs sought by the appellant
ii.
If not, what other remedies are available to the appellant?
42.
We shall determine each issue separately as here below:
i Jurisdiction
43.
Following the above, it is evident that the real issue in controversy before this court is the finding by the High Court that it lacked jurisdiction to grant the constitutional reliefs sought by the appellant in Constitutional Petition No 438 of 2015. The jurisdiction of the High Court to determine the petition was challenged primarily on the premise that the appellant sought to have the High Court annul the decision in Civil Appeal No 149 of 2009 that was delivered by the Court of Appeal which is a court superior to the High Court. It would in that context be best to repeat the reliefs sought before the High Court for emphasis:
1.
A declaration that the Court of appeal judgment dated April 2, 2009 in Nairobi Civil Appeal No 149 of 2007- Kenya Hotel Properties v Willesden Investments Limited is a nullity and should be set aside on account of judicial bias following the removal of the Judge of appeal Emmanuel Okelo Okubasu by the Judges and Magistrates Vetting Board on April 25, 2012 following a complaint over his handling of the appeal.
2.
A declaration that the petitioner’s right to a fair trial under article 50 of the Constitution was infringed by the bias shown by the presiding judge in Nairobi Civil Appeal No 149 of 2007- Kenya Hotel Properties v Willesden Investments Limited.
2.
A declaration that the judgment dated April 2, 2009 in Nairobi Civil Appeal No 149 of 2007- Kenya Hotel properties v Willesden Investments Limited cannot stand following the removal of the presiding judge by the judges and Magistrates Vetting Board on April 25, 2012 and the appeal should be retried de novo by the court of appeal.
44.
The issue faced by the High Court was therefore not on whether the court had jurisdiction to entertain a constitutional petition and its dispensation, but on whether the High Court had the jurisdiction to set aside a Judgment issued by the Court of Appeal as well as to order the Court of Appeal to try an appeal de novo.
45.
The appellant argues that the High Court erred in finding that it lacked jurisdiction to grant the orders sought and erred in failing to determine the petition on the its merits. The appellant also faults the Court of Appeal for upholding the High Court’s judgment, arguing that the supremacy of the courts is subordinate to the citizens’ enjoyment of fundamental rights and freedoms and the same cannot be applied in such a rigid manner and to curtail the guaranteed rights and freedoms under the Constitution.
46.
The High Court, in determining the matter before it, acknowledged the wide powers conferred to the court under articles 239(1) and 165(3) of the Constitution to address violation, infringement and/or a threat to a right or fundamental freedom and stated thus in that regard:
“
38.
Article 165(3) of the constitution confers on this court with very wide jurisdiction to deal with any matter that falls within its jurisdiction. That jurisdiction is not exhaustive given that article 165(3)(e) states that the court can have any other jurisdiction, original or appellate, conferred on it by legislation. In terms of article 165(3)(d)(ii), the court has jurisdiction to determine the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, the constitution. article 23(1) also states that the court has jurisdiction to hear and determine applications for redress of denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. This jurisdiction is to be exercised in accordance with article 165 of the Constitution. Article 23(3) of the constitution undoubtedly confirms the extent of the width of the jurisdiction of this court to grant appropriate relief.”
47.
The High Court however noted that such supervisory power is only limited to a jurisdiction over the subordinate courts but not over a superior court. It opined in that context as follows:
“
46.
Turning to the facts of this petition, the judgment sought to be annulled is by the Court of Appeal. It is therefore not in dispute that the impugned judgment is by a court superior to this court in terms of judicial hierarchy. It is a judgment binding on this court in terms of precedent. From the jurisdictional perspective of article 165 of the constitution, this court has wide jurisdiction which is exhaustively provided for by the constitution. However, the constitution itself places a constitutional caveat that this court cannot supervise other superior courts.
47.
Article 165(6) states in plain language that this court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial junction but not over a superior court. Superior courts in terms of article 162(1) of the Constitution are the Supreme Court, the Court of Appeal, the High Court and courts of equal status namely; the Employment and Labour Relations Court and the Environment and Land Court. The edict in article 165(6) is in form of a constitutional limitation imposed on this court not to do anything that would amount to supervising or superintending other superior courts.
48.
Based on the above analysis, can this court answer the petitioner’s grievance in the affirmative and annul a decision of the Court of Appeal taking into account the pecking order of the superior courts in this country? And can this court issue an edict to the Court of Appeal directing that court to reopen a closed appeal and hear it de novo? My answer to the above questions must be in the negative. If what the petitioner asks of this court were to happen, it would certainly amount to under mining the authority of the Court of Appeal by another superior court but inferior to it. It would be against clear words of article 165(6).”
48.
It is on the above analogy that the High Court declined to assume jurisdiction and determine the appellant’s petition.
49.
Similarly, the Court of Appeal in agreeing with the High Court, noted the absurdity of asking a High Court to purportedly re-open a decision of the Court of Appeal, noting that no such jurisdiction exists by holding:
“
Its latest rising is the most baffling of all because the petition filed before the High Court sought strange prayers in that the court there was being asked to annul, strike out, reverse or rescind a judgment of this court, its elder sibling. In a system of law that is hierarchical in order, such as ours is, it seems to us that such a thing is quite plainly unheard of and for reasons far greater than sibling rivalry. The Constitution itself clearly delineates and demarcates what the High Court can and cannot do. One of things it cannot do by virtue of article 165(6) is supervise superior courts.
Moreover, under article 164(3) of the Constitution, this court has jurisdiction to hear and determine appeals from the High Court. Its decisions are binding on the High Court and all courts equal and inferior to it. It is therefore quite unthinkable that the High Court could make the orders the appellant sought as against a decision of this court to quash or annul them, or that it could purport to direct this court to re-open and re-hear a concluded appeal. We consider this to be a matter of first principles so that the appellant’s submission that the issue pits supremacy of the courts against citizens’ enjoyment of fundamental rights is really misconceived because rights can only be adjudicated upon by properly authorized courts. Any declaration by a court that has no jurisdiction is itself a nullity and amounts to nothing.
It matters not how strongly a court feels about a matter, or how impassioned it may feel or how motivated it may be to correct a perceived wrong: without jurisdiction it would be embarking on a hopeless adventure to nowhere.”
50.
On our part, and this is trite law, jurisdiction is everything as it denotes the authority or power to hear and determine judicial disputes. It was this court’s finding in In R v Karisa Chengo [2017] eKLR, that jurisdiction is that which grants a court authority to decide matters by holding;
“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”
51.
We have to reiterate at this point that Civil Appeal No 149 of 2007 was conclusively determined on April 2, 2009 and that judgment still stands save for the review judgment issued on November 20, 2009 that altered the dates of interest. Similarly, the High Court judgment in HCCC No 367 of 2000 still stands and the appellant has also not sought any orders to have this judgment impugned. The appellant is therefore asking this Court to make its determination based on proceedings brought under the Constitution where the decision of the Vetting Board is the basis for its main argument that the judgment by the Court of Appeal in Civil Appeal No 149 of 2007 was obtained through alleged bias or impropriety on the part of O’Kubasu JA despite the appellant not having any complaints against the other two Judges of the Court of Appeal who determined Civil Appeal No 149 of 2007 (Onyango-Otieno and Aganyanya JJA).
52.
The appellant in that regard is therefore asking us to make a determination on whether a decision rendered by a Judge removed by the Vetting Board for impropriety should be left to stand or should be overturned. The appellant strongly urges this point by relying on the concurring opinion by Mutunga CJ, in Jasbir Singh Rai that the appellant can obtain the said reliefs sought before the High Court where the right to a fair trial is denied because of the misconduct of Judges who voluntarily or involuntarily left the Bench. The learned Chief Justice had held:
“
Article 10 of the Constitution requires Parliament to be non-discriminatory when it enacts laws. Parliament violated article 10 when it enacted section 14 of the Supreme Court Act because it limited the remedy of a new trial only to those who could prove that the Judge in their case had been removed, retired or resigned on the basis of their complaints. The right to a fair trial, however, applies to everyone, not just those who were denied the right because of the misconduct of Judges who then voluntarily or involuntarily left the bench. It also applies to those litigants whose rights were violated even though their respective Judges had been found suitable by the Judges and Magistrates Vetting Board, or who did not have to be vetted under the Act. If the right to a fair trial belongs to everyone, the remedy must also belong to everyone. Therefore, based on the provisions of article 10 that promote and protect the principle on non-discrimination and the equal protection afforded by article 27, I find no basis for this discrimination and I would have declared section 14 unconstitutional.”
53.
It is on this finding that the appellant strongly argues that the reliefs sought in his constitutional petition can be purportedly issued by the High Court in an attempt to have the High Court overturn a final decision of the Court of Appeal. Needless to say, this cannot be any closer to the truth. Our Constitution cannot by any stretch of imagination mold itself to issue the reliefs sought by the appellant. In the Samuel Kamau Macharia case, this court declared section 14 of the Supreme Court Act unconstitutional, for the sole reason that it sought to confer special jurisdiction to the Supreme Court to review a judgment or decision of a judge who has been removed, resigned or retired from office. The court specifically stated:
“
(65)
In the instant case, we find that a final Judgment by the highest court in the land at the time vested certain property rights in, and imposed certain obligations upon the parties to the dispute. We hold that article 163(4)(b) is forward-looking, and does not confer appellate jurisdiction upon the Supreme Court to entertain matters that had been finalized by the Court of Appeal before the commencement of Constitution”.
54.
Again, we reiterate that this finding applies emphatically to this case because, though this court categorically found that article 163(4)(b) does not confer the Supreme Court with the jurisdiction to entertain appeals from the Court of Appeal before the coming into force of the 2010 Constitution, the same principle applies in that the High Court cannot and does not have any jurisdiction to reopen cases finalized by the Court of Appeal, which was the apex court at the time. Mutunga CJ, in his concurral opinion in Rai v Rai indeed acknowledged that the Constitution of Kenya 2010 may address any injustice with the High Court having jurisdiction under article 165 to hear and determine applications for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill or Rights. It was his finding that:
“
[110]
As stated above, the Supreme Court of India has the power to redress all violations of fundamental rights. The High Court of Kenya has similar jurisdiction. This jurisdiction has been donated to the High Court under articles 23 and 165(3)(b) of the Constitution:
“
23.(1)
The High Court has jurisdiction, in accordance with article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights”.
[111]
Therefore, while accepting Senior Counsel Nowrojee’s contentions that there have been injustices in this case, the choice of forum is in question. The Kenyan Constitution has given the High Court the exclusive jurisdiction to deal with matters of violations of fundamental right (articles 23 as read with article 165 of the Constitution). The High Court, on this point, has correctly pronounced itself in a Judgment by Justices Nambuye and Aroni, in Protus Buliba Shikuku v R, Constitutional Reference No 3 of 2011, [2012] eKLR.
[112]
The Shikuku case fell within the criminal justice system; it involved a claim of violation of the petitioner’s fundamental rights by the Court of Appeal, in a final appeal. The trial court failed to impose against the petitioner the least sentence available in law, at the time of sentencing. On the issue of jurisdiction, the learned Judges, relying on articles 20, 22 23 and 165 of the Constitution rightly held that the High court had jurisdiction to redress a violation that arose from the operation of law through the system of courts, even if the case had gone through the appellate level. In so holding, the High Court stated with approval the dicta of Shield J, interpreting the provisions of the 1963 Constitution in Marete v Attorney General [1987] KLR 690:
“
The contravention by the State of any of the protective provisions of the Constitution is prohibited and the High Court is empowered to award redress to any person who has suffered such a contravention.”
[113]
Thus, in answer to Mr Nowrojee’s first two questions posed to the Supreme Court, my answer is this: There is no injustice that the Constitution of Kenya is powerless to redress.”
55.
We need to emphasize and reiterate that Mutunga CJ did not in any way state that the High Court may in any way, purport to overturn or order final decisions issued by higher courts than itself to start de novo, especially on appeals that have been finally concluded by the highest court at the time. Furthermore, the concurrence by Mutunga SCJ cannot override the judgment by the majority, despite what the appellant chooses to submit. As was thus rightly noted by the High Court and the Court of Appeal, the rule of thumb is that superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdiction much less those court higher than themselves. Again, we take cognizance of our finding in the Samuel Kamau Macharia case where we held that:
“A court jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. This court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.” (emphasis supplied)
56.
Furthermore, and more fundamentally, we reiterate what we stated in Kenya Hotel Properties Limited v Attorney General & 5 others, SC Application No 27 of 2020; [2020] eKLR on the appellant’s application for stay of execution that the decisions by the Vetting Board cannot and should not be elevated to supra-judicial pronouncements that would have the effect of setting aside every decision made by a judge who was removed for impropriety.
57.
The appellant, having exercised his right of appeal (albeit unsuccessfully) to a higher court, in this case, the Court of Appeal, cannot proceed to launch an attack upon a judgment of the Court of Appeal, by making an application for redress under article 23 of the Constitution to the High Court, another superior court nonetheless, but one inferior to the court that delivered such judgment. To allow such an action, would in the view of this court be quite subversive to the principle of rule of law as enshrined in our Constitution.
58.
The appellant also seeks to rely on the South African decision in Brian Patrick De Lacy & another v South African Post Office [2011] ZACC 17, where the South African Constitutional Court in its judgment held that a complaint of perceived judicial bias is a constitutional matter calling for intervention of the constitutional court as well as the English decision of Marbury v Madison 5 US 137 where the court held that there was no injustice that courts could not cure as there can be no right without a remedy.
59.
The two cases cannot apply in this regard because though the courts found bias to amount to a breach of constitutional rights, the inferior courts were not asked to set aside the judgments made by superior courts, the Vetting Board proceedings notwithstanding and we have explained why.
60.
To our minds, the principle of finality in litigation is relevant, more so in this appeal. There must be an end to litigation and it is intolerable that litigants could be allowed to approach courts to reconsider final orders made in judgments by a superior court in the hierarchy of courts and to have such final judgments re-opened.
61.
In light of this, we find no justifiable fault in the decision of the appellate court affirming the trial court’s decision.
62.
Consequently, the appeal stands dismissed.
ii Appropriate Remedies
63.
As was noted by the Court of Appeal, the issue of jurisdiction and appropriate remedies are one and intertwined. This is so because having found that the High Court lacked jurisdiction to determine the petition, we ask ourselves, what other remedies are available to the appellant at this point? Again, as we have quite succinctly explained above, once the Court of Appeal finalized the review judgment, the matter came to an end, the proceedings from the Vetting Board notwithstanding. Any remedies available to the appellant, lie elsewhere than in this appeal.
64.
In any event the appellant has filed before the Environment and Land Court ELC Suit No 35 of 2010 and the ELC did recognize in an interlocutory ruling that the 5th respondent had raised triable issues regarding the legality of the title issued to the 4th respondent. In our considered view that is where the appellant who claims there was a violation of fundamental rights as persistently agitated can be ventilated. We see no other remedy available to the appellant in the matter before us and we so hold.
65.
On costs, the dispute has come to end before us after decades of incessant litigation before the superior courts below. It is best that we exercise discretion and order each party to bear its cos",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/62/eng@2022-10-07
Petition 9 (E011) of 2022,Macharia & another v Director of Public Prosecutions & 11 others (Petition 9 (E011) of 2022) [2022] KESC 61 (KLR) (7 October 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",7 October 2022,2022.0,Nairobi,Civil,Macharia & another v Director of Public Prosecutions & 11 others,[2022] KESC 61 (KLR)               ,,"Upon perusing the 3rd to 11th Respondents’ Notice of Motion dated 6th May, 2022 and lodged on 12th May, 2022 seeking to strike out the Petition of Appeal dated 14th April, 2022 on the grounds that:
i.
The appeal is filed without jurisdiction;
ii.
The appeal does not raise any issues relating to the interpretation or application of Constitution;
iii.
The Petition is fatally defective for the reason that the Petitioners were joined as interested parties before the High Court and therefore their participation was merely ancillary; and
iv.
The Petitioners lack the requisite locus standi to institute the present appeal; and
2.
Upon reading the affidavit by Dr. David Mwaisaka, the Head of Legal Kenya and East Africa Standard Chartered Bank, sworn on 6th May, 2022 in support of the Motion; and
3.
Upon considering the 3rd to 11th respondents’ submissions dated 6th May, 2022 and filed on 12th May, 2022 in furtherance of these grounds, to the effect that: First, the appeal herein does not involve constitutional interpretation or application pursuant to Article 163(4)(a) of the Constitution; that the proceedings before both superior courts below were mainly between the DPP (1st Respondent) on one part and the 3rd to 11th respondents on the other part; that the dispute centred around the DPP’s decision dated 7th April, 2014, by which the DPP re- opened criminal investigations against the Standard Chartered Bank (SCB) into allegations of stealing by directors, thereby reversing an earlier decision made by the Attorney-General on 26th November, 2005, before the establishment of the independent Office of the DPP, not to prosecute SCB and the directors; that upon that decision being challenged, the High Court issued, among other reliefs, an order of prohibition stopping the Kenya Police and the DPP from investigating or prosecuting the 3rd to 11th respondents; and that at no point in the said proceedings was any matter of a constitutional nature raised; and
4.
Further, that the petitioners lack the requisite locus standi to institute the present proceedings for the reason that their participation has at all times been peripheral to the dispute between the principal parties as they were joined as interested parties in the judicial proceedings before the High Court. As such, they cannot institute the instant appeal and seek substantive orders to set aside the judgments of the two superior courts below. Lastly, that the petitioners have proceeded to frame new constitutional issues for determination by this Court which were not the subject of determination before the two superior courts below, contrary to the finding by this Court in the case of Teachers Service Commission v. Simon Makau & 19 Others, SC Application 38 of 2014; [2015] eKLR; and
5.
Upon considering the petitioners’ grounds of opposition to the Motion and submissions dated 24th May, 2022 to the effect that they have approached this Court for the reason that the Court of Appeal misconstrued and misapplied Article 157(4) of the Constitution; that one of the issues framed by the Court of Appeal was “whether the DPP legitimately exercised his power in reviewing the decision not to prosecute Standard Chartered Bank” and; that the Court of Appeal proceeded to make a determination on the powers conferred upon the DPP under Article 157 of the Constitution; and
6.
Furthermore, relying on the dicta by this Court in the case of Joseph Lendrix Waswa v. Republic, SC Petition No. 23 of 2019; [2020] eKLR, the petitioners contend that as victims in the criminal investigations in question, they have the right to be heard throughout the trial process up to the appellate stage; that their capacity to participate in this appeal has been enhanced during the pendency of the suit; and that the 3rd to 11th respondents are the potential suspects who obtained orders of certiorari to quash requisitions issued to them and an order of prohibition to stop investigations which had been set in motion by the DPP. Therefore, in their view, Lendrix Waswa [supra] illustrates the scope of the petitioners’ participation in criminal proceedings and also proceedings which take place before persons are charged; and Considering the foregoing arguments, we now opine as follows:
7.
We acknowledge the fact that jurisdiction is everything and that without it, a court has no power to make one more step; and that a court’s jurisdiction flows from either Constitution}} or legislation or both. It follows that we must, in limine, be satisfied that the petitioners have properly invoked the jurisdiction of this Court. See Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR; and
8.
","Inevitably it must follow that the dispute has always revolved around the re-opening of criminal investigations into SCB and its directors by the DPP, being the primary parties. The requisitions were issued by the latter against the former. Essentially, before both superior courts below, the contest has been the prosecutorial mandate of the DPP vis-à-vis the rights of the 3rd to 11th respondents. The petitioners now want to advance their rights which have never been the subject of judicial determination before this stage. Equally, the rights of the petitioners do not speak to the core issue which has been the exercise of the prosecutorial powers of the DPP. The petitioners’ stake in the proceedings has throughout remained peripheral and cannot override the stake of the primary parties, who appear not to have been aggrieved.
13.
Restating the words in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others, Civil Appeal No. 290 of 2012; [2013] eKLR that:
“
A suit in Court is a ‘solemn’ process, ‘owned’ solely by the parties. This is the reason why there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently, where a person not initially a party to a suit is enjoined as an interested party, this new party cannot be heard to seek to strike out the suit, on the grounds of defective pleadings.”
14.
Ultimately, we respectfully agree that the petitioners, though interested parties before the superior courts below, cannot, at this juncture, have overriding interests above and beyond the primary parties or mutate from having a peripheral stake into central core parties complete with freshly and new formulated constitutional grounds that were not the issues determined by the court appealed from. Just like we stated in Methodist Church in Kenya v. Mohamed Fugicha & 3 others, SC Petition 16 of 2016; [2019] eKLR, this appeal is not properly before us.
In view of all these, we find that the petitioners lacked the locus standi to institute this appeal.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/61/eng@2022-10-07
Petition 24 of 2019,Senate v Council of County Governors & 6 others (Petition 24 & 27 of 2019 (Consolidated)) [2022] KESC 57 (KLR) (7 October 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",7 October 2022,2022.0,Nairobi,Civil,Senate v Council of County Governors & 6 others,[2022] KESC 57 (KLR)               ,,"A. Introduction
1.
Before this court are two appeals, Petition No 24 of 2019 dated July 12, 2019, and Petition No 27 of 2019 dated July 17, 2019 both filed on July 18, 2019. The appeals are brought pursuant to article 163(4)(a) of th Constitution and rule 31(1) of the Supreme Court Rules, 2012, (now repealed), challenging in part the judgment and orders of the Court of Appeal (Makhandia, Musinga, Murgor, Odek & S Ole Kantai, JJA) in Civil Appeal No 204 of 2015. By an order of this court dated February 19, 2020, the appeals were consolidated, with Petition No 24 of 2019 as the lead file. The consolidation of the two appeals, with the former being the lead file, turns the Council of Governors & 6 others, into respondents even though they were initially petitioners.
B. Background
i. At the High Court
2.
On February 8, 2014, the Senate Committee on County Public Accounts and Investments summoned fifteen County Governors to appear before it to answer questions on County financial management. These questions had been raised by the Auditor General in his 2012/2013 financial year report. Several County Governors appeared before the Committee save for four who expressly declined to honor the summons. The four Governors instead filed Petition No 8 of 2014, International Legal Consultancy Group v the Senate and the Clerk of the Senate before the High Court in Kerugoya challenging the Senate’s summons. On April 16, 2014, the trial court found that the Senate was well within its constitutional mandate to issue the summons.
3.
Consequently, the Senate issued fresh summons to the Governors, requiring them to appear before the Committee on August 26, 2014. However, Governor Isaac Ruto of Bomet County, William Kabogo of Kiambu County, Mwangi wa Iria of Murang’a County and Jack Ranguma of Kisumu County declined to honor the summons despite the Court Orders. This prompted the Senate to pass a resolution, in accordance with section 96 of the Public Finance Management Act, recommending that, the Cabinet Secretary, Treasury halts the transfer of funds to the concerned County Governments and the Controller of Budgets withholds the approval of withdrawal of public funds by the said County Governments.
4.
Aggrieved, the Governors filed a second Petition, No 413 of 2014, Council of Governors & 6 others v the Senate, seeking the following declarations: that,
a.
Under article 6(2) of the Constitution, the Senate could not exercise its powers under article 125 in a manner that cripples County Governments;
b.
The Senate is bound by the provisions of article 189(1) of the Constitution and must perform its functions and powers in a manner that respects the County functional, institutional and constitutional status;
c.
Under articles 96 and 226(2) of the Constitution and section 148 of the Public Financial Management Act 2012, the Senate could not summon governors to personally appear before it to answer questions of County government finances;
d.
The Senate is bound by the procedures and requirements of the Public Finance Management Act in the discharge of its oversight powers;
e.
Under articles 96 and 226(2) of the Constitution and section 148 of the Public Financial Management Act, only members of the Executive Committee or the Chief Officers responsible for finance can appear before the senate or any of its Committee to answer any county government finances queries;
f.
Under articles 6(2), 96, 174, 185(3) and 226(2) of the Constitution, the senate cannot summon a County accounting officer to answer questions of county financial management, at the first instance, but must first allow the oversight and legislative mechanisms at the County level as the two levels of government are separate and distinct;
g.
The intention of articles 6(2), 96, 174,185(3), and 189 of the Constitution, within the meaning of articles 226(2) and 96(4) of the Constitution, the Senate’s oversight role over nationally collected revenue to counties is not identical to the county assembly’s oversight over the executive;
h.
The intention of articles 96(4), 185(3) and 226(2) of the Constitution, the senate’s power is limited to oversight over national agencies which manage national revenue allocated to counties such as the National Treasury;
i.
Articles 6(2), 189(I), 174 and 96(4) of the Constitution, as read with the article 185(3) of the Constitution, the County Assembly is the sole organ that undertakes an oversight authority over the County Executives;
j.
The Senate can only exercise its powers under article 125 of the Constitution to scrutinize county financial and other records for purposes of determining an impeachment, intervention, suspension, or for purposes of developing national legislation necessary for more prudent management of finances at the county level;
k.
The Senate does not have sole constitutional powers to direct National Treasury and Controller of Budget not to release funds to Counties without following the provisions of article 225 of the Constitution;
l.
Stoppage of funds to a county public entity can only in accordance with article 225 of the Constitution;
m.
Permanent injunctions restraining the Senate from summoning County Governors to appear before it to answer questions on county public financial management;
n.
Permanent injunctions restraining the Senate from summoning accounting officers at the County level to appear before it to answer questions on county public finance management; and
o.
an order of certiorari to quash the Senate’s Resolution issued on August 7, 2014 directed to the National Treasury and the Controller of Budget.
5.
The court framed five issues for determination: whether the petition was competent and whether the court had jurisdiction to determine it; whether the Senate has the mandate to summon County Governors to answer queries raised by the Auditor General; whether the resolution to the National Treasury and the Controller of Budget by the Senate withdrawal of public funds by Counties was/is constitutional; whether Governors can be lawfully held accountable for transactions in the financial years during which the defunct local authorities together with the Transition Authority (in line with the Functions under section 7 of the Transition to Devolved Governments Act 2012) were in-charge of County Resources; and what reliefs (if any) are available to the parties.
6.
In a judgment delivered on June 4, 2015, the High Court (Lenaola, M Ngugi & Odunga, JJ (as they then were)) granted the following declarations:
a.
Resonating the intention of article 96 of the Constitution and 226(2) of the Constitution of Kenya and section 148 of the Public Finance Management Act, 2012, it is proper, legal, and constitutional for Members of the Executive Committee responsible for finance and the Chief Officers responsible for finance to appear before the Senate or any of its Committee to answer on County Government finances and to generally provide information that helps the Senate to undertake its oversight functions as stipulated in article 96 of the Constitution.
b.
The Senate does not have sole constitutional powers to direct the National Treasury and Controller of Budget not to release funds to Counties without following the provisions of article 225 of the Constitution;
c.
Stoppage of funds to a County public entity can only be done by following the provisions of article 225 of the Constitution; and
d.
An order or certiorari to quash the resolution of the Senate issued on August 7, 2014 that purports to direct the National Treasury and the Controller of Budget not to release funds to Kiambu, Bomet, Kisumu and Murang’a Counties.
7.
On the issue of the competency of the petition, the court relied on article 156(1) of the Constitutionand section 5(1) of the Attorney General Act to determine that Constitution allows the Attorney General the right to represent the National Government in court proceedings where it has been sued, but does not stipulate that the Attorney General must be joined in all instances where any organ of the National Government has been sued. The court noted that section 12(1) of the Government Proceedings Act was enacted under the retired Constitution, is subject to the Constitution as the supreme law of the land, and any inconsistency could not stand to the extent of that inconsistency. On the issue of failure to issue 30 days’ notice of the intention to sue to the Attorney General, it was the court’s finding that no prejudice had been suffered as the Senate had entered appearance in its own name and the failure did not impair or impede the cause of justice. The court noted that any rule of procedure that violates a party’s fundamental right and freedom was not sound.
8.
On whether the Privileges Act and Senate immunity to legal proceedings limits the court’s jurisdiction, it was opined that the Constitution binds all persons and all State organs at all levels of Government. It was the court’s further finding that it had the power to enquire into the constitutionality of the actions of the Senate notwithstanding the privilege accorded to its members. That finding was fortified by the principle that the Constitution is the supreme law and the Senate must function within the limits prescribed by the Constitution. The trial court determined that under the doctrine of separation of powers, Parliament as a distinct and independent organ is entitled to exercise its mandate without undue interference from other arms of Government, however, when any of the State organs steps outside its mandate, the courts would not hesitate to intervene in exercise of its powers to interpret the Constitution, and to safeguard, protect and promote its provisions in exercise of its supervisory powers under article 165(3) of the Constitution.
9.
As to the place of the privileges and immunities provided for under article 117 and sections 12, 14, 15 and 29 of the Privileges Act, the court determined that the sections were enacted under the repealed Constitution. Section 7 of the sixth schedule to the Constitution provides that any law in existence before the promulgation of the Constitution 2010 must be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution 2010. In that regard, the court determined that the provisions of the Privileges Act are applicable to the Senate to the extent stipulated by section 7 of the sixth schedule.
10.
On the issue as to whether the appeal wasres judicata, the court reasoned that the parties in the petition were different from those in Kerugoya HC Constituional Petition No 8 of 2014; that although the main issue for determination by the courts was whether the summons issued by the Senate were constitutional, new issues had been placed before it for determination; and that the general rule was that res judicata is applied sparingly in constitutional matters. The court determined that the question of the Senate’s powers to question Governors with regard to financial management, as well as the constitutionality of the Senate’s resolution directing the Controller of Budget to suspend withdrawal of funds had not been settled.
11.
On the role of Senate, the court held that under the provisions of article 95(4)(c) of the Constitution, the National Assembly has the mandate to exercise oversight over national revenue and expenditure. It held that the Senate is the organ that relates with the National Government at the national level over County interests, and therefore has oversight powers over national revenues allocated to Counties. As to the County Assemblies’ power to exercise oversight over County funds under article 185(3) of the Constitution, it was determined that this mandate is limited in scope and its application to the County Executive Organs and does extend to the national revenue as provided under articles 95(4)(c), 96(3) and 226(2) of the Constitution.
12.
On the scope, extent and nature of the Senate’s oversight role, the court determined that the oversight entails a procedural and substantive function. Procedural oversight involving the process leading to division and sharing of national revenue between the National and County Governments as envisaged under articles 202 and 203 of Constitution and substantive oversight ensuring that the revenue so allocated has been disbursed to the Counties and spent in accordance with the law.
13.
As to whether the Senate can summon Governors to answer questions on County Public Finance Management, the trial court found that the Senate’s mandate and role under section 8 of the Public Finance Management Act, is wide in scope including, receiving reports, examining the financial statements and documents as submitted to it, and thereafter taking appropriate action including recommendations on the accountable expenditure of public finances from the national revenue allocated to each County.
14.
It determined that pursuant to article 125 of the Constitution, in examining these financial statements and documents, the Senate or its Committees has the power to summon any person to appear before it for purposes of giving evidence or providing information. It reasoned that as the Chief Executive Officer, the role of the Governor under section 30(3)(f) of the County Governments Act is critical in fiscal management at the County level. However, it was clarified that governors may appear with such officers as they deem necessary to answer questions under consideration.
15.
Consequently, the court determined that the resolution passed by the Senate directing the National Treasury and Controller of Budget not to release funds to Counties was unconstitutional. It however held that by virtue of article 225 of the Constitution and section 96 of the Public Finance Management Act, the Cabinet Secretary responsible for matters of finance has the mandate to stop the transfer of funds to a State organ or a public entity, with the approval of Parliament and in accordance with the circumstances and the procedure established under section 92 to 99 of the Public Finance Management Act. The court further held that the Senate, in exercise of its oversight role, lacks the power to direct the Cabinet Secretary to stop the transfer of funds. It was the court’s further finding that the Controller of Budget under article 228(4) of the Constitution cannot approve any withdrawal from a public fund unless satisfied that the withdrawal is authorized by law, and conversely, it was held that the Controller of Budget cannot stop a withdrawal unless such stoppage is also authorized by law.
16.
On the last issue as to whether governors can be held accountable for transactions in the financial year during which the defunct local authorities together with the Transition Authority were in charge of County resources, the court determined that there was no evidence that any of the four County Governments had taken over assets and liabilities of the defunct local governments. The court opined that to call upon any Governor to answer questions on the financial affairs of local authorities during the financial year 2012/2013 which fell in Phase One of the transition period, would be an error on the part of the Senate. It directed that such questions ought to be addressed to the transition authority which had however not been joined as a party.
","D. Analysis
46.
After considering the parties’ respective cases, based on their pleadings,submissions and list of authorities, we have identified three issues whose determination will conclusively dispose of this appeal. The said issues are as follows:
i.
Whether the Senate is constitutionally mandated to summon County Governors in exercise of its oversight role pursuant to article 96(3) of the Constitution
ii.
Whether the Senate’s role of oversight is limited to the counties’ nationally allocated revenue or extends to locally generated revenue
iii.
Whether a County Assembly oversight role is limited to the County’s locally generated revenue or extends to the nationally allocated revenue.
a. On Senate’s Power to Summon Governors
47.
Both the Court of Appeal and High Court held that the Senate, is vested with powers to summon a County Governor either directly or through one of its Committees, to answer any question or provide any information regarding the expenditure and management of County revenue. The two superior courts based their decisions on the premise that being the County’s Chief Executive, the Governor is responsible for the management of County revenue and all other resources. It is therefore only logical that he or she is accountable to Senate, which is mandated to oversight such revenue under article 96 (3) of the Constitution.
48.
The role of the Senate is addressed by article 96 of the Constitution. Towards this end, sub-article (1) thereof provides that:
“
the Senate represents the counties, and serves to protect the interests of the counties and their governments.”
Sub-article (2) further provides that:
“
the Senate participates in the law-making function of Parliament by considering, debating and approving bills concerning counties, as provided in articles 109 to 113”.
Critically, sub-article (3) provides that:
“the Senate determines the allocation of national revenue among counties, as provided in article 217, and exercises oversight over national revenue allocated to the county governments.”
49.
The foregoing constitutional provisions as read together with articles 110 to 112, leave no doubt that the Senate is established to perform fundamental roles of governance concerning Counties. These are legislative, budgetary, and oversight. It has been granted considerable latitude in ensuring that County Governments operate at optimal and within accountability standards, if the objectives of devolution are to be realized. There is no way by which the Senate can perform such an important role without having the powers to summon a Governor and to require him/her to provide answers and offer explanations regarding the management of the County finances and related affairs. Without such power, the Senate would not be able to “protect the interests of the Counties”, nor would it be able to exercise effective oversight over national revenue allocated to Counties”
50.
Article 96(3) of the Constitution is buttressed by section 8 of the Public Finance Management Act No 18 of 2012, which provides for the responsibilities of the Senate Budget Committee in public finance matters as follows; (inter-alia)
“
(1)
The Committee of the Senate established to deal with budgetary and financial matters has responsibilities for the following matters, in addition to the functions set out in the Standing Orders—
…
c.
examine financial statements and other documents submitted to the Senate under Part IV of this Act, and make recommendations to the Senate for improving the management of government’s public finances; and
d.
monitor adherence by the Senate to the principles of public finance set out in the Constitution, and to the fiscal responsibility principles of this Act.”
51.
For the Senate to perform its functions as stipulated in section 8 of the PFMA Act, it must incorporate the input of the respective Chief Finance Officers of the Counties, who are in turn appointed by the Governor. The office that is ultimately answerable to the Senate, is that of the Governor. In view of the foregoing, we have little difficulty in agreeing with the Court of Appeal, in its conclusion that the Senate is constitutionally empowered, to summon Governors to appear before it or any of its committees for purposes of answering questions and providing requisite information. Having said that, we hasten to add that in appearing before Senate, there is nothing to stop a Governor from going with his/her technical team from the County Executive. By the same token, if the Senate is of the view that the questions to be answered or information to be provided do not need the personal input of the Governor, it may restrict its summons to the relevant County official or Executive Committee.
b. Whether the Senate’s oversight role is limited to the Counties’ Nationally Allocated Revenue or whether it extends to Locally Generated Revenue
52.
Regarding the extent of Senate’s oversight role, the Court of Appeal held that the same is limited to the nationally allocated revenue in view of article 96(3) of the Constitution. The appellant however submits that its oversight role is not limited to the nationally allocated revenue, but extends to revenue that is locally generated by Counties. The gist of its argument is that article 207 of the Constitution establishes only one depository for County revenue, which is the County Revenue Fund. This being the case, argues the appellant, it would be constitutionally impossible to separate the two types of revenue for purposes of oversight. Therefore, in its view, both the Senate and County Assemblies have the constitutional mandate to oversight all County revenue, whether nationally allocated or locally generated.
53.
On the other hand, the respondents submit that the Senate’s oversight role does not extend to locally generated revenue. According to them, such oversight role regarding this type of revenue, is the exclusive preserve of County Assemblies. They base their contention on the premise that to involve the Senate in the oversight of County generated revenue, would offend the doctrine of separation of powers. It is their submission that the devolved structure of Government under the 2010 Constitution jealously guards the local autonomy of Counties. As such, if Senate were to have powers of oversight over locally generated revenue, that would amount to an unconstitutional intrusion into the local affairs of Counties. The respondents also argue that given the fact that it is the County Assemblies that approve County budgets, they cannot be excluded from the oversight of nationally allocated revenue. We note that the appellant holds the same view regarding this particular issue.
54.
It is our view that in order to answer the question before us, it is necessary to revisit a number of constitutional provisions that address the related questions of County revenue, legislation concerning County finances, and the management of County finances. This exercise should enable us to develop a holistic construction and purposive interpretation of the relevant provisions. Towards this end, we have already cited article 96(3) of the Constitution, which clearly confers powers upon the Senate to oversight nationally allocated County revenue. We do not therefore intend to belabour the question whether such oversight role reposes in the appellant.
55.
Also, of relevance is article 185(3) of the Constitution which provides that:
“a County Assembly, while respecting the principle of separation of powers, may exercise oversight over the County Executive Committee and any other County executive organs”
56.
This provision, although permissively framed, clearly confers powers upon County Assemblies, to oversight the County Executive. This therefore means that among other things, County Assemblies can question the County Executives’ management of County affairs, including the use of revenue. What the County Assemblies cannot do, is to usurp the role of the County Executive under the guise of oversight, for that would offend the principle of separation of powers. The County Assemblies cannot for example, take over the role of implementing Government policies and projects. Their role is to provide checks and balances to the County Executives so as to promote transparency and accountability in the manner County affairs are run.
57.
By the same token, article 96(2) of the Constitution, which confers legislative powers upon Senate regarding bills concerning County Government, has to be read together with articles 109 to 113. Article 110 defines “a Bill concerning County Government as meaning:
a.
a Bill containing provisions affecting the functions and powers of the county governments set out in the Fourth Schedule;
b.
a Bill relating to the election of members of a county assembly or a county executive; and
c.
a Bill referred to in chapter twelve affecting the finances of county governments.
58.
These provisions entrust the Senate with the mandate of legislating for County Governments in fields that span the entire spectrum of governance. With regard to county finances, it is instructive to note that the foregoing provisions do not limit Senate’s legislative power to the nationally allocated revenue.
59.
Then there is article 207(1) of the Constitution which provides that:
“
there shall be established a Revenue Fund for each county government, into which shall be paid all money raised or received by or on behalf of the county government except money reasonably excluded by an Act of Parliament” [Emphasis added].
60.
Both parties have submitted that this provision makes it impossible for each of them to limit their oversight to either the nationally allocated or the locally generated revenue. It is a submission with which we can hardly disagree. A holistic reading of all the relevant provisions of the Constitution and the law, put in context, leads us to the conclusion that both the Senate and County Assemblies have the power to oversight County revenue whether nationally allocated or locally generated. The fact that County revenue is locally generated does not remove it from the purview of Senate oversight. Such revenue still falls within the rubric of “public finance” whose use must remain under the radar of scrutiny and oversight by the State organs established for that purpose. Similarly, the fact that County revenue is nationally allocated does not place it beyond the oversight of County Assemblies. Otherwise on what basis would the latter approve budgets and scrutinize their implementation?
61.
The purpose of the Constitution is to entrench good governance, the rule of law, accountability, transparency, and prudent management of public finances at both levels of Government. Such grand purpose cannot be served if either the Senate or County Assemblies begin to develop “centres of oversight/influence”. In this regard, the County Assemblies provide the first tier of oversight while the Senate provides the second and final tier of oversight.
62.
Additionally, we do not see how, by exercising its oversight role in the manner we have determined, Senate can be said to be violating the principle of Separation of Powers. Nor do we perceive a potential danger, of encroachment upon the mandate of the independent offices of the Controller of Budget or the Auditor General as contended by the respondents. What Senate cannot do under the guise of oversight, is to usurp the County Executives’ mandates or to purport to supervise County Assemblies.
63.
It is obvious that the foregoing conclusions are at variance with the holding by the Court of Appeal regarding this particular issue. We do not see the need to consider the third issue as the same has been comprehensively disposed of in the nature of our analysis and conclusions deriving therefrom.
E. Orders
64.
The following declarations are inevitable:
i.
In the performance of its oversight role over County revenue, the Senate has powers to summon County Governors to answer any questions or provide any requisite information;
ii.
The Senate’s oversight authority is not limited to nationally allocated revenue but extends to locally generated revenue by the Counties;
iii.
County Assemblies have the power of first tier oversight over County Government revenue, whether nationally allocated or locally generated;
iv.
No orders as to costs.",Allowed In Part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/57/eng@2022-10-07
Presidential Election Petition E005 of 2022,"Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 56 (KLR) (Election Petitions) (26 September 2022) (Judgment)",Judgement,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",6 September 2022,2022.0,Nairobi,Election,Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others,[2022] KESC 56 (KLR)               ,,"A Intoduction
1.
Every five years, millions of Kenyans cast a ballot for a presidential candidate and five other elective positions. From our history, it is almost inevitable in the course of electoral competition that disputes will arise at all these levels. This calls for effective electoral dispute resolution mechanisms because, again from our past, such disputes may lead to either overt or covert social conflict. Therefore, Kenya’squest for enhancement of democratic governance through electoral reforms has been long and is well documented. The paramount goal of these reform initiatives has been to secure the peoples’ right of franchise and the integrity of the electoral process. It is in this context that the Constitution sets out values, principles, and rules which embody standards aimed at ensuring that elections reflect the will of the people. Towards this end, the Constitution explicitly protects political rights, including the right to vote; stipulates principles of the electoral system; establishes the Independent Electoral and Boundaries Commission (IEBC) as the body vested with the mandate of conducting and supervising elections; and vests courts, including the Supreme Court, with the duty of resolving post-election disputes.
2.
The above constitutional framework is reinforced by an array of legislation whose overall objective is to guarantee fairness, credibility and legitimacy of the electoral process. The standards and norms stipulated in the Constitution and electoral laws are deliberately detailed. They prescribe the system of registration by eligible citizens as voters; how they cast the votes and how the votes are counted. Beyond voting and counting of votes, the laws regulate the mode of transmission of results to the tallying centres, verification, tallying and declaration of the final results.
3.
Despite efforts to reform the electoral process as aforesaid, some of the reactions from segments of the electorate that followed the declaration of the presidential election result on August 15, 2022, remains as a clear indication that IEBC is yet to gain universal public confidence and trust, with regard to its internal management of the Commission and of elections. At the heart of this consolidated Presidential Election Petition (Consolidated Petition), are contestations around one question; whether IEBC complied with the constitutional and legal standards in the conduct of the presidential election held on August 9, 2022. However, sight must not be lost of the fact that election related disputes are an intrinsic part of the electoral process. The credibility, integrity and legitimacy of that process is ultimately determined by the courts. In respect of a presidential election, this duty is reposed by the Constitution in the Supreme Court.
4.
To contextualize the controversy in this petition, the following brief factual basis is essential.
","i. Analysis of Evidence
25.
Needless to state, IEBC is the body constitutionally mandated to conduct elections in Kenya. Elections are considered free and fair when they are held in consonance with the general principles for the electoral system as articulated in article 81(e) of the Constitution as read with section 25 of the Independent Electoral and Boundaries Commission Act, No 9 of 2011 (IEBC Act) that is, if they are, conducted by secret ballot, free from violence, intimidation, improper influence or corruption; conducted by an independent body; transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner.
26.
At every election, IEBC is thus required by article 86 of the Constitution to ensure that:
“
…
(a)
whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;
(b)
the votes cast are counted, tabulated and the result announced promptly by the Presiding Officer at each polling station;
(c)
the results from the polling stations are openly and accurately collated and promptly announced by the Returning Officer; and
(d)
appropriate structures and mechanisms to eliminate electoral malpractices are put in place including the safekeeping of electoral materials.”
27.
The question, whether or not the 2022 Presidential Election passed constitutional and legal muster, can only be answered upon consideration and with reference to the threshold of the burden and standard of proof borne by the petitioners. It is ultimately therefore, a question of evidence tendered by the petitioners.
28.
The law of evidence complements the existing civil and criminal substantive and procedural laws in this country. The outcome of a case depends on the strength, accuracy and reliability of evidence. In an adversarial court system like ours, the courts and judges are ‘blind’, in the sense that they do not carry out any investigative roles or gather evidence on behalf of the parties before them. They depend on and determine disputes from what parties present. Consequently, cases are won or lost on the evidence placed before the court.
section 2 of the Evidence Act, declares that the statute:
“
(1)
… shall apply to all judicial proceedings in or before any court other than a Kadhi’s court, but not to proceedings before an arbitrator.” [Emphasis added].
Specific on the burden of proof, section 107 of the Evidence Act states as follows:
“
(1)
Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2)
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
29.
On proof of peculiar and particular facts, section 109 of the Evidence Act requires that:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
30.
And finally, section 110 provides that:
“
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.”
31.
This court first pronounced itself on these twin issues of burden and standard of proof in a Presidential Petition in Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others, SC Petition Nos 5, 3 & 4 of 2013 (consolidated); [2013] eKLR (Raila 2013); and reiterated them in its decisions in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others, SC Petition No 1 of 2017; [2017] eKLR (Raila 2017) and John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 3 others, SC Petition Nos 2 & 4 of 2017 (consolidated); [2017] eKLR (Harun Mwau case).
32.
Suffice to stress that the court has been consistent that a petitioner who seeks the nullification of elections for alleged non-conformity with the Constitution or the law or on the basis of irregularities and illegalities, has the duty to proffer cogent and credible evidence to prove those grounds to the satisfaction of the court. Once the court is convinced that the petitioner has discharged that burden, then the evidentiary burden shifts to the respondent (who in most election-related cases is IEBC), to present evidence by way of rebuttal of the assertion.
33.
In this context, we reiterate the words of this court as stated in Raila 2013 as follows:
“
[196]
Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It is on that basis that the respondent bears the burden of proving the contrary. This emerges from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law.
[197]
While it is conceivable that the law of elections can be infringed, especially through incompetence, malpractices or fraud attributable to the responsible agency, it behoves the person who thus alleges, to produce the necessary evidence in the first place – and thereafter, the evidential burden shifts, and keeps shifting.”
34.
As to the standard of proof, the court’s position rests with its decisions in Raila 2013, Raila 2017 and the Harun Mwau in which it adopted the intermediate standard striking a middle ground between the threshold of proof on a balance of probability in civil cases and beyond reasonable doubt in criminal trials, save for two instances; where allegations of criminal or quasi-criminal nature are made; and where there is data-specific electoral pre-condition and requirement for an outright win in the presidential election, such as those specified in article 138(4) of the Constitution. In those instances, the standard of proof must be beyond reasonable doubt. We are alive to the fact that different standards have been adopted in other jurisdictions across the globe, as demonstrated in the amici briefs in this Petition on behalf of LSK and ICJ-Kenya Chapter but we find no justification and we are not prepared at this point in time to depart from the test now firmly laid and applied in this jurisdiction. We can, in that regard, only reiterate, by way of emphasis, the observation made at paragraph 153 by the court in Raila 2017 that–
“
We recognize that some have criticized this standard of proof as unreasonable. However, as we have stated, electoral disputes are not ordinary civil proceedings hence reference to them as sui generis. It must be ascertainable, based on the evidence on record, that the allegations made are more probable to have occurred than not.”
There are therefore only two categories of proof in relation to election-related Petitions in this country: the application of the criminal standard of proof of beyond reasonable doubt, as explained and the intermediate standard of proof.
35.
With the foregoing clarification, we now turn to the issue under review; whether the Technology deployed by IEBC met the standards of integrity, verifiability, security, and transparency to guarantee accurate and verifiable results. There are also two related audit exercises that the petitioners have challenged; the systems audit under regulations 11 and 12 of the Elections (Technology) Regulations, 2017 and the audit of the Register of Voters under section 8A of the Elections Act. Bearing in mind always what we have said in the preceding paragraphs about the burden and standard of proof, the starting point is what the law sets as the yardstick of use of technology in electoral processes, and that is section 44 of the Elections Act. It provides as follows:
“
44.
Use of technology
1.
Subject to this section, there is established an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.
2.
The Commission shall, for purposes of subsection (1), develop a policy on the progressive use of technology in the electoral process.
3.
The Commission shall ensure that the technology in use under subsection (1) is simple, accurate, verifiable, secure, accountable and transparent.
4.
The Commission shall, in an open and transparent manner—
a.
procure and put in place the technology necessary for the conduct of a General Election at least one hundred and twenty days before such elections; and
b.
test, verify and deploy such technology at least sixty days before a General Election.
c.
The Commission shall, in consultation with the relevant agencies, institutions and stakeholders, make regulations for the better carrying into effect the provisions of this section.”
36.
For the reason that one of the complaints against IEBC is that it failed to engage a professional reputable firm to conduct an audit of the Register of Voters, it is apposite to also set out section 8A of the Elections Act which provides for audit of the Register of Voters as follows:
“
8A.
Audit of the Register of Voters
(1)
The Commission may, at least six months before a General Election, engage a professional reputable firm to conduct an audit of the Register of Voters for the purpose of—
a.
verifying the accuracy of the Register;
b.
recommending mechanisms of enhancing the accuracy of the Register; and
c.
updating the register.
…
(6)
The Commission shall implement the recommendations of the audit report within a period of thirty days of receipt of the report and submit its report to the National Assembly and the Senate.”
37.
There are divergent positions presented by both sides to the present dispute on the issue at hand. On the one hand, the petitioners have argued that the requirements of section 8A of the Elections Act were not met, while on the other, IEBC maintained that, on April 7, 2022, it did engage the firm of KPMG to carry out an audit of the Register of Voters. This exercise was completed and a Report submitted to IEBC on June 16, 2022.
38.
IEBC, however conceded that KPMG in its Report, pointed out several gaps on the state of the register. In addition to disclosing the findings contained in the Report by way of a briefing on June 20, 2022, it embarked on remedial measures aimed at implementing the recommendations ahead of publication of the final Report. Some of the remedial measures it undertook included committing to reviewing in the medium term, its registration processes with a view to strengthening them through the development and implementation, inter alia, of automated data input validation controls and exploring the use of Integrated Population Registration System in the enrolment process. In addition, IEBC committed to conducting periodic comparison of the Register of Voters with data held by relevant Government agencies.
39.
IEBC further confirmed that, by the time of the release of the Audit Report, on June 16, 2022 all transactions relating to the questionable transfer of voters had been reversed. Moreover, it suspended five (5) of its employees for their involvement in this infraction and referred the matter to the Office of the Director of Public Prosecutions for further investigation and action. Having taken all the necessary steps required of it by the KPMG Report, IEBC submitted the Audit Report to the Speakers of the National Assembly and Senate pursuant to section 8A of the Elections Act, and availed copies to political parties and any interested party.
40.
The petitioner’s submissions as supported by the sworn affidavits, regarding the integrity of the Register of Voters, were enough in our view, to shift the evidentiary burden of rebuttal to IEBC. IEBC undertook this burden, by giving a detailed explanation of the remedial measures it had instituted, to address the shortcomings as highlighted in paragraphs 38 and 39 above. Consequently, in the absence of evidence to the contrary, we find merit in IEBC’s explanation. We further take note that, while the Audit Report was released to the public seven days before the 9th August election, the Register of Voters was used at the election as a medium for identification of voters without any apparent anomalies. Likewise, IEBC successfully deployed a Biometric Voter Register (BVR) system which captured unique features of a voter’s facial image, fingerprints and civil data to register and update voter details across the country and in the diaspora.
41.
Furthermore and in compliance with section 6A of the Elections Act, IEBC opened the Register of Voters for verification of biometric data by members of the public for a period of 30 days from May 4, 2022 to June 2, 2022. Thereafter, the Register was revised to address issues arising from the verification exercise. KPMG then audited the Register and we are satisfied that the inconsistencies and inaccuracies identified during the Audit were successfully addressed.
42.
In the context of simplicity of the technology deployed, we note that the electoral system is designed to handle voter registration of over 22 million voters with unique biometric details. Further, in all the 46,231 polling stations KIEMS kits are mapped to the specific geographical area of the polling stations and to specific presiding officers. It is also designed to be as secure as possible to prevent infiltration. The Public Portal, on the other hand, is designed to handle numerous visits to the website to access the transmitted Forms 34A without causing it to crash. Such a system by design cannot be expected to be a simple one in the ordinary sense. Its features are not configured for ordinary everyday use by everyone without suitable training. In any event, there has been no specific complaint by any voter, agent or member of the public over their inability to use or frustrations in the use of this technology.
43.
It is, clearly for this reason that IEBC, rolled out an elaborate training program aimed at building capacity and competence of its staff members and candidates’ agents on the KIEMS system. It also conducted voter education and sensitization activities across the country targeting stakeholders including political parties, civil society and Government agencies through print and electronic media, in fulfillment of the provisions of article 88(4)(g) of the Constitution as read with section 40 of the Elections Act. That was the evidence of its Chairperson, which was never rebutted.
44.
Guided by section 44 (2) of the Elections Act which requires IEBC to
“… develop a policy on the progressive use of technology in the electoral process”,
we note that the KIEMS system was initially created as four different systems operated separately during the 2013 General Election, but since 2017 the said system has been fully integrated. Generally therefore, there is consensus that there has been a gradual but sustained advancement in election technology from pre-2007 and 2013 elections.
45.
Technology, like all human inventions, no matter how advanced, is bound to fail at one point or another, leading to a bad user experience. Hardware breaks, software gets bugs, and connectivity disappears, among many challenges in automation. It is perhaps this realization that led the court in Raila 2013, Raila 2017 and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Petition No 2B of 2014; [2014] eKLR (Gatirau Munya case) to state that it is a global truism that no conduct of any election can be perfect. Similar reflections may have informed the insertion of section 44A to the Elections Act directing IEBC to avail, alongside the use of technology required by section 44, a complementary mechanism in the event of technical failure. section 44A provides as follows:
“
Notwithstanding the provisions of section 44, the Commission shall put in place a complementary mechanism for identification of voters that is simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commission complies with the provisions of article 38 of the Constitution.”
We restate our position that the practical realities of election administration are such that imperfections in the process are inevitable. Some imperfections may have far-reaching ramifications, which in turn may lead to nullification of an election while others may not reach that level or degree of significance. The nullification of the presidential election of 2017 was partly based on this reality.
46.
The petitioners claimed and IEBC admitted that KIEMS kits failed in certain polling stations. But the latter, guided by the law and the decision of the Court of Appeal in United Democratic Alliance Party case, explained that the complementary mechanisms that it had put in place took two forms; where a voter could not be identified using their biometric data, the presiding officers were to use the alphanumeric search in the presence of agents and once found, the voter was to fill Form 32A. The second complementary system took the form of a printout of the Register of Voters which was used where the KIEMS kits failed completely with no possibility of repair or replacement. Once the details of the voter were confirmed manually, the presiding officer would then allow the voter to cast his/her vote.
47.
Whereas, it is not in dispute that the KIEMS kits failed in 235 polling stations in Kibwezi West Constituency and parts of Kakamega County, 86,889 voters were granted the right to vote manually and the requisite Forms 32A duly filled. As such, the failure of the KIEMS kits in the identified polling stations cannot be taken as a yardstick of the performance of KIEMS kits in the whole country. In any case, all affected voters who could have complained were not disenfranchised as they were able to exercise their democratic right to vote manually.
48.
In addition to the above, by dint of section 44(4) aforesaid, IEBC must in an open and transparent manner, procure and put in place the technology necessary for the conduct of a general election at least one hundred and twenty days before such elections. The two limbs to this provision are the open and transparent procurement of the technology and the timelines within which to put it in place. According to Michael Ouma, in his affidavit evidence, on April 14, 2021, IEBC advertised an open international tender for the supply, delivery, installation, testing, commissioning, support and maintenance of the KIEMS, hardware equipment and accessories. At the close of the tender period, it received bids from five firms and upon evaluation, Smartmatic was successful and was awarded the tender thereto. A contract between IEBC and the firm was concluded on November 25, 2021. This award of contract was contested before the Public Procurement Administrative Review Board, the High Court and eventually the Court of Appeal with the ultimate result that the award was upheld. It is not open for any party or even this court to revisit that tender in the circumstances.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/56/eng@2022-09-26
Petition 22 (E25) of 2022,Njiru & 10 others v Ruto & 5 others; Azimio la Umoja One-Kenya Coalition & 3 others (Interested Parties) (Petition 22 (E25) of 2022) [2022] KESC 55 (KLR) (Civ) (6 September 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Koome,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",5 September 2022,2022.0,Nairobi,Civil,Njiru & 10 others v Ruto & 5 others; Azimio la Umoja One-Kenya Coalition & 3 others,[2022] KESC 55 (KLR)               ,,"Brief facts
The applicants filed a petition at the Supreme Court on August 8, 2022, seeking among others; a declaration that the 2nd respondent was unfit and unsuitable to hold office of Deputy President; and a declaration that the nomination of the 2nd respondent as a running mate by the 1st respondent was invalid, null and void ab initio. The applicants also filed the instant application and sought an order of conservatory injunction to restrain the 1st and 2nd respondents from being sworn into offices of President and Deputy President respectively, in the event they got elected during the general elections then scheduled for August 9, 2022. 
The 1st to 5th respondents filed notices of preliminary objection challenging the jurisdiction of the court to entertain the instant appeal and motion. They argued that the court was only clothed with exclusive original jurisdiction pursuant to article 140 of the Constitution of Kenya, 2010 (Constitution) and that the petition failed the test of justiciability and ripeness. The applicants submitted that the court was vested with exclusive original jurisdiction under article 163(3)(a) of the Constitution. 
Issues
What was the nature of the exclusive original jurisdiction to determine disputes relating to presidential elections? ","We have carefully considered the reasoned arguments by all parties as pertains the jurisdiction of this court, to hear and determine disputes relating to the election to the office of President arising under article 140 of the Constitution. To this end, where jurisdictional questions have arisen, article 163 of the Constitution is the first point of call and the guiding provision. Specifically, Article 163 (3) (a) provides that:
“
The Supreme Court shall have:
exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under article 140” [emphasis added].
9.
Article 140 (1) on the other hand provides that:
“
A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election” [emphasis added].
10.
The Constitution therefore confers upon the Supreme Court, exclusive original jurisdiction to determine disputes relating to the election of the President, limited only to the circumstances contemplated under article 140 (1). In the case of Okiya Omtatah Okoiti v. Independent Electoral and Boundaries Commission & others; SC Petition No. 18 of 2017, [2020] eKLR, the court has, with finality settled the question of its jurisdiction under article 163 (3) (a) as follows:
“
We hasten to restate the position that, the Constitution confers upon the Supreme Court, exclusive original jurisdiction, to determine disputes relating to the election of the President arising under article 140 only. Though exclusive and original, this jurisdiction is limited to the circumstances contemplated in article 140 (1). It is not a blanket jurisdiction that empowers the Supreme Court, to extend its judicial authority over any and all interpretational questions, touching upon the election of the President. It must be further emphasized that, article 163 (3) of the Constitution does not oust the High Court’s original jurisdiction to interpret the Constitution under article 165 (3) (d). The Supreme Court’s exclusive and original jurisdiction to determine the validity of a presidential election, only kicks in after the declaration of results, following a petition challenging the election.
…
(52)
The Supreme Court cannot determine the validity or otherwise of a presidential election, before the same is held and the results thereof declared. It is one thing for the court to pronounce itself on a constitutional or legal question, but it is another thing to determine the validity of an election. In other words, the Supreme Court cannot anticipate the validity of a presidential election, within the meaning of article 140 (1) of the Constitution” [emphasis added].
11.
It is general knowledge that the Presidential Elections were held on August 9, 2022 and the declaration of results of the Presidential Election made on the August 15, 2022. On the other hand, the petition and motion before us were filed on August 8, 2022, a day before the general elections and seven days before the declaration of the results of the Presidential Election. Therefore, the applicants are inviting the court to assume jurisdiction outside the confines of article 163 (3) as read with article 140 (1) of the Constitution. They are inviting the court to unconstitutionally expand its jurisdiction. To wait until a day to the general elections, before seeking the orders of such magnitude, casts the petitioners/applicants in a cynical scheme of abuse of the processes of this court.
12.
Consequently, applying the settled principles, we find that this court lacks jurisdiction to hear and determine the petition and also the present application. We reiterate that this court’s jurisdiction under article 163 (3) (a) of the Constitution only kicks in after the declaration of the presidential election results and subsequent to a competent petition challenging the election.
13.
Accordingly, we make the following orders:
i.
The objections raised by the 1st to 5th respondents in respect of the notice of motion dated August 5, 2022 and petition dated August 5, 2022 are allowed;
ii.
The notice of motion dated August 5, 2022 and petition dated August 5, 2022, are for the reasons given, incompetent and are hereby struck out;
iii.
The applicants shall bear costs.
14.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/55/eng@2022-09-06
Presidential Election Petition E005 of 2022,"Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 54 (KLR) (Election Petitions) (5 September 2022) (Judgment)",Judgement,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",30 August 2022,2022.0,Nairobi,Election,Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others,[2022] KESC 54 (KLR)               ,,"Brief facts
On August 9, 2022 Kenya held the third general election under the Constitution of Kenya, 2010 (Constitution). Transmission of the results of the general election was done via the Kenya Integrated Electoral Management System (KIEMS); technology used in the biometric voter registration, and, on the election day, for voter identification as well as the transmission of election results from polling stations to the National Tallying Centre.
On August 15, 2017, the chairperson of the Independent Electoral and Boundaries Commission (IEBC) (4th respondent) declared the 1st respondent, William Samoei Ruto, the Presidential Candidate for the United Democratic Alliance Party, (1st respondent) the President-elect with 7,176,141 votes (50.49% of presidential votes cast) and the 1st petitioner, Raila Amollo Odinga as the runner’s up with 6,942,930 votes (48.85% of presidential votes cast).
Aggrieved by the results and the process by which the results were obtained and declared, the 1st petitioners, Raila Odinga and Martha Karua, who were the presidential and deputy presidential candidates respectively of the Azimio La Umoja Coalition of parties filed the instant petition challenging the declared result of that presidential election (the election). Alongside the 1st petitioners were a group of 6 other petitioners that also challenged the result of the presidential election; in total they filed 9 presidential election petitions.
The 1st, 3rd and 4th petitioners in the consolidated petition, challenged the technology used by IEBC during the 2022 General Election. They pleaded that the manner in which technology was deployed and utilized fell short of the prescribed constitutional and statutory standards. In response, IEBC submitted that the electoral system met the constitutional threshold; that all necessary information was accessed only by authorized persons; the information was accurate, complete and protected from malicious modification either by authorized or unauthorized persons; it maintained an audit trail on activities related to information; and the information was available and could be authenticated through the use of various security features.
The 1st petitioners further alleged that the results of the presidential election were staged.  They claimed that a person who had access to the Result Transition System (RTS), intercepted, detained or stored Forms 34A temporarily to convert or manipulate them before uploading them on IEBC’s public portal. IEBC through its chairperson denied staging an unauthorized intrusion of the RTS.
The petitioners also challenged the authority and the decision of the IEBC or its chairperson to postpone the gubernatorial elections in Kakamega and Mombasa counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency. They contended that the IEBC had no jurisdiction to postpone elections in those areas. They further contended that section 55B of the Elections Act was inconsistent with the Constitution and void to the extent that it purported to donate to IEBC power to postpone elections in the constituency, county or ward contrary to the Constitution.
Those assertions were denied by IEBC and its chairperson. However, they admitted that they experienced confusion with the printed ballot papers and explained that they only discovered the mix-up on the eve of the election when the ballot papers were being distributed to the polling stations; that as a practice, ballot papers could only be opened on the eve of the election day to avoid any mischief; and that by the time the mix-up was discovered, it was logistically impossible to print and replace the ballots papers in time for the election.
The petitioners also contested the formula used by the IEBC or its chairperson to declare that the 1st respondent had obtained the threshold of 50% + 1 of the votes cast in the presidential election. In particular, they challenged the rounding off of votes cast.
Lastly the petitioners challenged the results of the presidential election on account of the opaque nature of the verification exercise at the National Tallying Center. On August 15, 2022, 4 commissioners of the IEBC held a press conference and termed the results “opaque” due to the manner in which the chairperson had been conducting the verification and tallying exercise, calling into question the credibility of the entire election. They further submitted that being in the majority out of the seven-member Commission, their view should prevail, and the election should be nullified. It was the petitioners’ argument, therefore, that a dysfunctional Commission could not deliver a credible election.
Issues
Whether the technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results.
Whether there was interference with the uploading and transmission of Forms 34A from the polling stations to the IEBC Public Portal.
Whether there was a difference between Forms 34A uploaded on the IEBC Public Portal and the Forms 34A received at the National Tallying Centre, and the Forms 34A issued to agents at the polling stations.
Whether the IEBC acted ultra vires their powers in postponing gubernatorial, parliamentary and ward elections in select counties during a general election due to some unforeseen hindrances.
Whether postponement of gubernatorial elections in Kakamega and Mombasa counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency by the IEBC resulted in voter suppression to the detriment of the petitioners.
Whether the role of verifying and tallying of votes as received from polling stations countrywide could be undertaken by the chairperson of the IEBC to the exclusion of other IEBC commissioners.
Whether regulation 87(3) of the Elections (General) Regulations was unconstitutional, to the extent that it purported to vest the power of verification and tallying in the chairperson of IEBC.
Whether the discrepancies between the total number of votes cast for presidential candidates vis-à-vis the total number of votes cast for other elective positions by itself was an indicator of fraud.
Which party bore the burden of proof in election petitions?
Whether the IEBC carried out the verification, tallying and declaration of results in accordance with article 138(3)(c) and 138(10) of the Constitution.
Whether the declared President-elect attained 50%+1 of all the votes cast in accordance with article 138(4) of the Constitution.
Whether there were irregularities and illegalities of such magnitude as to affect the final result of the presidential election.","B. Issues for Determination
6.
From the consolidated petition, responses and submissions filed thereto by all the parties, the court crystallised the following issues for determination:
1.
Whether the technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, verifiability, security, and transparency to guarantee accurate and verifiable results;
2.
Whether there was interference with the uploading and transmission of Forms 34A from the Polling Stations to the IEBC Public Portal;
3.
Whether there was a difference between Forms 34A uploaded on the IEBC Public Portal and the Forms 34A received at the National Tallying Centre, and the Forms 34A issued to agents at the Polling Stations;
4.
Whether the postponement of Gubernatorial Elections in Kakamega and Mombasa counties, Parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South Constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency resulted in voter suppression to the detriment of the Petitioners in Petition No E005 of 2022;
5.
Whether there were unexplainable discrepancies between the votes cast for presidential candidates and other elective positions;
6.
Whether the IEBC carried out the verification, tallying, and declaration of results in accordance with article 138(3)(c) and 138(10) of the Constitution;
7.
Whether the declared President-elect attained 50%+1 of all the votes cast in accordance with article 138(4) of the Constitution;
8.
Whether there were irregularities and illegalities of such magnitude as to affect the final result of the Presidential Election;
9.
What reliefs and orders can the court grant/issue?
7.
Having considered and deliberated upon the consolidated petition, the attendant responses, submissions and the amici curiae briefs we now make the following determination:
(i) Whether the technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results
8.
As noted in the introduction, lack of trust in the electoral system has endured in Kenya for a long time. This led to the introduction of electoral technology following the recommendations made by the Independent Review Commission on the General Elections held on the December 27, 2007 (Kriegler Commission Report). The Report recommended integration of technology into Kenya’s electoral processes for registration, identification of voters and transmission of results. These were enacted in section 44 of the Elections Act, 2011. By this statute, IEBC is enjoined to adopt technology in the electoral process. As a consequence, the IEBC developed a technology known as Kenya Integrated Electoral Management System (KIEMS) making Kenya’s election process hybrid as it employed both technology and manual processes.
9.
The 1st, 3rd and 4th petitioners in the consolidated Petition, challenge the technology used by IEBC during the 2022 General Election. They plead that the manner in which technology was deployed and utilized fell short of the prescribed constitutional and statutory standards. As regards the audit of the Register of Voters, they urge that IEBC, pursuant to its Elections Operations Plan, committed itself to conducting an audit of the Register of Voters by March 31, 2022. To the contrary, they allege, it only publicly availed the audit report on its website on August 2, 2022, 7 days to the election.
10.
In this report, it was noted that the auditors established serious gaps and risks to the electoral process including; numerous cases of change of voting stations without knowledge or approval of the affected voters; grant of voter update privileges in IEBC IDMS to 14 user accounts unrelated to voter registration;reducing the accountability of user activities in the Register of Voters; presence of 11 active generic accounts on the ABIS application and two ABIS users with the same log in identification; risking unauthorized system users possible transference; change of particulars or deactivation of voters in the system; IEBC’s failure to set up access recertification and user activity review process; and IEBC’s failure to respond to request by auditors for crucial information.
11.
On the integrity of the technology deployed, the 7th petitioner contends that in order to comply with article 86 of the Constitution and section 44 of the Elections Act, the technology deployed must be simple, accurate, verifiable, secure, accountable and transparent. On the simplicity of technology, the 7th petitioner contends that the KIEMS kit failed the test as they were not easily usable by ordinary citizens without expert knowledge. They further assert that IEBC was expected to procure and put in place a technology necessary for the conduct of the General Election at least one hundred and twenty (120) days before the election and ensure consultation with the relevant agencies, institutions and stakeholders.
12.
Furthermore, the petitioners allege that IEBC violated its constitutional duty by delegating the design, implementation and conduct of the KIEMS component of the election to a foreign company-Smartmatic International Holding BV (Smartmatic). As a result, IEBC’s staff and the public did not have full comprehension of the KIEMS component. They conclude therefore that IEBC abdicated and surrendered its role to conduct elections to Smartmatic; and that IEBC vigorously fought any attempt to subject Smartmatic’s activities to accountability and transparency including the safeguards required by regulations 61(4)(a), 69(1)(d), (e)(iii) and 75(6) of the Elections (General) Regulations, 2012.
13.
In response, IEBC has submitted that the electoral system met the constitutional threshold; that all necessary information was accessed only by authorized persons; the information was accurate, complete and protected from malicious modification either by authorized or unauthorized persons; it maintained an audit trail on activities related to information; and the information was available and could be authenticated through the use of various security features.
14.
In further response, IEBC contended that they engaged KPMG on April 7, 2022 to conduct an Audit of the Register of Voters, which was submitted on June 18, 2022. In addition, it issued a briefing on the Report on June 20, 2022, summarizing the thematic areas therein and disclosing its findings as well as actions taken to remedy the issues identified. It also conducted its annual audit in compliance with regulations 11 and 12 of the Election (Technology) Regulations, 2017 and a Certification of Compliance issued to it on August 3, 2022.
15.
IEBC relied on affidavits sworn by Michael Ouma, Moses Sunkuli and Marjan Hussein Marjan on August 26, 2022 to the effect that it published the interim report by KPMG on June 8, 2022 and embarked on remedial measures aimed at effecting the recommendations ahead of publication of the final report. It was asserted that it could not publish the full final Audit Report as doing so would compromise the integrity and security of the electoral technology system, considering the provisions of the Data Protection Act, which imposes a duty to protect the data of Kenyan voters.
16.
On the other hand, the 1st and 2nd respondents urge that even if there was failure of technology, it did not vitiate the result of the Presidential Election.
17.
Upon considering all the pleadings, submissions and the ICT scrutiny and Inspection, tallying and recount Report which fully examined the IEBC’s Result Transmission System (RTS), we are not persuaded by the allegation that the technology deployed by IEBC failed the standard of article 86(a) of the Constitution on integrity, verifiability, security and transparency for the following reasons:
(a)
Whereas it is true that the KIEMS kit failed in 235 polling stations, 86,889 voters were granted the right to vote manually and the requisite Forms 32A duly filled. This happened successfully in Kibwezi West Constituency and parts of Kakamega County.
(b)
While the Audit Report was released to the public seven days before the 9th August election, the Register of Voters was used at the election without any apparent anomalies.
(c)
Smartmatic was procured to provide the necessary technological infrastructure as IEBC did not have the capacity to do so. No credible evidence meeting the requisite standard of proof of access to the system by unauthorized persons was adduced by the petitioners.
(d)
The Scrutiny Report prepared by the Registrar of this court did not reveal any security breaches of the IEBC’s RTS.
(e)
IEBC successfully deployed a Biometric Voter Register (BVR) system which captures unique features of a voter’s facial image, fingerprints and civil data, to register and update voter details across the country and in the diaspora. These features are unique to each voter.
(f)
In compliance with section 6A of the Elections Act, 2011, IEBC opened the Register of Voters for verification of biometric data by members of the public for a period of 30 days. Thereafter, the Register was revised to address issues arising from the verification exercise. KPMG then audited the Register and we are satisfied that the inconsistencies and inaccuracies identified during the Audit were successfully addressed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/54/eng@2022-09-05
Presidential Election Petition E003 of 2022,Khalifa & 3 others v Independent Electoral and Boundaries Commission & 3 others (Presidential Election Petition E003 of 2022) [2022] KESC 49 (KLR) (Election Petitions) (30 August 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",30 August 2024,2022.0,Nairobi,Election,Khalifa & 3 others v Independent Electoral and Boundaries Commission & 3 others,[2022] KESC 49 (KLR)               ,,"Brief facts
The 3rd respondent filed the application in which he sought leave to strike out the name of the Attorney General in petition No. E003 of 2022 on grounds of misjoinder, outside the prescribed time limits.
Issues
Whether in determining applications in the presidential election petition, the Supreme Court could determine an application filed out of time.","This application is dated the August 27, 2022 and filed on the August 29, 2022 by William Samoei Ruto, (the 3rd respondent). He seeks leave to strike out the name of the Attorney General in Petition No E003 of 2022 on grounds of misjoinder. It is supported by the affidavit of William Samoei Ruto, sworn on the 27th August, 2022 and filed on the August 29, 2022. It is brought pursuant to rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017.
2.
We have considered the application, affidavit in support, as well as the petitioners’ replying affidavit and submissions in opposition thereto. We find that the application, which was filed on the August 29, 2022 at 4:45 pm was filed out of time, is therefore incompetent and an abuse of the court process. In any event, the court has determined the issue in the said application in its ruling delivered on the August 29, 2022 in Petition E002 of 2022.
3.
Consequently, the application is hereby dismissed with no orders as to costs.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/49/eng@2022-08-30
Presidential Election Petition 1 of 2022,"Wafula v Odinga, Flag Bearer for Azimio La Umoja One Kenya Alliance & 5 others; Royal Media (Media Television) & 4 others (Subsequent Party) (Presidential Election Petition 1 of 2022) [2022] KESC 51 (KLR) (Election Petitions) (30 August 2022) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",30 August 2024,2022.0,Nairobi,Election,"Wafula v Odinga, Flag Bearer for Azimio La Umoja One Kenya Alliance & 5 others; Royal Media (Media Television) & 4 others (Subsequent Party) ",[2022] KESC 51 (KLR)               ,,"Brief facts
The applicant filed the instant application seeking to prosecute a draft preliminary objection and counterclaim as a pauper due to lack of funds for payment of court fees totaling to Kshs. 1,004,000. The applicant contended that there was manipulation of the IEBC tallying server by the commanders of the paramilitary Azimio la Umoja One Kenya Kwanza Alliance of Political Parties.
Issues
Whether a party could prosecute a preliminary objection and a counterclaim in a presidential election petition as pauper where the party was neither a petitioner or a respondent.
","Upon perusing the notice of motion dated August 26, 2022 seeking to prosecute a draft preliminary objection and counterclaim as a pauper due to lack of funds for payment of court fees totaling to Kshs 1,004,000; and
2.
Upon reading the supporting affidavit of Benjamin Barasa Wafula sworn on August 26, 2022; and
3.
Upon perusing the grounds adduced by the applicant in support of the orders sought wherein he contends that he was employed by Pan African Paper Mills (EA) Company Ltd from January 3, 1983 to September 23, 2003 when his employment was terminated after he supported the government to raise the Pan African Paper Mills EA Company Ltd employees’ salaries, who were underpaid by 32.9%, that after his termination as a Quality Control Checker and Trade Unionist, his capacity to secure employment was crippled affecting his financial status; and
4.
Furthermore, considering the applicant’s preliminary objection and counterclaim where he contends there were manipulation of the IEBC tallying server by James Orengo, Charity Ngilu, Stephen Kalonzo and Ali Hassan Joho being the commanders of the paramilitary Azimio la Umoja One Kenya Kwanza Alliance of Political Parties; and
5.
Having considered the Supreme Court (Presidential Election Petition) Rules, 2017 it is evident to us that the applicant is not a petitioner and/or has not been sued as a respondent in any of the Presidential Election Petitions before us, he has also not sought to participate as a friend of the court. Consequently, we find that the application before us is not merited and is therefore, dismissed.
6.
For the foregoing reasons, the final orders of the court are as follows:
Orders:
a.
The application dated August 26, 2022 seeking waiver of fees; and leave to prosecute a preliminary objection and counterclaim is hereby dismissed.
b.
There shall be no orders as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/51/eng@2022-08-30
Election Petition E002 of 2022,"Youth Advocacy for Africa (YAA) & 7 others v Independent Electoral and Boundaries Commission & 17 others (Election Petition E002, E003 & E005 of 2022 (Consolidated)) [2022] KESC 42 (KLR) (Election Petitions) (30 August 2022) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",30 August 2024,2022.0,Nairobi,Election,Youth Advocacy for Africa,[2022] KESC 42 (KLR)               ,,"Brief facts
The petitioners in Presidential Election Petition No. E002 of 2022 (the applicants) through an application sought court orders to compel the Independent Electoral and Boundaries Commission (IEBC) to give the petitioners or any person or expert engaged by IEBC in relation to the petition, the complete unedited soft copy of the Voters Register; to give the petitioners full and unfettered physical and remote access to electronic device(s) used to capture Form 34A’s and 34B’s on the Kenya Integrated Election Management System (KIEMS) and transmitted to the Constituency Tallying Centre and the National Tallying Centre; to give the applicants full and unfettered physical and remote access to any server(s) at the constituency tallying centre for storing and transmitting voting information and that the servers would be forensically imaged to capture inter alia, metadata such as data files for all Forms 34A and Forms 34B among other orders regarding the technology used in the presidential election that was conducted on August 2022. The petitioners also sought court order for inspection, scrutiny and recount for various polling stations. 
Issues
What criteria should courts employ in determining applications for scrutiny and recount of election results?
Whether the Supreme Court in determining the presidential election petition could grant orders to direct the production of contracts with terms of reference between third parties who were not parties to petitions before the court.
Whether an order allowing for the filing of further affidavits arising from the attainment of the information from the scrutiny exercise could issue given the strict timelines applicable to the presidential election petition.",".
Upon reading the grounds in support of the application, the averments in the supporting affidavit sworn by Martha Karua on behalf of the petitioners and their written submissions filed and dated August 26, 2022 where the applicants claim that IEBC conducted and supervised the impugned election of 9th August and on August 15, 2022, the Chairperson purported to announce William Ruto as president-elect and gazetted him in Notice No CXXIV on August 16, 2022; that the impugned declaration of the presidential results were made in flagrant violation of the Constitution and the Electoral Laws; that the electronic transmissions of results from polling stations to the Constituency Tallying Centre were not secure so as to deliver a free, fair, secure, credible, transparent, accurate and verifiable election; that the statutory forms 34 A, B, and C used to declare the results were fraudulently manipulated or altered by compromised staff of IEBC and third parties with the connivance of the Chairperson and senior staff of IEBC in order to achieve a predetermined outcome in favour of the President-elect and further submission that the results transmissions system was demonstrably compromised and there was corroboration with glaring irregularities, inaccuracies, inconsistencies in the physical and public portal result forms as demonstrated to court, with the applicants relying on Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others, Civil Appeal No. 105 of 2017; [2017] eKLR (The Maina Kiai Case);
7.
We Now opine as follows:
i)
The applicants have in their applications, set out their prayers specifically asking for scrutiny as well as the information they intend to be granted access to. We note that this court, while considering an application for access and scrutiny in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others, Presidential Petition No 1 of 2017; [2017] eKLR determined that, while considering a request for scrutiny of either the Forms or the technology used in an election, the request for scrutiny must be made for a sufficient reason and that any prayer that would in effect be a fishing exercise to procure fresh evidence not already contained in the petition must be rejected. Further any prayer couched in general terms, not pleaded with specificity or such request is impracticable in terms of scope and time will also be declined. Furthermore, we noted that, because of the narrow timelines granted by the Constitution to hear and determine a presidential election dispute, only reasonable, practical and helpful orders should be issued in that regard. We shall maintain that criteria in determining the present applications.
ii)
Section 12 of the Supreme Court Act obligates IEBC to submit to the court certified copies of the documents used to declare the results of the Presidential Election including the Forms used to announce the results of the elections at the polling station and the constituency tallying center and to declare the result at the national tallying center. All these documents are already in the custody of the court and are available to the parties upon request.
iii)
Flowing from the above therefore and with regard to prayer 1 in Presidential Election Petition No E002 of 2022 as well as prayer 8 in Presidential Election Petition No. E003 of 2022 on the availing of the soft copy of the voters register as well prayer 8 in Presidential Election Petition No E003 of 2022 seeking scrutiny of the biometric voter register, we see no reason to grant these prayers as the register is already in the public domain and in any event, no justification in the context of the dispute before us has been given why the same should be provided.
iv)
On prayer 2 in Presidential Election Petition No E002 of 2022 which touches on access to all KIEMS kits and servers for all Constituency Tallying Centers, we note that such a request is unrealistic given the short timelines for the hearing and determination of the petitions before us.
v)
With regard to prayers 4,5, 6, 7, 8, and 10 in Presidential Election Petition No E002 of 2022 as well as Prayer 2 in Presidential Election Petition No. E003 of 2022 and Prayers 1 and 2 in Presidential Election Petition No E005 of 2022 which majorly touch on the technological aspects of the presidential election petitions, we note that the orders sought are not practicable, reasonable and helpful to ensure that we reach a just and fair determination of the petitions. They are also couched in general terms and are vague.
vi)
With regard to prayer 1 in petition Presidential Election Petition No E005 of 2022 asking for the terms of reference between Smartmatic International and Local Service Providers, we note that there may be possible legal issues that may arise as this Court cannot blindly grant orders to direct the production of contracts with terms of reference between third parties who are not parties to the petitions before us. Smartmatic International is not a party to these proceedings neither are local service providers and to demand that such terms of reference be accessed by the applicants is impractical and may cause unnecessary delay in the hearing and determination of the election petitions before us.
vii)
Regarding prayer 6 by the applicants in Presidential Election Petition No E005 of 2022 on the filing of further affidavits arising from the attainment of the information from the scrutiny exercise, noting the time left for the hearing and determination of the petition from the date of delivery of this ruling, such an order would only but delay the proceedings and will occasion prejudice to the respondents who will not be able to respond to the issues raised in the affidavits. That prayer is therefore disallowed.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/42/eng@2022-08-30
Presidential Election Petition E005 of 2022,"Odinga & 4 others v Independent Electoral Boundaries Commission & 7 others (Presidential Election Petition E005, E002 & E004 of 2022 (Consolidated)) [2022] KESC 43 (KLR) (29 August 2022) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",30 August 2024,2022.0,Nairobi,Election,Odinga & 4 others v Independent Electoral Boundaries Commission & 7 others,[2022] KESC 43 (KLR)               ,,"Brief facts
The 9th applicant (HE Dr. William Samoei Ruto) sought to strike out the names of the 3rd to 8th respondents from the presidential election petitions. The applicant contended that the respondents, being members of the 1st respondent (being Commissioners of the IEBC), an independent constitutional and corporate entity, could not be parties to the petitions. The application also sought to strike out the 13th respondent, the Office of the Attorney General, from the presidential election petition on the grounds that the respondent had no role in the petition, unless the instant court granted leave for him to be joined as a friend of the court. 
Issues
Whether the inclusion of IEBC commissioners as respondents in a presidential election petition violated section 15 of the IEBC Act which insulated the commissioners from being personally liable for any acts done in good faith in execution of their mandate.
Whether the office of the Attorney General’s role in a presidential election petition was limited to being a friend of the court.
","1.
William Samoei Ruto, (the applicant) has been named as the 9th respondent in Petitions E002, E004, and E005 respectively. By three separate applications all dated the August 27, 2022, he seeks to strike out firstly, the names of the 3rd to 8th respondents in Petitions E004 and E005 respectively, and secondly, the names of the 3rd to 8th and 13th respondents in Petition E002.
2.
Regarding the 3rd to 8th respondents in the three petitions, the applicant submits that the said respondents, being members of the 1st respondent, an independent constitutional and corporate entity, cannot be sued in their individual capacity. In support, the applicant cites section 15 of the IEBC Act, 2011 which insulates and protects the respondents, from being personally liable for any acts done in good faith and in the execution of the 1st respondent’s powers, functions and duties.
3.
As for the 13th respondent in Petition E002, the applicant submits that the said respondent has no role in this petition, unless this court grants leave for him to be joined as a Friend of the court. Further, the applicant argues that the Supreme Court (Presidential Election) Rules, 2017 do not envisage the 13th respondent as a respondent in a petition challenging the Presidential Elections.
4.
We have considered the applications and written submissions in support thereof. It is not lost on us that one of the main grounds on which the three petitions are based is that the 1st respondent of which the 3rd to 8th are members, failed to perform its functions under article 138(3)(c) of the Constitution. This failure as claimed by the petitioners, was occasioned by the exclusion of the 5th to 8th respondents from the verification and tallying process by the 2nd respondent.
5.
This claim is based on a highly publicized Press statement by these very respondents disowning the declaration of the Presidential Election results by the 2nd respondent. This statement by the four respondents brings them squarely within the ambit of grievance by the petitioners. The latter cannot be faulted for seeking to place before the court any evidence emanating from the four. To use section 15 of the IEBC Act, as a shield, would be tantamount to suppressing evidence by the applicant.
6.
Regarding the application to strike out the 13th respondent from Petition E002, it is also not lost on us that the said respondent is the Attorney General of the Republic of Kenya. The holder of such an office, has more capacity than any other litigant in this Country to fend off any attempts to join him in proceedings to which he ought not to be a party. As the Attorney General, he does not need the aid of the 9th respondent to accomplish such a routine task.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/43/eng@2022-08-29
Presidential Election Petition E005 of 2022,Odinga & another v Independent Electoral and Boundaries Commission & 7 others; Walubengo & 2 others (Amicus Curiae) (Presidential Election Petition E005 of 2022) [2022] KESC 44 (KLR) (29 August 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",29 August 2022,2022.0,Nairobi,Election,Odinga & another v Independent Electoral and Boundaries Commission & 7 others; Walubengo & 2 others,[2022] KESC 44 (KLR)               ,,"Brief facts
John Walubengo, Dr. Joseph Sevilla and Martin Mirero, sought leave to be joined as amici curiae in the Presidential Election Petition No. E005 of 2022. 
Issues
Whether the applicants met the standard set in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR and Francis Muruatetu & another v Republic & 5 others [2016] eKLR for admission as amici curiae.","This application is dated the August 28, 2022 and filed on even date by John Walubengo, Dr Joseph Sevilla and Martin Mirero, seeking leave to be joined as amici curiae in the Presidential Election Petition No E005 of 2022. It is supported by the affidavit of John Walubengo, sworn on the August 28, 2022 and filed on the August 28, 2022. It is brought pursuant to articles 10, 22, 38, 140, 159 and 163 of the Constitution; sections 3A and 12 of the Supreme Court Act, 2011; and rule 17A of the Supreme Court (Presidential Election Petition) Rules, 2017. The applicants have annexed an Amici Brief to their application for the court’s consideration.
2.
We have considered the application, affidavit in support thereof, and the amici Brief thereto. On the basis of the contents of the said Brief, we are satisfied that the application satisfies the test established by this court in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others, SC Petition No 12 of 2013; [2015] eKLR and Francis Muruatetu & another v Republic and 5 others, SC Petition No 15 & 16 of 2015 (Consolidated): [2016] eKLR for admission of Amici Curiae; and the requirements of rule 17 A (1) and (2) of the Supreme Court (Presidential Election Petition) Rules, 2017 and rule 19 of the Supreme Court Rules, 2020.
3.
Consequently, the applicants are hereby admitted as amici curiae in Petition No E005 of 2022. The amici will not make oral submissions and shall rely solely on their written Brief.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/44/eng@2022-08-29
Presidential Election Petition E005 of 2022,Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Law Society of Kenya (Amicus Curiae) (Presidential Election Petition E005 of 2022) [2022] KESC 50 (KLR) (Election Petitions) (29 August 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",29 August 2022,2022.0,Nairobi,Election,Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Law Society of Kenya,[2022] KESC 50 (KLR)               ,,"Brief facts
The instant application was filed by the Law Society of Kenya, seeking leave to be joined as amicus curiae in the Presidential Election Petition No. E005 of 2022. The application was brought pursuant to rule 17A(1) and (2) of the Supreme Court (Presidential Election Petition Rules) 2017 and rule 19 of the Supreme Court Rules, 2020.
Issues
What were the requirements to be met for a party to join a suit as an amicus curiae in a presidential election petition?
Held
On the basis of the contents of the amicus brief, the application satisfied the test established by the court in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others [2015] eKLR and Francis Muruatetu & Another v Republic and 5 Others [2016] eKLR for admission of amici curiae; and the requirements of rule 17A (1) and (2) of the Supreme Court (Presidential Election Petition) Rules, 2017 and rule 19 of the Supreme Court Rules, 2020.
Application allowed,
","This application is dated the August 27, 2022 and filed on the August 28, 2022 by the Law Society of Kenya, seeking leave to be joined as amicus curiae in the Presidential Election Petition No E005 of 2022. It is supported by the affidavit of Florence Wairimu Muturi, sworn on the August 27, 2022 and filed on the August 28, 2022. It is brought pursuant to rule 17A(1) and (2) of the Supreme Court (Presidential Election Petition Rules, 2017 and rule 19 of the Supreme Court Rules, 2020). The applicant has annexed an amicus Brief to its application for the court’s consideration.
2.
We have considered the application, affidavit in support thereof, and the amicus brief thereto. On the basis of the contents of the said brief, we are satisfied that the application satisfies the test established by this court in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others, SC Petition No 12 of 2013; [2015] eKLR and Francis Muruatetu & another v Republic & 5 others, SC Petition No 15 &16 of 2015 (Consolidated): [2016] eKLR for admission of amici curiae; and the requirements of rule 17A(1) and (2) of the Supreme Court (Presidential Election Petition) Rules, 2017 and rule 19 of the Supreme Court Rules, 2020.
3.
Consequently, the applicant is hereby admitted as an amicus curiae in Petition No E005 of 2022. The amicus will not make oral submissions and shall rely solely on its written brief.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/50/eng@2022-08-29
Presidential Election Petition E005 of 2022,Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Orenge (Interested Party) (Presidential Election Petition E005 of 2022) [2022] KESC 53 (KLR) (29 August 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",29 August 2022,2022.0,Nairobi,Election,Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Orenge,[2022] KESC 53 (KLR)               ,,"Brief facts
The applicant sought to be enjoined as an interested party in the presidential election petition on grounds that he intended to demonstrate electoral fraud arising from voters register on a sufficient scale. He contended that the voter fraud had the effect of a coup d’etat, protest or corruption of democracy.
Issues
Whether a person could be admitted as an interested party in a presidential election petition.","Upon perusing the notice of motion application by the applicant, Julius Orenge, dated August 26, 2022 and filed on the even date, seeking to be enjoined in these proceedings as an interested party; and
2.
Upon reading the supporting affidavit of Julius Orenge, a Kenyan citizen and a registered voter, sworn on August 26, 2022; and
3.
Upon considering the grounds adduced by the applicant in support of the orders to be enjoined as an interested party, wherein he postulates that he shall demonstrate that in a National Election, successful electoral fraud arising from voters register on a sufficient scale can have the effect of a coup d’etat, protest or corruption of democracy; and
4.
Considering that the relevant law in that regard to interested parties is rule 17A (4) of the Supreme Court (Presidential Election Petition) Rules, 2017, which provides that an application by any person as an interested party shall not be allowed in a presidential election Petition, we find as follows:",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/53/eng@2022-08-29
Presidential Election Petition 5 of 2020,Odinga & another v Independent Electoral and Boundaries Commission & 8 others (Presidential Election Petition 5 of 2020) [2022] KESC 47 (KLR) (Election Petitions) (29 August 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",29 August 2022,2022.0,Nairobi,Election,Odinga & another v Independent Electoral and Boundaries Commission & 8 others,[2022] KESC 47 (KLR)               ,,"Brief facts
The application by the 9th respondent, William Samoei Ruto, sought to strike out the affidavits of John Mark Githongo, Benson Wesongo and Martin E. Papa which were sworn in support of the petition. The applicant also sought to expunge paragraphs in the petition that sought to summon the Director of Criminal Investigations into the petition. The applicant contended that the affidavits were inadmissible in evidence as they contained hearsay material and that the impugned paragraphs of the petition sought to expand the purview of a petition contrary to the matters which ought to form a petition under article 140 of the Constitution.
Issues
Whether the Supreme Court could expunge supporting affidavits of a presidential election petition at the preliminary stage of the petition on grounds that the affidavits were inadmissible due to hearsay. 
Held
The affidavits contained factual contestations which had been responded to substantively by the 1st respondent and by the applicant. It was only proper that the court be allowed to consider the totality of the evidence before it and as guided by the rules of evidence be able to discern the probative value and evidentiary threshold of the evidence adduced by each party. Striking out of the affidavits at the instant juncture in isolation while leaving the responses on record was premature.
The impugned affidavits could only be dealt with on merits. The court was aware of its circumscribed jurisdiction both under article 140 of the Constitution and as an election court in respect of potential electoral and other offences and therefore it deferred the issue so that it could be dealt with at an appropriate stage.","Upon considering the affidavit dated August 27, 2022 by Josphat Koli Nanok, the Deputy Chief Agent of UDA’s Presidential Candidate at the National Tallying Centre, in support of the application who depones that the request to summon the DCI who is a known proxy of the petitioner and who has publicly avowed bias against the 9th respondent is intended to unfairly advance the petitioners’ case by introducing extraneous matters which are beyond the purview of a petition under article 140 of the Constitution.
4.
Taking into account that no responses to the application were filed by the petitioners and the 1st to 8th respondents within the required timelines.
5.
Noting the nature of the proceedings before the court being one involving the court’s exclusive and original jurisdiction under article 163(3)(a) of the Constitution respondent’s submissions dated December 27, 2021 and filed on January 5, 2022 through his advocates in which the respondent only addresses the first two issues.
6.
We opine that the said affidavits reveal that they contain factual contestations which have been responded to substantively by the 1st respondent and by the applicant including through the affidavits of Martin Wachira Nyaga (on behalf of the 1st respondent) and by Dennis Itumbi who has been directly implicated and Davis Kimutai Chirchir on behalf of the applicant. It is only proper that the court be allowed to consider the totality of the evidence before it and as guided by the rules of evidence be able to discern the probative value and evidentiary threshold of each of the evidence adduced by each party. Striking out of the affidavits at this early juncture in isolation while leaving the responses on record, in our view, is premature under the circumstances.
7.
Regarding the request to expunge specific paragraphs of the petition, again we note that it is an issue that can only be dealt with on merits as and when it is made in each of the impugned instances. In the same vein, the court is aware of its circumscribed jurisdiction both under article 140 and as an election court in respect of potential electoral and other offences and will defer this issue to be dealt with appropriately.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/47/eng@2022-08-29
Presidential Election Petition E005 of 2022,Odinga & another v Independent Electoral and Boundaries Commission & 8 others (Presidential Election Petition E005 of 2022) [2022] KESC 48 (KLR) (29 August 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",29 August 2022,2022.0,Nairobi,Election,Odinga & another v Independent Electoral and Boundaries Commission & 8 others,[2022] KESC 48 (KLR)               ,,"Brief facts
The application sought  for the court to admit on record the replying affidavits of the 5th to 8th respondents being members of the 1st respondent. The applicants argued that the 2nd, 3rd and 4th respondents in their replying affidavits had alleged that all the members of the 1st respondent attended a meeting with a delegation from the National Security Advisory Committee (NSAC) to subvert the will of the people. It was further contended that the 5th to 8th respondents agreed with the proposal from the NSAC delegation to alter the results of the presidential election in favour of one candidate against another. It was contended that unless the 5th to 8th respondents were allowed to file responses to the allegations, they would suffer great prejudice as the court would make adverse findings without hearing the affected respondents.
Issues
What were the circumstances in which the filing of further or other affidavits could be allowed in a presidential election petition?","Upon perusing the notice of motion application dated August 28, 2022 and filed on even date by the 5th respondent, anchored on rule 17 of the Supreme Court (Presidential Election) Rules, 2017 seeking the following orders;
a)
That this honourable court be pleased to admit on record the replying affidavits of Juliana Cherera, Justus Nyangaya, Francis Wanderi and Irene Masit, being members of the 1st respondent, attached hereto.
b)
That the costs of this application be provided for.
2.
Upon considering the grounds on the face of the application, the supporting affidavit sworn on August 28, 2022 by Juliana Cherera and filed on even date. It is the applicants’ argument that the 2nd, 3rd and 4th respondents in their replying affidavits have alleged that all the members of IEBC attended a meeting with a delegation from the National Security Advisory Committee (the NSAC) comprising Dr Kennedy Kihara, the Principal Administrative Secretary in the Office of the President, Mr Kennedy Ogeto, the Solicitor General, Mr Hillary Mutyambai, the Inspector General of Police and Lieutenant General Fredrick Ogolla, Vice Chair of the Kenya Defence Forces, to subvert the will of the people. It is further contended that the 5th, 6th, 7th and 8th respondents agreed with the proposal from the NSAC delegation to alter the results of the presidential election in favour of one candidate against another. To contending that unless the 5th, 6th, 7th and 8th respondents are allowed to file responses to the said allegations, they will suffer great prejudice as the court will make adverse findings without hearing the affected respondents. We have also perused the further affidavit sworn on August 28, 2022 and filed on even date by the 5th respondent.
We now opine as follows:
3.
We have considered the application and the given justifications for the admission of the further affidavit sworn by the 5th respondent.
4.
Under rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017 there is no provision to allow any further or other affidavits of this nature. However, we have considered the special circumstances where the facts/allegations made by the 2nd, 3rd and 4th respondents are contained in their response to the petition. These events took place during the pendency of this matter. It would only be fair and just, considering the serious nature of the allegations and implications of the same, that the 5th, 6th, 7th and 8th respondents ought to be given the opportunity to be heard regarding the same.
5.
We deem this to be an exceptional circumstance considering all aspects of the matter. We hereby invoke the provisions of the Supreme Court (Presidential Election Petition) Rules, 2017 rule 4(2) as read together with section 3A of the Supreme Court Act (Act No 7 of 2011) on the inherent powers of the court, and allow the further affidavits to be admitted as applied for.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/48/eng@2022-08-29
Presidential Election Petition E005 of 2022,Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Waihiga (Intended Interested Party) (Presidential Election Petition E005 of 2022) [2022] KESC 52 (KLR) (29 August 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",29 August 2022,2022.0,Nairobi,Election,Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Waihiga,[2022] KESC 52 (KLR)               ,,"Brief facts
The applicant filed the instant application seeking joinder as an interested party. The applicant was one of the four presidential candidates in the presidential election held on August 9, 2022 under the Agano Party Ticket. The applicant argued that he actively participated in the elections from the point of campaigns, casting of ballots, tallying and counting of ballot papers, up to the declaration at Bomas of Kenya and that the court needed to take his evidence into account to ensure that the final judgment of the court was based on available evidence.
Issues
Whether one could be enjoined as an interested party in a presidential election petition.
Held
Rule 17A(4) of the Supreme Court (Presidential Election Petition) Rules 2017, provided that an application by any person as an interested party would not be allowed in a presidential election petition. None of the intended interested party’s averments demonstrated the prejudice he would suffer if he was not enjoined. The arguments the applicant proposed to make could be adequately argued by other parties in the petition.
Application dismissed.","Upon perusing the notice of motion dated August 26, 2022 and filed on August 27, 2022, pursuant to rule 2 and 17 of the Supreme Court (Presidential Petition) Rules 2017, seeking joinder of David Waihiga, the party leader of Agano Party as interested party; and
2.
Upon reading the supporting affidavit of Mr David Waihiga Mwaure, the party leader of Agano Party sworn on August 26, 2022; and
3.
Upon perusing the grounds adduced by the applicant in support of the orders to be enjoined as interested party that is, he was one of the four presidential candidates in the presidential election held on August 9, 2022 under the Agano Party Ticket; he actively participated in the said elections from the point of campaigns, casting of ballots, tallying and counting of ballot papers, up to the declaration at Bomas of Kenya; and the court needs to take his evidence into account to ensure that the final judgment of the court is based on available evidence; and
4.
Noting that no party has filed a response to the application; and
5.
Considering the provisions of rule 17A (4) of the Supreme Court (Presidential Election Petition) Rules 2017, which provide that an application by any person as an interested party shall not be allowed in a presidential election petition.
6.
Furthermore, none of the intended interested party’s averments demonstrate the prejudice he will suffer if he was not enjoined. It is also our finding, that the arguments he proposes to make can be adequately argued by other parties in the petition.
7.
For the foregoing reasons, the final orders of the court are as follows:",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/52/eng@2022-08-29
Presidential Election Petition E005 of 2022,Odinga & another v Independent Electoral and Boundaries Commission & 9 others (Presidential Election Petition E005 of 2022) [2022] KESC 45 (KLR) (29 August 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",29 August 2022,2022.0,Nairobi,Election,Odinga & another v Independent Electoral and Boundaries Commission & 9 others,[2022] KESC 45 (KLR)               ,,"Brief facts
The applicant sought to be joined as an interested party in the presidential election petition on grounds that he had an inherent interest in the outcome of the petition as it raised fundamental issues which were integral to the protection of his rights as enshrined under articles 10, 38, 73, 81, 86 and 140 of the Constitution, and that he had substantial issues to raise about the legitimacy of Forms 34A and 34B, which were central to the petition. No party filed a response to the petition.
Issues
Whether the applicant could be admitted as an interested party in the presidential election petition.","Upon perusing the notice of motion application by Milton Nyakundi Oriku, the applicant, dated August 23, 2022 and filed on August 28, 2022, seeking to be enjoined in these proceedings as an interested party; and
2.
Upon reading the supporting affidavit sworn on August 23, 2022, of the said Milton Nyakundi Oriku, a Kenyan citizen, who is a registered voter and works as a journalist; and
3.
Upon considering the said application together with his written submissions dated August 23, 2022 and filed on August 28, 2022, wherein the applicant argues that he has an inherent interest in the outcome of the petition as it raises fundamental issues which are integral to the protection of his rights as enshrined under articles 10, 38, 73,81, 86 and 140 of the Constitution; and that he has substantial issues to raise about the legitimacy of Forms 34A and Forms 34B which are central to Petition; and
4.
Noting that no party has filed a response to the application; and
5.
We note that the relevant law in this regard is rule 17A (4) of the Supreme Court (Presidential Petition) Rules 2017, which provides that an application by any person as an interested party shall not be allowed in a presidential election petition.
6.
Havingcarefully considered the application, responses and submissions by the respective parties herein, we find no merit in the application. We accordingly, dismiss it.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/45/eng@2022-08-29
,,,,,,,,,,,,,,,,
Petition (Application) 13 of 2019,Githiga & 5 others v Kiru Tea Factory Company Limited (Petition (Application) 13 of 2019) [2022] KESC 35 (KLR) (Civ) (8 August 2022) (Ruling),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",8 August 2022,2022.0,Nairobi,Civil,Githiga & 5 others v Kiru Tea Factory Company Limited,[2022] KESC 35 (KLR)               ,,"1.
UPON perusing the Notice of Motion application dated 1st December 2020 filed online on 7th December 2020 with the physical copy being filed on 27th May 2022 pursuant to Articles 1 (2), 10, 50 (1), 159, and 163 (7) of the Constitution and Sections 3 and 21 (2) and (4) of the Supreme Court Act, No. 7 of 2011 and all enabling provisions of the law seeking the following orders:
1.
THAT on the grounds more specifically set out in the Certificate of Urgency filed herewith this Application be and is hereby certified urgent to be heard and determined in priority to any other step being taken in related matters.
2.
THAT this Court be pleased to enlarge the time within which the application for review/correction of the error apparent at Paragraph 44 and other parts of the Ruling delivered on 29th November 2019.
3.
THAT this Court be pleased for the benefit of case law and principle of stare decisis to review and or correct the error apparent at Paragraph 44 of the Ruling delivered on 29th November 2019 to wit:-
“
These facts lead us to agree with the Court of Appeal decision, that in order to conclusively determine the question of representation, we must first establish the bona fide directors of the respondent. Whereas the CR 12 points to the current directors of the respondent, the same is in our view, inconclusive, owing to the disputed position awaiting resolution by the Companies Registry”. Emphasis
4.
THAT leave be and is hereby granted to the Applicant to file a Supplementary Affidavit and Supplementary Written Submissions in opposition to the Petition dated 3rd April 2019.
5.
THAT the Costs of and incidental to this Application be provided for;
2.
UPON perusing the grounds on the face of the application; the supporting affidavit sworn on 1st December 2020 by Geoffrey Chege Kirundi and submissions dated 14th June 2022 filed online on 16th June 2017 with the physical copy filed on 17th June 2022. It is the applicant’s main argument that the import of this Court’s ruling delivered on 29th November 2019 at paragraph 44 has the possibility of creating uncertainty, unpredictability, and confusion and ultimately wreaking havoc in the corporate world, independent public and private corporate offices by the proposition that Form CR-12 is inconclusive; that this Court accommodates this application for correction despite it not being made within fourteen days from the date of the decision on grounds of public interest as the error was discovered upon reflection and re-reading of the ruling; and that leave be granted to the applicant to file a supplementary affidavit and written submissions to answer various questions set out in rulings of this Court; and
3.
UPON perusing the replying affidavit by the 6th appellant, Dr. John Kennedy Omanga sworn on 28th June 2022 and filed online on 5th July 2022 with the physical copy filed on 18th July 2022 on his own behalf and on behalf of the other appellants, and the written submissions dated 28th June 2022, filed online on 5th July 2022 with the physical copy filed on 18th July 2022 all in opposition to the application. It is contended that the application is incompetent and incurably defective for not being filed within fourteen days of the ruling of this Court but close to one year later to which the applicant has not sought extension of time or given explanation for the delay, hence making the application a non- starter and therefore, the Court should not be persuaded to exercise its discretion in favour of the applicant. Moreover, that the applicant has not established any of the grounds for review as stipulated by this Court in Hussein Khalid and 16 others v Attorney General & 2 others [2020] eKLR; and that the applicant cannot purport to seek leave to file supplementary affi davit and submissions considering that to date, the applicant has not filed its submissions and the applicant cannot purport to bring new issues, the issues for determination being already disclosed in the main petition before the Court.","4.
NOTING that the Court, under Section 21(4) of the Supreme Court Act 2011 (repealed) as read with Rule 28(5) of the Supreme Court Rules 2020 confers upon this Court power to review its decision based on the following conditions: that the correction can only be sought within fourteen days of delivery of the judgment, ruling or order; that the relevant parties have been notified, and that the substance of review must relate to any oversight, errors of clerical computation, or errors apparent on the face of the judgment, ruling or order, with the aim of giving effect to the intention of the Court. This threshold was articulated by this Court in Musembi & 13 other (Suing on their own behalf and on behalf of 15 residents of Upendo City Cotton village at South C Ward, Nairobi) v Moi Educational Centre Co. Ltd & 3 others (Application E019 of 2021) [2022] KESC 19 (KLR) (Civ)(19 May 2022)(Ruling)); while in Fredrick Otieno Outa v. Jared Odoyo Okello, SC Petition No 6 of 2014; [2017] eKLR where the Court spelt out the guiding principles on review of a court’s own decision; and
5.
CONSIDERING that the applicant failed to file its application within the fourteen days of delivery of the ruling and extension of time as sought by the applicant is an equitable remedy involving the exercise of judicial discretion, and the guiding principles set out in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the applicant’s argument is unmerited. We say so because, first and foremost the application does not meet the principles set out in Nicholas Kiptoo Salat Case since the delay in filing the application is close to one year the applicant having filed the application dated 1st December 2020 filed online on 7th December 2020 with the physical copy being filed on 27th May 2022 against the ruling sought to be reviewed which was delivered on 29th November 2019. This is an unexplained undue delay which borders on indolence. Secondly, the argument put forth that the error was discovered upon reflection and re- reading of the ruling is unsatisfactory and appears to be an afterthought.
6.
In the same breadth, taking into account Rule 3(5) of the Supreme Court Rules 2020 and guided by the principles enunciated by this Court in Fredrick Otieno Outa case and the argument put forth by the applicant relating to inconclusiveness of the CR-12, we opine that the applicant’s interpretation is misconstrued. This is because, in our view, the appeal before us does not relate to the conclusiveness or otherwise of the CR-12 in issue but rather the ruling of the Court of Appeal arising from the contempt proceedings before the said Court and our reference to the said CR 12 needs to be placed in the proper context. In addition, the review sought does not relate to any oversight, errors of clerical computation, or errors apparent on the face of the ruling. For these reasons, the prayers for extension of time and for review are not merited.
7.
WITH RESPECT to the prayer for leave to file a further affidavit and written submissions to address questions raised by the Court in its ruling, we are of the view that the prayer is unsubstantiated and the applicant has not specified which questions it seeks to address in the additional pleadings, the applicant not having in its earlier decision delineated the issues falling for determination under the Court’s limited jurisdiction. Further considering that the applicant already filed its submissions dated 26th May 2020 on 28th May 2020 in the main appeal and the matter has since been certified ready for hearing, it is only fair and in the greater interests of justice that the parties, rather than extend their duel through the numerous applications, re-route their efforts and focus towards the hearing and disposal of the main appeal which needs to be expedited based on its long and winding nature.
8.
FOR THESE reasons we come to the inevitable conclusion that the application lacks merit in its entirety and is for disallowing. As for costs, we note that the parties are still engaged in litigation before the Court, it is prudent that we defer the costs to follow the ultimate outcome of the appeal.
9.
Consequently, we make the following orders:
i.
The Notice of Motion dated 1st December 2020, filed online on 7th December 2020 and physically on 27th May 2022 be and is hereby disallowed.
ii.
The costs of this application to abide the outcome of the appeal.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/35/eng@2022-08-08
Petition 1 of 2018,Institute for Social Accountability & another v National Assembly & 5 others (Petition 1 of 2018) [2022] KESC 39 (KLR) (8 August 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",8 August 2022,2022.0,Nairobi,Civil,Institute for Social Accountability & another v National Assembly & 5 others,[2022] KESC 39 (KLR)               ,,"Brief facts
Aggrieved by the enactment of the Constituencies Development Fund Act, 2013 (CDF Act, 2013) and the Constituencies Development Fund (Amendment) Act (cap 414) (CDF (Amendment) Act, 2013), two petitions, which were consolidated, were filed at the High Court by the appellants. The consolidated petitions challenged the constitutionality of the CDF Act 2013. The High Court determined that the CDF Act, 2013 was unconstitutional and held that the CDF Act, 2013, was passed without the involvement of the Senate. The High Court established that the Constituencies Development Fund (CDF) was not a conditional grant to the county governments within the meaning of article 202(2) of the Constitution of Kenya, 2010.
The High Court also held that the CDF Act, 2013, violated the division of functions between the National and County Government, the court found that in as much as the National Government was free to infiltrate its policies at the county levels, it had to do so through the structures recognized under the Constitution and those that did not run parallel to them. The court also noted that charging the CDF with implementing local development projects under section 22 of the CDF Act, 2013, upset the division of functions between the two levels of government. 
Aggrieved with the judgment of the High Court, the 1st and 4th respondents filed appeals at the Court of Appeal. The appellants raised a preliminary objection to the appeals challenging the Court of Appeal’s jurisdiction on the ground of the doctrine of mootness. They urged that the appeals had been rendered moot following the repeal of the CDF Act, 2013, and the enactment of the National Government Constituencies Development Fund, 2015 (NGCDF Act, 2015). 
The Court of Appeal partially allowed the appeals by declaring sections 24(3)(c), 24(3)(f), and 37(1)(a) of the CDF Act, 2013 unconstitutional and invalid for violating the principle of separation of powers. The court also overturned the declaration that the CDF Act, 2013, was unconstitutional in its entirety. The Court of Appeal also held that the NGCDF Act, 2015, did not expressly repeal the CDF Act, 2013. Dissatisfied with the Court of Appeal’s decision, the appellants filed the instant appeal. The 1st respondent also filed a notice of cross-appeal.","Held
A matter was moot when it had no practical significance or when the decision would not have the effect of resolving the controversy affecting the rights of the parties before it. If a decision of a court would have no such practical effect on the rights of the parties, a court would decline to decide on the case. There had to be a live controversy between the parties at all stages of the case when a court was rendering its decision. If after the commencement of the proceedings, events occurred changing the facts or the law which deprived the parties of the pursued outcome or relief then, the matter became moot. Where a new statute was enacted that unequivocally addressed the concerns that were at the heart of a dispute then such a dispute would be moot.
Sections 3, 4 and 53 of the NGCDF Act, 2015 contained some of the pertinent issues that were raging controversies before the Court of Appeal for determination even after the coming into force of the NGCDF Act, 2015. The impugned provisions of the CDF Act 2013 had also been re-enacted in the NGCDF Act, 2015, it did not unequivocally settle the issues in dispute between the parties. There was live controversy between the parties and it was in the public interest to have the questions that were raging adjudicated and determined by the Court of Appeal. The appeal before the was not moot.
Applying a purposive interpretation, the amendment in section 2 of the CDF (Amendment) Act, 2013 of the touched on the main object and purpose of the CDF Act, 2013, which was to ensure that a specific portion of the national annual budget was devoted to the constituencies for inter alia community projects and infrastructural development. Essentially, the amendment had the effect of changing the constitutional basis for the fund from being an additional revenue to the county governments from the National Government under article 202(2) of the Constitution; to transforming the CDF into a fund of the National Government under the consolidated fund established under article 206(2) of the Constitution.
The Court of Appeal was at fault for a restrictive approach in interpreting the law to hold that the Bill in its objects indicated that it did not concern county governments. The replacement of article 202 of Constitution with article 206(2) had an effect on the allocation of revenue to the county governments. The CDF (Amendment) Act, 2013 had an effect on the functioning of county governments.
A matter touching on county government incorporated any national-level process bearing a significant impact on the conduct of county government. Some of the functions contemplated by section 3 of the CDF Act, 2013, concerned county governments. Therefore, the CDF (Amendment) Act, 2013 should have been tabled before the Senate in accordance with article 96 of the Constitution for consideration.
While the concurrence of the Speakers of the National Assembly and the Senate was significant in terms of satisfaction of the requirements of article 110(3) of the Constitution it did not by itself oust the power of the court vested under article 165(3)(d) of the Constitution where a question regarding the true nature of legislation in respect to article 110(1) was raised.
The CDF (Amendment) Bill, 2013 involved matters concerning county governments and therefore the Bill should have been tabled before Senate for consideration, debate, and approval in accordance with article 96 of the Constitution. Failure to involve the Senate in the enacting of the CDF (Amendment) Act, 2013, rendered the CDF Act 2013 unconstitutional. The Constitution did not create a federal State but a unitary system of government that decentralized key functions and services to the county unit.
Article 6(2) of the Constitution provided that the governments at the national and county levels were distinct and interdependent and should conduct their mutual relations on the basis of consultation and cooperation. In addition, article 186(1) of the Constitution stated that the functions and powers of the National Government and county governments would be as set out in the Fourth Schedule to the Constitution.
Parliament was one of the arms of the Government under the Constitution. It consisted of the Senate and the National Assembly. The legislative remit of the National Assembly fell under the National Government in the vertical division of powers between the National Government and the county governments. That was evident from article 95 of the Constitution which provided for the roles of the National Assembly.
The Constitution under article 95 did not grant the National Assembly the power to implement projects as a service delivery unit at the county level. Members of the National Assembly were granted the mandate to legislate and oversight the national revenue and its expenditure.
Article 1(4) of the Constitution stipulated that the sovereign power of the people was exercised at the national level and the county level. In addition, the Constitution established the county executive committee as the executive authority in the county government. Article 179(1) of the Constitution stated that the executive authority of the county was vested and exercised by, a county executive committee. It meant that the service delivery mandate, which in its essence was an executive function, relating to functions assigned to the county governments ought to be exercised by the county executive committee.
Members of National Assembly’s legislative mandate was linked or tied to the National Government and not the county governments. Therefore, where a Member of the National Assembly was allowed to play a role related to functions vested in devolved units, then that would compromise the vertical division of powers between the National and County governments.
The determinate phrase of section 22(1) of the CDF Act 2013 which listed the projects for which the Fund was to be deployed, was ""community based"". Community-based was not defined anywhere in the statute. A look at the Fourth Schedule to the Constitution (pursuant to the terms of article 186(1) of the Constitution) that distributed functions between the National Government and the county governments, showed that it was the county governments that were allocated most of the functions and powers that could be said to be community or local in orientation. Examples of such functions and powers included those relating to county health services, county transport, trade development, county public works and services, pre-primary education, and village polytechnics, amongst others. In contrast, to a large extent, the functions and powers of the National Government with respect to most of those functions related to policy formulation.
The approach in the Fourth Schedule to the Constitution resonated with the principle of subsidiarity, which underpinned the division of powers under devolved systems of government. Subsidiarity was the broad presumption that sub-national governments ought to be assigned those functions and powers which vitally affected the life of the inhabitants and allowed the development of Kenya in accordance with local conditions of sub-national units, while matters of national importance concerning Kenya as a whole and overarching policy formulation were assigned to the National Government.
The implementation of community-based projects envisaged under section 22 of the CDF Act, 2013, and the infrastructural development projects envisaged under section 3 of the CDF Act, 2013, would inevitably cover and target the functions assigned to county governments.
The CDF did not amount to an inter- governmental transfer of functions. The Constitution paid keen attention to ensure that the National Government did not usurp the mandate of county governments by specifying a clear process for the transfer of functions from a county government to the National Government. Article 187(1) of the Constitution stipulated that a function or power of government at one level could be transferred to a government at the other level by agreement between the governments.
The instant dispute subject did not involve the transfer of functions by agreement between governments as contemplated under article 187(1) of the Constitution. Instead, it was a dispute about alleged constitutionally forbidden encroachment by an agency of the National Government onto the terrain of the county governments.
Under article 1(4) of the Constitution, the sovereign power of the people was exercised at the national level and the county level. The functions of service delivery, which were the character and nature of community-based projects targeted by the CDF Act, 2013, were by nature executive functions. Accordingly, by nature, they would be discharged by the executive structures of the appropriate level of Government in terms of article 1(3) (b) of the Constitution which vested executive functions in the National Executive and the executive structures in the county governments.
The constituency as conceptualized in the Constitution was tied to political representation. Throughout the Constitution, the idea of constituency whenever it was used was linked to being an electoral unit for political representation. In its true essence, a constituency was a form of territorial districting that defined how voters were grouped for the election of Members of Parliament and were not conceptually envisaged to be service delivery units.
The role that a constituency as an electoral unit discharged and its place within the constitutional scheme was tied to the functions constitutionally vested in the Member of the National Assembly. That role was legislative and not a service delivery mandate. The constituency under the constitutional scheme was tied to the election of representatives to the Legislature and representation of the people of the constituency at the National Assembly.
The decentralization of service delivery must be undertaken within the confines of the structures of the National Government or county governments, not parallel to the two levels of Government. A third or parallel structure of Government was altering the basic premises of the system of Government created by the Constitution and as distorting the devolved structure of Government. That was more so in a context such as the CDF fund which had the effect of creating structures that were incompatible with the nature of the distribution of functions between the two levels of Government. The CDF Fund which had the effect of creating structures that were incompatible with the nature of the distribution of functions between the two levels of government. The CDF Act, 2013, violated the division of functions between the national and county levels of Government.
A key concern behind the enactment of article 202(1) of the Constitution which stipulated that revenue raised nationally should be shared equitably among the two levels of government, was to ensure the optimal funding and working of the devolved system of government. What was contemplated by articles 202(1) and 218(1)(a) of Constitution was that revenue raised nationally was all the revenue accruing from all the revenue-raising powers of the National Government. Revenue raised nationally was synonymous with what was termed equitable share and was allocated between the two levels of Government. Before allocation, the revenue was not yet available to the National Government to allocate to its agencies. Only after the National Government had received its portion of the equitable share under the Division of Revenue Act as envisaged in article 218(1)(a), would be in a position to allocate funds to agencies and instrumentalities falling under its mandate.
The National Government and county governments were the only entities entitled to participate in the vertical division of the revenue raised nationally. To allow an agency of the National Government or a third structure whose location within the constitutional system was unclear to participate in the sharing of the revenue raised nationally was a violation of not only article 202(1) but also article 218(1)(a) of the Constitution.
Section 4 of the CDF Act, 2013, violated the provisions of the Constitution as it sought to disrupt the revenue sharing formula by directly allocating 2.5% of all the national revenue while the Constitution required that the revenue raised should be shared equitably among the National and County Governments. If at all any monies was to be deducted from the national revenue, the money should be granted from the National Government revenue as a grant but not directly from the national revenue. The CDF Act, 2013, violated the principles of the division of revenue as stipulated in article 202(1) of the Constitution.
Article 201 of the Constitution expressed the idea of responsible governance. It envisaged that the two levels of Government would manage fiscal resources prudently by putting in systems that ensured that the implementation of projects aimed at delivering a public good and service was cost-effective. It also embodied the desire for fiscal efficiency which spoke to the need to eliminate wastages in service delivery and provision of public good and service. It meant that where it was a policy objective of the Government to deliver a particular public good or service then the system for delivery of that policy objective should be designed in a manner that ensured that public funds were not wasted or abused
There was a real threat of the CDF creating confusion as to which project was being implemented by which level of Government. In addition, it created the prospect of duplication of funding for the same project leading to wastage of scarce public resources. It created a state of lack of clarity as to which level of Government was responsible for which particular project therefore compromising on accountability.
There should be clarity in the allocation and assignment of tasks to avoid duplication in the deployment of resources. That would avoid the problem of the two levels of the government ending up directing and spending resources on the same project.
There was a real threat of the Fund creating confusion as to which project was being implemented by which level of government. It created the prospect of duplication of funding for the same project leading to wastage of scarce public resources. It created a state of lack of clarity as to which level of government was responsible for which particular project therefore compromising on accountability.
While the court appreciated the concerns that motivated the creation of the CDF and public support for it, there were more effective ways of decentralizing funding to the local level without compromising on key constitutional principles like those of public finance.
Even though the CDF (Amendment) Act, 2013 provided that the monies under the Act should be considered as funds allocated under article 206(2)(c) of the Constitution, under section 10 of the CDF Act, 2013, the Cabinet Secretary responsible for matters relating to the CDF in allocating the fund for each financial year had to seek concurrence of the relevant parliamentary committee. That violated the principles of accountability and integrity due to likely conflict of interest. That was because a Member of Parliament could not oversee the implementation or coordination of the projects and at the same time offer oversight over the same projects. The CDF as structured under the CDF Act, 2013, violated the constitutional principles on public finance, particularly the principle of prudent and responsible management of public funds as enshrined in article 201(d) of the Constitution.
The doctrine of separation of powers was a fundamental principle of law that required the three arms of Government to remain separate, and that one arm of Government should not usurp functions belonging to another arm. Article 1(3) of the Constitution delegated power vertically and horizontally to State organs namely, Parliament and the legislative assemblies in the county governments, National Executive and the executive structures in the county governments, and Judiciary and the independent tribunals. Therefore, the Constitution required that each level of Government have both institutional and functional distinctiveness from each other.
Modern democracies did not all employ the same form of separation of powers structuring. Separation of powers was never conceived as involving a perfect and hermetically sealed division of responsibility between the three branches of government.
The doctrine must still have an analytical bite and there would be instances when it could be concluded that structuring of governmental powers violated or failed to embody the ethos represented by the doctrine of separation of powers. While modest modifications and deviations from the pure version would not infringe the doctrine of separation of powers, where the Legislature structured a public agency or institution in a manner that deviated too far from the pure version then it was likely that the separation of powers would have been violated. Whilst the pure version of the doctrine of the separation of powers was not adhered to in practice, it still remained true that it represented a bench-mark or an ideal-type.
The Constitution consciously provided for a structure of government consisting of three balanced branches within the framework of a representative democracy. The separation of powers ought not to be treated or viewed as an end in itself but aimed at the fulfillment of the form of governance and vision of the state that Kenyans aspired to as represented in the national values and principles of governance under article 10 of Constitution.
Kenya had a value-based Constitution. The organizational framework of governance served the purpose of furthering the goal of realization of the national values and principles articulated in the Constitution. The values and principles were not self-executing, rather they were realized through the institutional fabric woven throughout the Constitution including through the separation of powers that undergird the organizational structure of governmental power.
The Supreme Court adopted a two-pronged test to be used in assessing whether a particular allocation of mandate, function, or power to a public agency or institution amounted to an unconstitutional intrusion that threatened or violated the separation of powers. The two limbs of the test were:
whether the mandate, functions or powers of the subject state agency, or institution unjustifiably strays into the nucleus, core functions, or pre-eminent domain that were the exclusive competence of another branch of government from a functional point of view.
Whether the exercise of the subject assigned mandate, functions, or powers will harm or threaten the realization of the national values and principles articulated in the Constitution.
The impugned section 22(3)(c) of the CDF Act, 2013, envisaged that the Member of the National Assembly was to appoint eight (8) of the ten (10) members of the constituency development fund committee. That was in addition to section 24(3)(f) of the CDF Act, 2013, which made the Member of the National Assembly an ex-officio member of the committee. The Black’s Law Dictionary defined an ex-officio member as a member appointed by virtue or because of an office and explained that an ex-officio member was a voting member unless the applicable governing document provided otherwise. As the CDF Act, 2013, did not provide otherwise, a Member of the National Assembly who was a member of the committee by virtue of his office as a Member of National Assembly was a voting member.
It was the constituency development fund committee that was vested with the responsibility of initiating the process for identification and prioritization of the projects, employment of staff, allocation of funds to various projects, the tabling of reports and monitoring the implementation of the projects. Two of its members were among the three signatories to the bank account. The projects implementation committee which implemented the projects works under its direction. Those were typical service delivery mandates that fell within the constitutional mandate of the Executive branch.
The power of appointment of the members of the constituency development fund committee and being an ex-officio member of the committee, the Member of the National Assembly was in effective control of the constituency development fund committee and that meant that he/she influenced the selection, prioritization of projects, allocation of funds and also monitored the implementation of the projects. That meant that the fund as conceived under the CDF Act, 2013, vested in the Legislature and its personnel – being the Members of the National Assembly, functions that typically fell within the nucleus, core function, or pre-eminent domain of the Executive branch.
The national values and principles idea of good governance and accountability represented the aspiration that a person in a position of public trust should not make decisions regarding questions on which they had an interest. Put differently, all State and public officers should avoid conflict of interest in the discharge of their mandate.
As conceived and structured under the CDF Act, 2013, Members of the National Assembly would have a personal interest or stake in the determination and implementation of projects by the fund in their constituencies. The perceived failure or success of the fund within their constituency would also influence their prospects of re-election. What that state of affairs did, was that, it created a conflict of interest with the Member of Parliament’s oversight role.
All State and public officers should avoid conflict of interest in the discharge of their mandate. As conceived and structured under the CDF Act 2013, Members of the National Assembly would have a personal interest or stake in the determination and implementation of projects by the Fund in their constituencies. The perceived failure or success of the Fund within their constituency will also influence their prospects of re-election. That state of affairs created a conflict of interest with the Member of Parliament’s oversight role.
The very fact that the success or failure of the CDF Fund would be linked to the Member of the National Assembly created a perverse incentive of self- interest in the Members of the National Assembly not to undertake the robust oversight mandate envisaged by the Constitutionover the Fund thus inimical to the national values and principles of accountable and good governance.
Given the constitutional edict in article 259(1)(a) and (d) that the Constitution should be interpreted in a manner that promoted its purposes, values, and principles, and contributed to good governance. Adopting an interpretation that allowed conflict of interest undermined the oversight role of the Legislature. Allowing legislators any role, even a merely ceremonial role in discharging a mandate that belonged to the Executive branch at either the national or the county level, would promote conflict of interest and compromise their oversight role. Therefore, the CDF Act, 2013 violated the values and principles of accountability and good governance.
A fund operating outside the strictures of separation of powers and the system of checks and balances would not be constrained given the absence of legislative oversight and therefore would be prone to be abused. In effect, a fund that allowed personnel from the legislative branch to exercise Executive powers was problematic from a constitutional lens. In the context of the case, the constitutional scheme on separation of powers should be upheld given its implication for underlying constitutional values; that was the maintenance of accountability and good governance. Were the court to adopt a contrary approach, even for the best of policy reasons, those constitutional values and principles would be eroded.
Given the constitutional scheme on separation of powers; members of legislative bodies, being members of the National Assembly, senators, county women representatives, and members of county assemblies ought not to be involved in the implementation of any service-based mandates which were a preserve of the Executive branch. That was the only way to respect the constitutional scheme on separation of powers and ensure that the legislators’ oversight mandate was not compromised through conflict of interest. Tolerating a contrary position would harm the Constitution’s value system, particularly the national values and principles of accountable and good governance. The fund as structured violated the vertical separation of powers.
The fact that the CDF had been operational in Kenya since 2003 was not a good enough answer to the question on the constitutionality of the fund in the post-2010 constitutional dispensation. A fund directed at service delivery mandate could only be constitutionally complaint if structured in a manner that did not entangle members of legislative bodies and legislative bodies in the discharge of the service delivery mandate however symbolic. Such funds ought to be integrated and subsumed within the structures of either the county executive or the National Executive.
Appeal allowed; cross-appeal dismissed.
Orders
Declaration made that the Constituencies Development Fund Act, 2013 was unconstitutional.
Each party to bear their own costs.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/39/eng@2022-08-08
Petition 11 (E008) of 2022,"Sonko v Clerk, County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) [2022] KESC 32 (KLR) (8 August 2022) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",8 August 2022,2022.0,Nairobi,Civil,"Sonko v Clerk, County Assembly of Nairobi City & 11 others",[2022] KESC 32 (KLR)               ,,"1.
Upon perusing the Notice of Motion application dated 20th July, 2022 and filed on 21st July, 2022, anchored on Articles 23, 47, 48, 50, 163(1) and (4), 159(2)(d) and (e) of the Constitution, Sections 3 and 21 (2) of the Supreme Court Act (inapplicable) and Rules 3(5) (a) and (8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and all enabling provisions of the law where the applicant is seeking the following orders that:
1.
The Honourable Court be pleased to grant leave to the Applicant to adduce new and additional evidence in the form of:
a.
Videos and Audio recordings pertaining to malpractices by the Presiding Judge of the High Court of Kenya over the conduct and determination of the Applicant’s Petition at the High Court of Kenya in Nairobi High Court Constitutional Petition No. E425 of 2020 (as consolidated with Petition No. E014 of 2021) and Nairobi High Court Constitutional No, E005 of 2021 (as consolidated with Petition No. E433 of 2020; E007 of 2020; E009 of 2020; E011 of 2021; E012 of 2021; E013 of 2021; E015 of 2021; E019 of 2021 and E021 of 2021) in regard to his impeachment.
b.
Communication and correspondence from the Chief Justice; the Judicial Service Commission and various pleadings and evidence filed and lodged at the Judicial Service Commission and the Tribunal pertaining to the disciplinary proceedings in regard to Honourable Justice Juma Said Chitembwe over his conduct in presiding and determining the Applicant’s impeachment proceedings at the High Court of Kenya.
c.
Audio and video recordings by the Honourable Chief Justice Martha Koome in her interview at Spice FM wherein she made utterances and comments pertaining to the present Petition of Appeal on the Applicant’s impeachment wherein she expressed her views on the impeachment process which directly related to the Applicant and the present Petition.
d.
An affidavit duly sworn by Amana Saidi Jirani, nominee and brother to Honourable Justice Said Chitembwe deposing to the existence of an agency agreement between the Honourable Judge and himself and which has a direct bearing on the matter at bar.
2.
The Honourable Court does issue an order to stay the instant proceedings pending the hearing and determination of the proceedings at the Tribunal pertaining to the conduct of Honourable Justice Juma Said Chitembwe, which has a bearing on the instant proceedings and any such orders and further orders to be granted by this Honourable Court.
3.
This Honourable Court be pleased to review/ and or set aside its judgment of 15th July, 2022 in this Appeal.
4.
This Honourable Court be pleased to issue any further orders as it may deem fit in the circumstances as shall meet the ends of justice.
5.
Costs of this Application be provided for.","2.
Upon examining the grounds on the face of the application; the supporting affidavit of Hon. Mike Mbuvi Sonko, the applicant, deposed on 20th July 2022; further affidavit in response to the grounds of opposition deposed on 26th July, 2022 and submissions dated 21st July, 2022, all to the effect that Chitembwe, J. who was the presiding Judge in High Court Constitutional Petition E425 of 2020, the subject of this appeal, is facing investigations by a disciplinary tribunal over his conduct in the manner he influenced the outcome of the applicant’s Petition challenging his ouster. The applicant explains that he had planned, prior to the hearing of the appeal in this Court to bring the present application to introduce new evidence and stay proceedings before the Court pending the outcome of the tribunal’s determination but for the confusion created by the Court’s registry and the tight timelines, he was not able to do so. In the circumstances, he submits that, it is only fair that the judgment be reviewed and/or set aside along the principles enunciated in the decisions in Cyrus Shakhalaga Khwa Jirongo v. Soy Developers Limited & 9 others [2020] eKLR and Mohamed Abdi Mahamud v. Ahmed Abdi Abdullahi Mohamad & 3 Others [2018] eKLR; and that leave to present the additional evidence be granted.
3.
Upon considering the 1st respondent’s grounds of opposition dated 25th July, 2022, the 2nd, 4th , 5th, 6th, 7th, 8th, 10th, and 11th respondents’ grounds of opposition and submissions, the combined effect of which is that the application offends the provisions of Section 106B of the Evidence Act on admissibility of evidence since the certificates relied on have not particularized what video recordings they intend to produce; that the prayer for recusal of the President of the Court is not only res judicata but was also never an issue for determination in the judgment of 15th July, 2022 and therefore not the subject of an application for review; that the Court being functus officio cannot entertain the instant application or to pronounce itself on the evidence that the applicant seeks to introduce, and particularly after holding that it has no jurisdiction to entertain the main appeal; that the evidence sought to be introduced is irrelevant, not being the subject matter of the removal of the applicant from office, hence their introduction would not have any impact upon the judgment of the Court even if admitted; and that the matters raised in the application are now before the tribunal, where their determination is pending.
In view of the foregoing we now opineas follows:
4.
Noting the omnibus nature of the application in which three reliefs are sought: leave to admit additional evidence; stay of proceedings pending the hearing and determination of the proceedings pending before the tribunal investigating the conduct of Chitembwe, J. and; review and/or setting aside of this Court’s judgment of 15th July, 2022. The latter prayer is indeed the subject of a separate ruling to the applicant’s application dated 18th July, 2022. We say no more on it; and
5.
Regarding the prayer for stay of proceedings pending the outcome of the tribunal’s decision, it cannot be in doubt that the Court delivered its judgment on 15th July, 2022, determining with finality the applicant’s appeal contesting his ouster as Governor. All that remains in the matter are the reasons to be rendered in due course in terms of Rule 28(2) of the Supreme Court Rules, 2020. We do not think the applicant’s intention in this prayer is to stay his own applications which are the only matters pending ruling before the Court. By the provisions of Rule 2 of the Supreme Court Rules 2020, there are no proceedings capable of being stayed that are pending before the Court; and
6.
Considering the prayer for leave to admit additional evidence, the applicant is duty bound to satisfy all the elements under the provisions of Section 20 of Supreme Court Act, Rule 26 of the Supreme Court Rules, 2020 (both of which have not been cited in the application) and as propounded by the Court in Mohamed Abdi Mahamud Ahmed Abdi Abdullahi Mohamad & 3 Others [2018] eKLR as follows:
“
a.
the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
b.
it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
c.
it is shown that it would not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
d.
where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
e.
the evidence must be credible in the sense that it is capable of belief;
f.
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
g.
whether a party would reasonably have been made aware of and procured the further evidence in the course of the trial is an essential consideration to ensure fairness and due process;
h.
where the additional evidence discloses a strong prima facie case of willful deception of the court;
i.
the court must be satisfied that the additional evidence is not utilized for the purpose of removing the lacunae and filling gaps in evidence. The court must find the further evidence needful;
j.
a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in the appeal, fill up omissions or patch up the weak points in his/her case;
k.
the court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”
These principles have now been enacted in Section 20(1) of the Supreme Court (Amendment) Act No. 26 of 2022.
7.
Applying these principles to the application, it is evident that the material sought to be introduced, videos and audio recordings over alleged malpractices by Chitembwe, J. are the very subject of the tribunal’s investigations. The veracity of audio and video recordings of an interview of the President of the Court was determined in the Court’s ex tempore ruling of 14th July, 2022 followed by detailed reasons on 18th July, 2022. But of great significance is the fact that the applicant has all along been aware of the material he is now seeking to introduce. At the time he lodged the appeal in the Court of Appeal and even in this Court, he was well aware of the gazette notice of 18th May, 2022 in which a tribunal was appointed to investigate the conduct of Chitembwe, J. He has so averred himself in his submissions.
8.
Noting that the applicant has not explained the relevance of the so-called new evidence considering that what was before the Court was his removal from office, whose evidence was quite different from the conduct of Chitembwe, J.; in addition, it is noteworthy that the applicant’s petition before the High Court was heard by a bench of three judges and further that the first appellate court upheld the conclusion by the High Court.
9.
In Conclusion, none of the ten conditions for the grant of leave to bring additional evidence as reproduced in paragraph 6 (a) to (j) above have been satisfied; and therefore,
10.
For these reasons, we find no merit in this application and dismiss it.
11.
Costs follow the event. The applicant shall bear the costs of the 1st, 2nd, 4th, 5th, 6th 7th ,8th, 10th and 11th respondents who participated in this application.
12.
Accordingly, we make the following orders:
i.
The Notice of Motion application dated 20th July, 2022 is hereby dismissed.
ii.
The Applicant shall bear the costs of this application.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/32/eng@2022-08-08
Petition 11 (E008) of 2022,"Sonko v Clerk, County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) [2022] KESC 38 (KLR) (8 August 2022) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",8 August 2022,2022.0,Nairobi,Civil,"Sonko v Clerk, County Assembly of Nairobi City & 11 others",[2022] KESC 38 (KLR)               ,,"1.
Upon perusing the Notice of Motion application dated 18th July, 2022 and filed on even date, anchored on Articles 163(1) and (4), 159(2)(d) and (e) of the Constitution, Sections 3 and 21 (2) of the Supreme Court Act and Rule 3 as well as Rule 28(5) of the Supreme Court Rules 2020 and all enabling provisions of the law seeking the following orders
a.
That this Court be pleased to review and/or set aside its Judgment of 15th July 2022;
b.
That the Hon. Chief Justice, Martha Koome be pleased to recuse herself in this matter;
c.
That this Court be pleased to issue any further orders as it may deem fit in the circumstances; and
d.
Costs of this application.
2.
Upon perusing the grounds on the face of the application; the supporting affidavit of Hon. Mike Mbuvi Sonko, the applicant, dated 18th July, 2022; a further affidavit of 21st July, 2022; and a supplementary affidavit dated 26th July, 2022, all in support of the motion; and his submissions dated 26th July, 2022, to the effect that this application meets the strictures set out in the decision of Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others, SC Petition No. 6 of 2014; [2017] eKLR; that the judgment was obtained by fraud or deceit and secondly, that the judgment was a nullity as the Court was not competent to entertain it. According to the applicant, Chitembwe, J. the presiding judge in High Court Constitutional Petition E425 of 2020 which judgment has culminated in this appeal, is under investigations for judicial misconduct by a tribunal appointed under Article 168(5)(b) of the Constitution; that the determination of the tribunal will be crucial in ascertaining whether the Judge was biased against the applicant and whether the judgment of the High Court in Constitutional Petition E425 of 2020 can stand should the tribunal find Chitembwe, J. to have been biased and to be liable for misconduct. These, in the applicant’s view, constitute exceptional circumstances for review of the judgment as provided for under Rule 28 of the Supreme Court Rules.
3.
Further, the applicant submits, in support of the second relief, that the Hon. President of the Court presided over his appeal with a pre-determined mind on the question of his removal; that he has procured and now intends to produce evidence which elaborates on the perception of bias on the part of the President of the Court that could not be availed in the oral application for recusal which he made; and that had the President of the Court recused herself, the applicant submits, the Court would still be properly constituted with a quorum of five judges; and
4.
Upon considering the 1st, 2nd, 4th, 5th, 6th, 7th, 8th, 10th and 11th respondents’ separate grounds of opposition and submissions, whose combined effect is that, having rendered the judgment of 15th July, 2022, the Court is now functus officio, unless the applicant demonstrates exceptional circumstances; that the applicant has not done so; that the application has not met the conditions for the grant of an order for review under Rule 28(5) of the Supreme Court Rules; that with the finding that the Court’s jurisdiction was not properly invoked, a review application cannot confer jurisdiction on the Court; that review jurisdiction of the Court does not envisage substantial alteration of the judgment, as sought in this application; that since the Court is yet to release the reasons for the judgment, the application is premature; and that public interest demands an end to litigation on matters the Supreme Court has pronounced; and
5.
Noting further the respondents’ submissions that the application for recusal of the Hon. President of the Court is res-judicata, the Court having considered it and rendered itself on its merit in an ex tempore Ruling of 14th July, 2022 with reasons thereof following on 18th July, 2022.","We now pronounce as follows, bearing in mind all these submissions:
6.
Appreciating the provisions of Section 21A of the Supreme Court (Amendment) Act, No.26 of 2022 as well as Rule 28(5) of the Supreme Court Rules, 2020, together with the principles enunciated in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others case (supra), on which nearly all the parties have relied, we can restate this Court’s power to review its own decisions as follows. As a general rule, the Supreme Court cannot sit on appeal over its own decisions, or to review its decisions, save to correct obvious errors apparent on the face of the decision. However, in exercise of its inherent powers, the Court may, review its decision(s) “in exceptional circumstances, so as to meet the ends of justice”.
It will do so in instances where:
“
(i)
the Judgment, Ruling, or Order, is obtained, by fraud or deceit;
ii.
the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
iii.
the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;
iv.
the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.”
7.
Applying these conditions to this application, we have no hesitation in declaring that as framed, the application falls short of the exceptional circumstances and we decline the invitation to exercise the Court’s limited discretion to review the judgment. A review as envisaged by Section 21A and Rule 28(5) aforesaid, concerns the decision of this Court and not any other court below it. The applicant cannot demonstrate that the judgment of this Court of 15th July, 2022 was obtained by fraud and or deceit or in what way it is a nullity.
8.
Noting that only a summarized version of the judgment, without reasons was delivered on 15th July, 2022, there can be no basis to seek to review it. See Jimi Wanjigi v. Wafula Chebukati & 2 Others, SC Application 6 (E012) of 2022.
But more fundamentally, the Court having found as a main reason that its jurisdiction was not properly invoked, a review application cannot confer on it jurisdiction.
9.
Upon considering the second ground for review for the reason that the President of the Court ought to have recused herself, in a sentence, we reiterate that this question is res judicata, having previously been raised and finally determined in a ruling rendered on 14th July, 2022 culminating in detailed reasons on 18th July, 2022. That ruling, a distinct and separate decision, is not the subject of this application.
10.
Consequently, the conditions for review under Section 21A, Rule 28(5) aforesaid and elaborately explained in the Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others case (supra) have not been met. All this application is intended to achieve is to avail a second bite at the cherry to the applicant. The numerous applications and affidavits are aimed at vexing the rest of the parties in clear abuse not only of the court’s process but also of the constitutional guaranteed access to court.
11.
For reasons given above, the application lacks substance and is disallowed.
12.
Costs follow the event as such, the applicant shall bear the costs of the 1st, 2nd, 10th, 4th, 5th, 6th 7th ,8th and 11th respondents who have participated in this application.
13.
Accordingly, we make the following orders:
i.
The Notice of Motion application dated 18th July, 2022 is hereby dismissed.
ii.
The Applicant shall bear costs of this application in terms of paragraph 12.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/38/eng@2022-08-08
Petition 14 of 2020,"Director of Public Prosecution v Okemo & 4 others (Petition 14 of 2020) [2022] KESC 33 (KLR) (29 July 2022) (Reasons) (with dissent - W Ouko, SCJ)",Reasons,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",8 August 2022,2022.0,Nairobi,Civil,Director of Public Prosecution v Okemo & 4 others,[2022] KESC 33 (KLR)               ,,"Brief facts
On May 26, 2011, the Attorney General of Jersey made a request for the extradition of the appellants. The Office of the Attorney General (AG) (Kenya) handed over the Department of Public Prosecutions (then a department in the office of the AG) which later became the Office of the Director of Public Prosecutions (ODPP). The DPP issued an authority to proceed to the Chief Magistrate and filed extradition proceedings.
Aggrieved, the 1st and 2nd appellants via judicial review at the High Court challenged the authority of the ODPP to issue an authority to proceed to institute extradition proceedings. Their position was that Extradition (Commonwealth Countries) Act made no mention of the ODPP, they contended that the relevant authority with the power to institute extradition proceedings was the AG. The High Court held that extradition proceedings were of a criminal in character. The High Court further held that extradition proceedings were properly initiated by the ODPP. 
Dissatisfied with the High Court’s decision, the 1st and 2nd respondents lodged their respective appeals in the Court of Appeal. The Court of Appeal overturned the High Court’s decision and held that extradition proceedings fell wholly within the ambit of international law and were sui generis in nature; that it was the AG as opposed to the DPP who was empowered to issue the authority to proceed; and therefore, the extradition proceedings in issue were a nullity.
Aggrieved the ODPP filed the instant appeal in which they contended that the Court of Appeal erred in finding that extradition proceedings were sui generis in nature and were to be instituted by the AG. They sought for the Supreme Court to declare that the function institute and litigate extradition proceedings were vested in the ODPP.","E. Conclusion
174.
It is reasonable to conclude that whilst extradition hearings resemble criminal proceedings they are apart from them. They are accurately described as sui generis because they are unlike any other type of judicial proceeding. They are neither accusatorial nor civil law inquisitorial, nor even an amalgam of both. They do not have the characteristics of a criminal trial. They are also clearly not orthodox civil proceedings. For this reason, there cannot be any justification for the involvement of the DPP whose docket is purely prosecution of crimes within Kenya. Yet extradition is concerned with whether or not the person whose extradition is sought may be extradited in accordance with the provisions of the extradition treaty, international law and municipal law. It is not a criminal proceeding. Even if the potential extraditee is a criminal fugitive, an extradition proceeding is not by its nature and character criminal, for it is not punishment for a crime, even though such punishment may follow extradition. Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.
175.
To finally answer the narrow question in this appeal, like the Court of Appeal, I hold the view that “the authority to proceed” issued on July 6, 2011 by the DPP was irregular. He has no such powers or even to institute and process extradition proceedings under the Extradition (Commonwealth Countries) Act.
I would, for all the reasons stated, have affirmed the decision of the Court of Appeal and dismissed this appeal.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/33/eng@2022-07-29
Petition 16 (E019) of 2022,Abote v Kawaka & 4 others (Petition 16 (E019) of 2022) [2022] KESC 36 (KLR) (25 July 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",25 July 2022,2022.0,Nairobi,Civil,Abote v Kawaka & 4 others,[2022] KESC 36 (KLR)               ,,"1.
UPON perusing the Notice of Motion dated 18th July, 2022 and filed on 20th July, 2022, pursuant to Article 163(4) of the Constitution, Sections 3, 21 and 24 of the Supreme Court Act and all enabling provisions of the law for orders that:
i.
This Application be and is hereby certified urgent and heard ex parte in the first instance and appropriate directions issued;
ii.
The Honourable Court do on a matter of urgency set down this Application and the main petition {for hearing} on a priority and emergency basis;
iii.
Due to the urgency and strict timelines in the electoral process, this Honourable Court do direct immediate hearing of the petition lodged herein by the petitioner;
iv.
The Honourable Court do issue necessary directions to preserve the substratum of the petition including where necessary to stop the printing of ballot papers for Member of County Assembly for South Kabuoch/Pala Ward pending the hearing and determination of the Petition;
v.
Any other or further orders of the court geared towards protecting the dignity and authority of the court; and
2.
Upon reading the applicant’s grounds on the face of the application and the applicant’s supporting affidavit sworn on 18th July, 2022 wherein he deposes that, the Court of Appeal in its impugned judgment in Civil Appeal No. E168 of 2022 erred by allowing the 1st and 2nd Respondent’s appeal and setting aside in entirety the High Court’s judgment in Constitutional Petition No. 1 of 2022 and therefore created a legal crisis by allowing subordinate courts to ignore binding decisions of superior courts in interpreting the law and have the liberty to come up with their own conjured interpretations of the law that differs from prior interpretation made by superior courts; that the Court of Appeal erred in finding that the High Court erred in considering the holistic nature of elections; that the matter relates to the nomination and registration of candidates for the election slated for the 9th August, 2022 hence the need for the matter to be heard expeditiously; that the expeditious hearing and determination of the main petition will enable the applicant’s right to access to justice to be actualized in a meaningful way and; that the matter in dispute relates to and affects the exercise of the free franchise of millions of Kenyans who have a right to choose a leader of their choice in a democratic free and fair election; and
3.
Upon considering the written submissions by the applicant wherein it is submitted that the application is merited and that with the elections being days away, there is need for the appeal to be heard expeditiously as printing of ballot papers is underway in light of the upcoming elections, with time being of the essence hence the need to preserve the substratum of the petition including where necessary, the need to stop the printing of ballot papers for Member of County Assembly for South Kabuoch/Pala Ward pending determination of the appeal; and
4.
Further Considering the 1st and 2nd respondent’s amended preliminary objection and written submissions both dated and filed on 20th July, 2022 claiming that the applicant failed to file a Notice of Appeal, a jurisdictional pre-requisite citing Patricia Cherotich Sawe v. Independent Electoral & Boundaries Commission & 4 Others [2015] eKLR and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR; that the petition fails to specify under what limb of Article 163(4) that he invokes this Court’s jurisdiction, contending that this Court has held that a party invoking this Court’s appellate jurisdiction must indicate which constitutional provision they seek to move the Court citing Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others [2018] eKLR as well as Mike Mbuvi Sonko v Clerk County Assembly of Nairobi Supreme Court Petition 11 (E008) of 2022 and that the applicant failed to appeal Political Parties Dispute Tribunal judgment dated 1st May, 2022 before the High Court and the Court of Appeal, hence appealing the Political Parties Disputes Tribunal before the Supreme Court for the first time ever, claiming that the Supreme Court Act does not confer jurisdiction for direct appeals from the Political Parties Disputes Tribunal to the Supreme Court citing the case of Yusuf Gitau Abdalla v. Building Centre (K) Ltd & 4 Others [2014] eKLR ; and
5.
Also Noting the written submissions by the 4th and 5th respondents dated 21st July, 2022 opposing the application where they submit that this Court lacks jurisdiction to entertain the appeal citing the applicant’s failure to specify which limb of Article 163(4) that he has invoked this Court’s jurisdiction hence failing the threshold for jurisdiction test and rely on our finding in National Rainbow Coalition Kenya (NARC Kenya) v. Independent Electoral & Boundaries Commission; Tharaka Nithi County Assembly & 5 others (Interested Party) (Petition 1 of 2021) [2022] KESC 6 (KLR) (Civ) (17 February 2022) (Judgment), Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR and Daniel Kimani Njihia v Francis Mwangi Kimani & another [2015] eKLR on the need to invoke this Court’s proper jurisdiction and thus terming the applicant’s petition as incompetent and fatally defective; that the decision by the Political Parties Dispute Tribunal was not in issue before the High Court and Court of Appeal and submit that this Court again lacks jurisdiction under Article 163(4) and; that the appeal is not founded on any grounds of appeal as the Court of Appeal had failed to include reasons for its decision rendering the petition defective and incurable under Article 159 of the Constitution; and
6.
Further Noting the written submissions by the applicant in response to the 1st and 2nd respondents’ preliminary objection contending that the 1st and 2nd respondents were indeed served with a Notice of Appeal but invites the Court to consider that since the appeal involves an election matter, the applicant was constrained by time hence inviting the Court to be guided by the principles under Article 159 of the Constitution as well as pointing out that the appeal raises matters of public importance; and
7.
Taking into account the nature of the dispute and the urgency surrounding the determination of election related disputes and the impending elections to be held on 9th August, 2022, the applicant having sought to contest as a member of a County Assembly, and further taking into account that the judgment by the Court of Appeal sought to be appealed against is a brief judgment made without any reasons, the decision having been rendered pursuant to Rule 34(7) of the Court of Appeal Rules, 2022 and that the petition filed herein is not the subject of our determination under the application before us at this juncture, WE NOW OPINE as follows:
i.
Before addressing the substantive prayers in the nature of conservatory relief, a challenge has been made by all the respondents to the Court’s jurisdiction to determine the application and the petition. The present application is founded on Article 163(4) of the Constitution. The jurisdiction under Article 163(4) is two-fold; the appeal must either be of right under Article 163(4((a) or filed following certification as one raising matters of general public importance under Article 163(4)(b).
ii.
As already settled by this Court in Suleiman Mwamloe Warrakah & 2 other v Mwamloe Tchappu Mbwana & 4 Others, Petition No. 12 of 2018 [2018] eKLR and Daniel Kimani v Francis Mwangi Kimani & Another, SC Application No. 3 of 2014 [2015] eKLR, in seeking to invoke a court’s jurisdiction, a litigant must invoke the relevant constitutional or statutory provisions. We have in that regard often stated that, it is not for this Court to speculate on jurisdiction and assign to each appeal a jurisdiction not specifically invoked by a party. An appellant should therefore in an appeal, specify such jurisdiction with clarity to enable both the Court and the parties opposing the appeal to understand and know what type of appeal is before them. As we stated in Cordisons International (K) Limited v Chairman National Land Commission & 43 others, SC Petition No. 14 of 2019; [2020] eKLR without such specificity, such an appeal is one for striking out.
iii.
Furthermore, and in addition to the above, what is on record is a brief judgment without reasons from the Court of Appeal and as we recently held in Jimi Richard Wanjigi v Wafula Chebukati & 2 others, SC Application No.6 of 2022, an appeal must of necessity, be against the outcome of a case based on the reasons for such outcome. In this instant case just as was in Jimi Wanjigi, the reasons for the Court of Appeal judgment are still to be availed to this court. As we stated therein, which finding we do uphold, there is no basis upon which a petition, such as the present one, can be jurisprudentially determined in the absence of reasons for an impugned judgment thus rendering any hearing of an applicant’s appeal, in the absence of the reasons for the Court of Appeal judgment, untenable.
iv.
From the foregoing, we are unable to consider or grant the conservatory relief sought pending the determination of the appeal.","8.
Having therefore considered the Notice of Motion, Preliminary Objections plus responses thereto, we must Dismissthe Notice of Motion dated 18th July, 2022 and filed on 20th July, 2022.
9.
We shall make no order as to costs.
10.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/36/eng@2022-07-25
Petition 11(E008) of 2022,"Sonko v Clerk, Nairobi City County Assembly & 11 others (Petition 11(E008) of 2022) [2022] KESC 27 (KLR) (18 July 2022) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",18 July 2022,2022.0,Nairobi,Civil,"Sonko v Clerk, Nairobi City County Assembly & 11 others",[2022] KESC 27 (KLR)               ,,"[1]
Upon this appeal, which was listed for hearing on 14th July, 2022, being called out, Mr. Nyamu who appeared together with Dr. Khaminwa for the appellant indicated that he had a two-pronged application to make.
[2]
Firstly, Mr. Nyamu stated that owing to the manner in which the Court’s directions dated 11th and 12th July, 2022 were issued, it was difficult and nearly impossible for the appellant’s advocates to file comprehensive written submissions and adequately prepare for the hearing. More so, taking into account that at the time the appellant was directed to file his submissions there were no responses from the respondents. In addition, thereafter some of the respondents filed and served their responses as late as the morning of the hearing date. Counsel felt that the foregoing state of affairs was prejudicial to the appellant and so he applied for an adjournment.
[3]
Secondly, Mr. Nyamu submitted that the President of the Court had previously made certain remarks which indicated that she had taken a position with regard to the appellant’s matter which is before this Court. Consequently, the appellant was apprehensive of her impartiality as pertaining to the appeal and sought her recusal from presiding over the matter.
[4]
While opposing the application, Mr. Kokebe who appeared for the 1st and 2nd respondents submitted that some of the issues in the appeal had a bearing on the election cycle hence an adjournment would have a collateral effect on the forthcoming general elections. Further, as pertaining to recusal, he urged that the appellant ought to have made a formal application. Likewise, Mr. Ashioya for the 3rd respondent as well as Ms. Thanji for the 4th, 5th and 6th respondents reiterated the same position. In any event, Ms. Chemutai who held brief for Mr. Kiarie for the 11th respondent, submitted that recusal of the President of the Court would affect the quorum of the Court rendering it incapable of determining the appeal in the event that there was a tie.
[5]
Expounding further, Mr. Nyamodi for the 7th respondent argued that though the appeal was initially filed as an ordinary appeal it had a bearing on the forthcoming general elections. He submitted that the appellant had pleaded in an election matter filed in the High Court at Mombasa that he was eligible to vie for the seat of the Governor of Mombasa County since this appeal was still pending before the Court. As such, Mr. Nyamodi submitted that the determination of the appeal was of utmost urgency. He went on to express that the President of the Court also being the Chief Justice was entitled to comment on constitutional provisions; and in any case, the appellant had not demonstrated or disclosed what was uttered and how the alleged utterance was prejudicial to him or exhibited bias on the part of the President of the Court. As far as he was concerned, the appellant’s application was merely a gimmick by the appellant to stall the determination of the appeal. Counsel was of the view that the adjournment was sought in furtherance of a scheme borne by the fact that earlier on Mr. Nyamu, vide a letter dated 13th July, 2022 addressed to the Registrar of the Court, had indicated that he would be making an application to cease acting for the appellant.
[6]
On his part, Mr. Mukele for the 8th respondent, added that the determination of this appeal would enable the 8th respondent to not only deal with the appellant’s eligibility to vie for a Gubernatorial post but also resolve the dilemma or confusion that had arisen on account of a High Court decision. Furthermore, he added that the delay would also affect the printing of ballot papers for the forthcoming general elections. On the issue of recusal, he indicated he was not aware of the utterance alluded to by the appellant and urged the Court to dismiss the application for adjournment while noting the appeal was filed in April,2022 and the appellant should be able to get on with his case.","[7]
Upon considering the application and the opposition thereto, the Court dismissed the appellant’s application reserving to issue the reasons herein soon thereafter.
[8]
Beginning with the issue of adjournment, the Court does acknowledge that the directions dated 11th and 12th July, 2022 gave a short notice to the parties but that notwithstanding, the parties had albeit late complied and filed their respective submissions. Moreover, the Court took note of the fact that this appeal involves the same matter of impeachment of the appellant that arose from the Nairobi City County Assembly and the Senate. Dissatisfied with the outcome thereto, the appellant unsuccessfully applied to quash the decision before the High Court, the Court of Appeal and eventually, is before this Court. In the Courts view, the issues in dispute in all those proceedings having been crystalized, there is nothing new which would justify the appellant’s advocates’ contention that they needed more time, over and above what they have had from the time the appeal was filed, to prepare for the appeal.
[9]
Besides, it is not lost to the Court that the appellant did himself, play a role in the delay in the finalization of this matter by lodging the hard copy of his appeal on 20th May,2022, that is, over one month after filing the electronic copy thereof on 4th April, 2022 in the Court’s online platform. However, in the interest of justice and despite this delay by the appellant, which the Court deprecated, and due to the nature of the appeal, the Court by a ruling delivered on 11th July, 2022 opted to sustain rather than striking it out.
[10]
Furthermore, all the parties including counsel for the appellant agreed that the appeal was urgent. The Court has a duty to hear matters expeditiously and while noting the public interest implication of this appeal to the forthcoming elections as submitted by counsel for the respondents, we find no merit in the application for adjournment. From the time counsel for the appellant filed the appeal, he ought to have prepared to prosecute it once called upon by the Court.
[11]
On the issue of recusal, apart from the fact that no particulars of the alleged statements made by the President of the Court were provided, the Court has been consistent and resolute that an application for recusal of any Judge of the Court cannot be made from the bar. Rather, such an application must be through a formal written application lodged in the Court. It is common ground that the Court is composed of seven (7) Judges and the probability that the President of the Court would have presided over the appeal was certainly within the appellant’s knowledge. Therefore, the appellant should have filed a formal application for her recusal.
[12]
In the circumstances, there was nothing to demonstrate any prejudice or bias the appellant would suffer. All in all, the application for recusal did not meet the parameters for recusal of a Judge as delineated in this Court’s decision in Gladys Boss Shollei vs. Judicial Service Commission & Another, SC Petition 34 of 2014; [2018] eKLR and the Judicial Service (Code of Conduct and Ethics) Regulations, 2020.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/27/eng@2022-07-18
Application 6 (E012) of 2022,Wanjigi v Chebukati & 2 others (Application 6 (E012) of 2022) [2022] KESC 40 (KLR) (18 July 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          W Ouko",18 July 2022,2022.0,Nairobi,Civil,Wanjigi v Chebukati & 2 others,[2022] KESC 40 (KLR)               ,,"[1]
UPON perusing the Notice of Motion application by the applicant (Petitioner) dated 13th July 2022 and filed on 14th July 2022, pursuant to Article 163(4) of the Constitution, sections, 3, 21, 24 of the Supreme Court Act, and all enabling provisions of the law for the orders that:
i)
This Application be and is hereby certified urgent and heard ex parte in the first instance and appropriate directions issued;
ii)
The Honourable Court do on a matter of urgency set down this Application and the main Petition on a priority and emergency basis;
iii)
Due to the urgency and strict timelines in the electoral process, this Honourable Court do direct immediate hearing of the petition lodged herein by the petitioner;
iv)
The Honourable Court do issue necessary directions to preserve the substratum of the petition including where necessary to stop the printing of ballot papers for the presidential elections pending the hearing and determination of the petition;
v)
Any other or further orders of the court geared towards protecting the dignity and authority of the court.","[2]
UPON perusing the grounds on the face of the application that the Court of Appeal in its impugned judgment in Civil Appeal No.E404 of 2022 dismissing the Applicant’s appeal challenging the decision of the High Court in JR No. E083 of 2022 has inadvertently created a legal crisis by allowing subordinate courts and public administrators to ignore binding decisions of Superior Courts in interpreting the law by conjuring up interpretations different from those of the Superior Courts; that the superior court erred in holding that there can be no merit review in judicial proceedings under Article 47 of the Constitution which position has been affirmed by the Court of Appeal; in creating uncertainty owing to the numerous judgments of the same court affirming merit review in judicial review proceedings; that the matter relates to the nomination and registration of candidates for the presidential elections scheduled for 9th August 2022 and it is imperative that the Court hears the same expeditiously otherwise it will be rendered nugatory; that the expeditious hearing and determination of the main petition will enable the applicant’s right to access to justice to be actualized in a meaningful way; and that the matter in dispute relates to and affects the exercise of the free franchise of millions of Kenyans who have a right to choose a leader of their choice in a democratic free and fair election;
[3]
FURTHER, that the appeal involves and raises substantial points of law of general public importance to wit:- the judgment by the Court of Appeal created bad law and precedent, created conflicting and contradictory position in law from that set out in section 22(2) of the Elections Act which affirms that a degree holder is any person who has completed his university education; created confusion in direct conflict with settled legal position allowing merit review in judicial review proceedings; created wrong precedent in allowing public administrators to breach Article 38 of the Constitution by resorting to unreasonable and irrational parameters to refuse to register an otherwise qualified contestant for elections; and created an erroneous precedent contrary to Article 10 of the Constitution in affirming the violation of the principles of natural justice captured in the doctrine of nemo judex in causa sua.
[4]
UPON considering the affidavit in support of the application by the applicant, Jimi Richard Wanjigi sworn on 13th July 2022 and the submissions dated 13th July 2022 and filed on 14th July 2022, we note that the crux of the application is for the Court to issue necessary directions to preserve the substratum of the petition including, where necessary to stop the printing of the ballot papers by the 2nd respondent for the presidential elections pending the hearing and determination of the petition. The applicant relies on this court’s decisions in Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai & 4 others [2013] eKLR and Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others [2014] eKLR amongst other decisions to assert that the jurisprudence on judicial review is that it permits the court to undertake some merit review in certain circumstances. The applicant submits that he satisfies the twin principles of arguability and nugatory aspect to entitle him to the orders sought. He also submits that the petition of appeal has been filed contemporaneously with the present application and is due for hearing necessitating the prayer to preserve the substratum of the appeal.
[5]
WE HAVE ALSO CONSIDERED the 1st and 2nd respondents’ replying affidavit sworn by Chrispine Owiye, the 2nd respondent’s Director, Legal and Public Affairs sworn on 15th July 2022 on behalf of and with the authority of the 1st and 2nd respondents together with their written submissions dated 15th July 2022. The 1st and 2nd respondents are opposed to the application on two principal grounds - that this Honourable Court lacks jurisdiction to determine the appeal and petition filed herewith and that public interest mitigates against grant of the orders sought.
[6]
On jurisdiction, the 1st and 2nd respondents submit that the applicant does not indicate the specific jurisdiction he seeks to invoke contrary to the holding in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others SC Application No. 2 of 2011 [2012] eKLR rendering the appeal incompetent. In addition, that the issue before the superior courts below was the interpretation of section 22 (2) of the Election Act and the binding nature of the decisions cited in interpreting the said decisions. That the mere fact of citing Articles 38 and 10 of the Constitution without demonstrating its linkage to the Court of Appeal decision does not suffice as the applicant is merely arguing the rejection of his application for registration as a candidate for the presidential election.
[7]
On public interest, the 1st and 2nd respondents submit that the test for grant of conservatory orders is settled in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR that the applicant needs to satisfy the public interest test. They submit that public interest militates against the grant of the conservatory orders for the reasons that the August elections date is set by the Constitution and cannot be moved or changed, the election has a strict constitutional timeline and granting the orders sought has the possibility of throwing the constitutional order in limbo and that ballot papers have already been printed and for good use of public resources as prescribed under Article 201 of the Constitution, the Court should decline the invitation to grant orders sought. The 1st and 2nd respondents also submit that in any event the applicant does not meet the essence of interlocutory application as held in Board of Governors, Moi High School Kabarak & Another v Malcolm Bell SC Petition 6 & 7 of 2013 [2013] eKLR.
[8]
WE HAVE FURTHER CONSIDERED the 3rd respondent’s Notice of Preliminary Objection dated 15th July 2022 both to the application and to the petition of appeal. The grounds of objection is that the petitioner has failed to invoke the jurisdiction of the Court under Article 163(4) of the constitution; the petition does not raise any issue of constitutional interpretation or application as it is founded on mere allegations of violation of human rights on the presumption that these allegations automatically bring the appeal within the ambit of 163(4)(a) of the Constitution; that the petition has not been certified under Article 163(4)(b) of the Constitution as raising matters of general public importance as required and that having failed to properly invoke this Court’s jurisdiction, the application and petition is incompetent and fatally defective and an abuse of the court process.
[9]
TAKING INTO ACCOUNT the nature of the dispute and the urgency surrounding the determination of election-related disputes and the impending elections to be held on 9th August 2022, the applicant having sought to contest as a presidential candidate, and further taking into account that the judgment by the Court of Appeal sought to be appealed against is a brief judgment made without any reasons, the reasons for judgment having been reserved for 29th July 2022 pursuant to rule 34(7) of the Court of Appeal Rules 2022, and that the petition filed herein is not subject of our determination under the application before us at this juncture, we now opine as follows:
a)
Before addressing the substantive prayers in the nature of conservatory relief, a challenge has been made by all the respondents as to the Court’s jurisdiction to determine the application and petition which merits to be dealt with in limine. It is now settled that our jurisdiction is narrow and this Court is not just another appellate layer of courts to determine all appeals from the Court of Appeal (see Daniel Kimani Njihia v. Francis Mwangi Kimani & Another SC Civil Application 3 of 2014 [2015] eKLR). Our jurisdiction has to be specifically invoked and once that is done, the Court must be satisfied that the threshold for the jurisdiction so invoked is met;
b)
The present application is founded on Article 163(4) of the Constitution. This constitutional provision is two pronged. The appeal must either come as of right under Article 163(4)(a) or following certification as raising matters involving general public importance under Article 163(4)(b) of the Constitution. These jurisdictions are separate and cannot be jointly invoked in the same proceedings. In Hassan Nyanje Charo v Khatib Mwashetani & 3 others, SC Application No.15 of 2014 [2014] eKLR, this Court disallowed counsel’s argument that an intended appeal comprised a blend of “appeal-as-of-right” matters on the one hand, and “appeal-by-certification” matters on the other hand.
c)
We note that in paragraph 6 of the supporting affidavit, Jimi Richard Wanjigi depones as follows:
“
6. THAT my Counsel immediately filed a Notice of Appeal and the same was served upon the Respondents giving them Notice of the intended appeal to the Supreme Court on questions of application and interpretation of the Constitution under Article 163(4) of the Constitution.”
It is not immediately clear which provisions of the Constitution are subject of the appeal. Further, it is evident that the application is also stated as involving and raising substantial points of law of general public importance upon which the applicant raises six grounds (a) to (f) on the face of the application. This is reiterated in paragraph 25 of the supporting affidavit.
d)
As we recently held in Hon. Mike Mbuvi Sonko vs The Clerk County Assembly of Nairobi City County & 11 others SC Petition No. 11 (E008) of 2022, even when a party invokes the jurisdiction as of right, it is upon the party to identify and specify how the appeal concerns interpretation and application of the Constitution.
It can never be the role of the Court to wander around in the maze of pleadings and averments in order to assume jurisdiction by way of elimination. That is what the Court has consistently cautioned in decisions made by it. In Erad Suppliers & General Contractors Ltd v. National Cereals & Produce Board, SC Petition 5 of 2012; [2012] eKLR, we firmly established that, for an appeal to be admissible under Article 163(4)(a), a petitioner must demonstrate that the matter coming on appeal was the subject of litigation before the High Court, involving the interpretation and application of the Constitution, which has risen through the judicial hierarchy on appeal to the Court of Appeal and ending in this Court. In the same vein, for our jurisdiction under Article 163(4)(b) to be invoked, the appeal has to be preceded by certification on the basis of the principles set out in Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone SC Application 4 of 2012 [2013] eKLR, which is not the case in the present matter.
[10]
FROM THE FOREGOING, the applicants have failed to exhibit that they meet the threshold for invoking our jurisdiction. With the above finding, we are unable to consider or grant the conservatory relief sought pending the determination of the status of the petition of appeal whose jurisdiction is also under challenge by way of preliminary objection. The urgency of the matter not being contested, we can only fast-track the determination thereof.
[11]
We have already stated that what is on record is a brief judgment without reasons from the Court of Appeal. An appeal must of necessity be against the outcome of a case based on the reasons for such outcome. In the instant case, the reasons for the judgment are awaited. There can be no basis, we think, upon which the petition as currently drawn can be jurisprudentially determined in the absence of reasons for judgment. This then renders any hearing of the petition before the 29th July 2022 and/or in the absence of the reasons for the judgment untenable.
[12]
ACCORDINGLY, we make the following orders:
a) The Notice of Motion Application dated 13th July 2022 and filed on 14th July 2022 be and is hereby disallowed.
b) We make no orders as to costs. Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/40/eng@2022-07-18
Petition 11 (E008) of 2022,"Sonko v Clerk, County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) [2022] KESC 26 (KLR) (15 July 2022) (Judgment)",Judgement,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",15 July 2022,2022.0,Nairobi,Civil,"Sonko v Clerk, County Assembly of Nairobi City & 11 others",[2022] KESC 26 (KLR)               ,,"Brief facts
The appellant was removed from the Office of Governor, Nairobi City County, by way of an impeachment motion initiated by the 2nd respondent (the County Assembly). The decision of the County Assembly was confirmed by the 6th respondent (the Senate). Attempts by the appellant and the 12th respondent to overturn the decision through a challenge both in the High Court and the Court of Appeal were unsuccessful, precipitating the instant appeal.
The judgment of the Court of Appeal was impugned on among other grounds; whether due process was followed by the County Assembly in the removal of the appellant from the office of Governor; whether the appellant was accorded adequate time and facility to respond to the charges against him both at the County Assembly and in the Senate; whether it was mandatory to verify the impeachment motion by affidavits or other statements on oath by members of the County Assembly who allegedly supported the motion and whether public participation was undertaken.
The 3rd respondent filed a notice of preliminary objection challenging the jurisdiction of the court to entertain the appeal for the reasons that the court was improperly moved by invocation of the wrong constitutional and/or statutory provisions; that the issues in the appeal did not concern any question involving interpretation or application of the Constitution of Kenya, 2010 (Constitution). Equally, the 7th respondent in its grounds of objection raised the issue of jurisdiction and faulted the appellant for failing to specify the provisions under which he invoked the court’s jurisdiction.","Held
Not every issue that was before the superior courts and which had been raised in the instant appeal was open for the court’s determination in exercise of its appellate jurisdiction. Matters of fact that touched on evidence without any constitutional underpinning were not open for the court’s review on appeal.
A constitutional mandate, which embodied the remit of impeachment, vested in the legislative branches of Government, in the instant case in the County Assembly and the Senate. It was in those two constitutional organs’ exclusive spheres of jurisdiction, that the impeachment of a county governor was reposed. In discharging that function, they had to live by the edict of the Constitution. Where it was alleged that any of them had failed to act in accordance with the Constitution, then the courts were empowered by article 165 (3)(d)(ii) of the Constitution to determine that allegation. Similarly, the court could interfere where it had been demonstrated that there had been a failure to abide by the Standing Orders of either the County Assembly or the Senate, because those Standing Orders had a constitutional underpinning in article 124 of the Constitution.
The impeachment architecture in the Constitution, the law and the Standing Orders left no doubt that removal of a governor related to accountability, political governance and personal responsibility and not necessarily about criminal responsibility. In so far as the process of removal of a governor from office was concerned, the court’s role was confined to deciding whether the governor’s constitutional rights and fundamental freedoms had been breached in the process and whether the procedures for removal from office had been followed, without the court constituting itself into any of the two constitutional organs in whose hands the power to remove was vested.
Without jurisdiction a court had no power and had to down tools in respect of the matter in question. Appeals from the Court of Appeal lay to the instant court pursuant to articles 163(4)(a)or 163(4)(b) of the Constitution and that an appeal would not lie to the instant court, unless brought within the compass of either of the two jurisdictional limbs.
The appellant in his petition of appeal had expressly moved the court under two rules of the Court’s Rules, namely the repealed rules, 9 and 33 of 2012. Properly cited, those two rules related to the contents of a petition of appeal and the time frame for lodging an appeal as well as the documents that formed the record of appeal. They clearly did not give jurisdiction to the court.
In view of the nature of its jurisdiction as far as appeals from the Court of Appeal were concerned, a party moving the court had to bear in mind the limits of its jurisdiction and had to decide either to seek a certification as a matter of general public importance (GPI) under article 163(4)(b) of the Constitution or came as a matter of right under article 163(4)(a) thereof. Even when a party invoked the latter, it was upon the party to identify and specify how the appeal concerned interpretation and application of the Constitution. It could never be the role of the court to wander around in the maze of pleadings and averments in order to assume jurisdiction by way of elimination.
It was incumbent upon the appellant to demonstrate in limine that the grievance he had presented to the court concerned the application or interpretation of the Constitution which the Court of Appeal used to dispose of the matter in question before that court. The appellant had failed to do that. The preliminary objection met the threshold in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors ltd (1969) EA 696 and the court sustained it.
The impeachment proceedings before the County Assembly and the Senate were properly conducted in accordance with article 181 of the Constitution, section 33 of the County Governments Act and Standing Orders of the County Assembly and the Senate.
The appellant was accorded adequate time and facility to respond to the charges against him both at the County Assembly and in the Senate considering the timelines stipulated in the law within which the Assembly and the Senate had to conclude their investigations and the prevailing Covid-19 global pandemic restrictions that were in place at the time of the impeachment proceedings. The appellant had adequate time and facility, because he was able to sufficiently respond to the charges brought against him.
Standing order 67(1) of the Nairobi City County Assembly Standing Orders, required that the motion for impeachment had to be signed by the member moving the motion who affirmed that the particulars of allegations contained in the motion were true. In the same vein, each of the members constituting at least a third of all the members in support had to verify that the allegations therein were true of their own knowledge and belief on the basis of their reading and appreciation of information pertinent thereto. Each of them was required to signify that by signing a verification form provided by the clerk for that purpose.
No material had been presented in the appeal to suggest that the Court of Appeal erred in its analysis and conclusion that the mover and all members in support signed the form and included the numbers of their identification cards against their names. That was the form of verification envisaged in the context of an impeachment motion and not an affidavit or any form of disposition.
The two superior courts below in unanimity found uncontroverted evidence that the intended tabling before the County Assembly of a motion for the impeachment of the appellant was not only advertised in a local daily newspaper with wide circulation, in response to which people submitted memoranda, but also a survey was conducted in the county in the form of questionnaires. The proceedings were in public.
Impeachment proceedings, though quasi-judicial were not in the nature of criminal proceedings. A litigant was not required to establish criminal culpability in order to succeed. All that was required was that the allegations be substantiated. But as a constitutional remedy, impeachment served as an important check on the exercise of Executive power regarding violations of law and abuses of power.
There were four counts of impeachable charges against the appellant. The County Assembly, the Senate and the two superior courts below were convinced that the charges were proved to the standard required in such circumstances. The proof of even a single charge would be sufficient. Nothing had been placed before us to warrant the instant court’s departure from the conclusions by the two superior courts.
Under article 1 of the Constitution, all sovereign power belonged to the people of Kenya. That power could only be exercised in accordance with the Constitution. Further, the people could exercise that power either directly or through their democratically elected representatives. Specifically, sovereign power of the people was delegated to State organs such as Parliament and the legislative assemblies in the county governments. In the instant situation, the people exercised their power through the latter to uphold and defend Chapter Six of the Constitution.
The impeachment of the appellant was in compliance with the Constitution and the law. Chapter Six of the Constitution was not enacted in vain or for cosmetic reasons. The authority assigned to a State officer was a public trust to be exercised in a manner that demonstrated respect for the people; brought honour to the nation and dignity to the office and promoted public confidence in the integrity of the office. It vested in the State officer the responsibility to serve the people, rather than the power to rule them.
Appeal dismissed.
Orders
Each party to bear its own costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/26/eng@2022-07-15
Petition (Application) 11 (E008) of 2022,"Sonko v Clerk, County Assembly of Nairobi City & 11 others (Petition (Application) 11 (E008) of 2022) [2022] KESC 28 (KLR) (11 July 2022) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",11 July 2022,2022.0,Nairobi,Civil,"Sonko v Clerk, County Assembly of Nairobi City & 11 others",[2022] KESC 28 (KLR)               ,,"Brief facts
The 1st respondent filed the instant application in which it sought for the notice of appeal to be struck out for failure to file an appeal within 30 days of the delivery of the Judgment.
The application was on the grounds that the appellant lodged a soft copy notice of appeal in the Judiciary’s online portal in time but did not file or serve the hard copies in time.  Subsequently the 1st respondent sought for the notice of appeal and petition of appeal filed by the appellant to be struck out. ","Held
The appellant filed a notice of appeal at the Court of Appeal 4 days after the Court of Appeal Judgment. The appellant filed his petition of appeal on the Supreme Court's online platform on the last day for doing so. Rule 12 of the Supreme Court Rules provided that the printed copy of any pleading, while matching the electronic copy, was to be filed simultaneously with the latter. The rule remained the operative rule in the Supreme Court.
Though the appellant sat on the printed copy for more than one month, once the appellant was directed to file the same, he did so within 2 days and thereafter served the respondents. While the conduct of the appellant in not filing the printed copy timeously had not been explained, the circumstances as outlined above would not lead to any adverse orders against him and although his conduct was nonetheless to be deprecated, the court would focus on the substantive appeal.
Motion dismissed and preliminary objection overruled. 
Orders
No orders as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/28/eng@2022-07-11
Petition 3 (E004) of 2022,Dhanjal Investments Limited v Shabaha Investments Limited (Petition 3 (E004) of 2022) [2022] KESC 41 (KLR) (Civ) (8 July 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",8 July 2022,2022.0,Nairobi,Civil,Dhanjal Investments Limited v Shabaha Investments Limited,[2022] KESC 41 (KLR)               ,,"1.
UPON perusing the Respondent’s Notice of Preliminary Objection dated 23rd March, 2022 and lodged on 24th March, 2022 challenging this Court’s jurisdiction to entertain the petition on the grounds that:
i.
The appeal is in violation of the Supreme Court’s mandate;
ii.
The appeal does not raise any issues relating to the interpretation or application of the Constitution;
iii.
That the appeal does not involve any matter of general public importance; and
iv.
The appeal has been brought without certification as required by law;
and
2.
UPON considering the respondent’s submissions dated 5th May, 2022 and filed on 9th May, 2022 in furtherance of these grounds, to the effect that the appeal herein does not involve constitutional interpretation or application; that the pleadings filed in both superior courts below only show that the central issue for determination was whether or not interest on balance of purchase price of the suit property was payable to the respondent; that at no point in the proceedings was any matter of a constitutional nature raised; and that the issue of fair hearing raised by the appellant in its submissions at the Court of Appeal was an afterthought well calculated to give this Court jurisdiction; and
3.
UPON considering the appellant’s response to the preliminary objection dated 5th April, 2022 and submissions dated 16th May, 2022 to the effect that the matters being raised in the appeal relate to the right to fair trial under Articles 25(c) and 50(1) of the Constitution and the question of impediment to access to justice contrary to Article 48 of the Constitution; that in ground no 1 of its memorandum of appeal before the Court of Appeal, the appellant raised the issue of fair trial which the Court of Appeal proceeded to make a determination on; that the Court of Appeal also dealt with the question whether the fact that the loss of the original court file was prejudicial to the appellant’s right to access to justice; and that this appeal has been brought as of right pursuant to Article 163(4)(a) and therefore does not require certification; and","In view of the foregoing, We Now Pronounce As Follows:
4.
ACKNOWLEDGING the fact that jurisdiction is everything and that without it a court has no power to make one more step, but to dismiss such a case. Further, cognizant of the decision of this Court in Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR, where it was emphasized that a court’s jurisdiction flows from either the Constitution or legislation or both. We must, in limine, therefore be satisfied that the appellant has properly invoked the jurisdiction of this Court; and
5.
GUIDED by the principles set out by this Court in the case of Lawrence Nduttu & 6000 others v. Kenya Breweries Ltd & another, SC Petition 3 of 2012; [2012] eKLR, that to bring an appeal under the ambit of Article 163(4)(a) of the Constitution, an appellant must be challenging the interpretation or application of the Constitution upon which the Court of Appeal disposed of the matter in that forum; that as a bare minimum, an appellant should demonstrate that the Court of Appeal’s reasoning and conclusions which led to the determination of the issue before it related to application or interpretation of the Constitution. See also Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [2014] eKLR; and
6.
UPON examination of the record, we note that the appeal is brought, “under Article 163(4)(a) of the Constitution of Kenya 2010, Sections 15(2), 21(1)(3) of the Supreme Court Act and Rules 12, 38 and 39 of the Supreme Court Rules, 2020”. It is, in that sense anchored on the interpretation and application of Articles 25(c), Article 50(1) and Article 47 of the Constitution; and
7.
NOTING that the cause of action before the High Court arose from the performance of a sale agreement between the parties in which the respondent’s claim against the appellant was for;
“
a.
a declaration that the Agreement for sale between the plaintiff and the defendant in respect of the suit property is valid.
b.
payment of Kshs.38, 700,000/= being the balance of the purchase price owed to the plaintiff by the defendant.
c.
interest on (b) at 30% per annum as agreed payable from the date the Defendant took possession of the suit property being the 27th January 1996 until payment in full.
d.
General damages.
e
Mesne profit from the 27th January 1996 being damage for breach of contract at Kshs. 407,891537.56 as at 30th April 2008, until payment in full of the balance of the purchase price inclusive of all interest due and payable herein.
f.
Costs of this suit.
g.
interest …… at court rates”; and
8.
NOTING FURTHER that the parties compromised the suit by recording a consent whereby the appellant agreed to pay the aforesaid balance, leaving only a single issue for determination being the interest payable to the respondent. This fact notwithstanding, before the Court of Appeal, the appellant claimed that due to a delay of nearly 24 years in the conclusion of both the main suit and the appeal, it had been denied the right to a fair trial. It further alleged that, although this issue was urged in the High Court, no determination was made of it; and
9.
NOTING ALSO, that the Court of Appeal in its determination of this question observed that the appellant blamed both the courts and the respondent for the delay but failed to provide evidence of how the respondent, who was only a party to the appeal breached its right to fair trial; and that the appellant did not raise the constitutionality or otherwise of the trial in his counterclaim or as a preliminary issue for determination. For the reason that the claim was raised for the first time in the Court of Appeal, and only in the submissions, the Court of Appeal expressed the view that there was no basis for it to make any findings on the alleged violations of the right to fair trial. With that, the Court of Appeal proceeded to determine four substantive and pleaded issues; and
10.
UPON evaluating the present preliminary objection and the grounds raised in opposition, and after perusing the record as a whole, it is evident to us that the solitary question, following the recording of a consent on 7th September 2012 in the High Court, was one of the interest payable on the Kshs 38,700,000.00 and the costs which were to be mutually agreed upon by the parties, or assessed by the High Court if the parties failed to agree. There was no question of the interpretation and application of the Constitution whatsoever. Yet this Court, in Erad Suppliers & General Contractors Ltd v. National Cereals & Produce Board, SC Petition 5 of 2012; [2012] eKLR, firmly established that, for an appeal to be admissible under Article 163(4)(a), a petitioner must demonstrate that the matter coming on appeal was the subject of litigation before the High Court, involving the interpretation and application of the Constitution, which has risen through the judicial hierarchy on appeal to the Court of Appeal and ending in this Court; and
11.
SATISFIED that the question of violation of the appellant’s right to a fair hearing has never been the issue in controversy but was strategically introduced in the Court of Appeal so as to prepare a basis to approach this Court. It was not one of the four questions framed by the Court of Appeal for its determination, namely;
“
…. whether there was any breach of the sale agreement by the Appellant or Respondent, and if so the effect thereof, including on the validity of the sale agreement. Secondly, whether the doctrine of lis pendens applied to the sale agreement, and if so, the effect thereof. Thirdly, whether the Respondent was entitled to payment of interest and if so at what rate and for what period. Lastly, whether the Appellant was entitled to payment of damages, and if so, the quantum.”
The question of violation of the appellant’s constitutional rights not having been argued and determined by the High Court, was not central to the determination by the Court of Appeal. In any case, if the delay amounted to a violation of the appellant’s right to a fair hearing, the respondent was equally affected as it was also denied the fruits of the agreement for the said period of 24 years.
12.
WE NOW reiterate what we said in Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others [supra], that the Court’s jurisdiction cannot be expanded through judicial craft or innovation. From the totality of the material before us, it cannot be said that the reasoning which led to the determination of the issues before the Court of Appeal and by extension the High Court, involved the interpretation or application of the Constitution. We conclude here as we did in Lawrence Nduttu [supra], that where the case to be appealed from has had nothing or little to do with the interpretation or application of the Constitution, as is the case in this appeal, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4)(a).
13.
In the end we are satisfied that this appeal does not meet the jurisdictional threshold of Article 163(4)(a), with the result that we decline the invitation to assume jurisdiction to entertain it.
14.
ACCORDINGLY, we make the following Orders:
i.
The Preliminary Objection dated 23rd March, 2022 is hereby sustained.
ii.
The Petition of Appeal dated 7th March, 2022 is hereby struck out.
iii.
As costs follow the event and are in the discretion of the Court we order that the Appellant shall bear the costs of the appeal
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/41/eng@2022-07-08
Petition 3 of 2021,Karani v Judicial Service Commission (Petition 3 of 2021) [2022] KESC 37 (KLR) (8 July 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko,                                                                                                                          I Lenaola",8 July 2022,2022.0,Nairobi,Civil,Karani v Judicial Service Commission,[2022] KESC 37 (KLR)               ,,"Brief facts
The appellant was a principal magistrate at the time of his dismissal. He delivered a judgment in a matter a day earlier than scheduled and in the presence of the defendant’s counsel who emerged victorious. Counsel for the plaintiff in that case filed a formal complaint against the appellant through a letter addressed to the resident judge at Mombasa and copied to inter alia the Office of the Ombudsman. The Chief Justice instituted disciplinary proceedings against the appellant by interdicting him with immediate effect and forwarded two framed charges: delivery of a decision a day earlier than scheduled without notifying one of the parties and absenteeism. 
The Chief Justice also annexed a brief statement of the allegations to the appellant. The appellant admitted to delivering the judgment a day earlier and termed it an honest mistake. On the charge of absenteeism, he gave a detailed account of his time at the station both on duty and off duty. After an oral hearing, the respondent, Judicial Service Commission (JSC) informed the appellant that it had resolved to dismiss him with immediate effect on grounds of misconduct which had been proved on the first charge leveled against him. 
Aggrieved, the appellant challenged the decision at the Employment and Labour Relations Court. The appellant claimed that he was condemned unheard and that he was not accorded a chance to cross-examine persons who gave adverse evidence against him. The appellant asserted that the JSC did not have jurisdiction to exercise judicial or administrative authority over judicial officers’ sittings in court while rendering judgments. The appellant contended that the fifteen (15) months it took to hear his disciplinary case violated his right to have expeditious and efficient administrative action. He thus prayed for, among others, the setting aside of his interdiction and eventual dismissal and compensation in damages for violation of his rights. The Court, having found no other breach of the Constitution other than that of the appellant’s right to have an expeditious hearing infringed upon, awarded the appellant damages for that breach to the tune of Kenya Shillings one million (Kshs. 1,000,000). 
Aggrieved by the decision of the Employment and Labour Relations Court, the JSC filed an appeal at the Court of Appeal challenging part of the judgment that awarded the appellant damages and costs. The appellant cross-appealed and prayed for reinstatement and payment of all back salaries, enhancement of the damages and costs of the cross-appeal. The Court of Appeal held that the appellant did not prove his case and was therefore not entitled to the compensation awarded to him. The court dismissed the cross-appeal. Aggrieved, the appellant filed the instant appeal as of right in a matter involving the interpretation or application of the Constitution of Kenya, 2010 (Constitution). The JSC filed a preliminary objection contending that the appeal did not raise any matters of constitutional interpretation or application under article 163(4)(a) of the Constitution and thus sought for the same to be struck out. ","Held
Article 163(4)(a) of the Constitution had to be seen as laying down the principle that not all intended appeals lay from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court. The only other instance when an appeal could lie to the Supreme Court was one contemplated under article 163(4)(b). 
It was not the mere allegation in pleadings by a party that clothed an appeal with the attributes of constitutional interpretation or application. The appeal had to originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant had to be challenging the interpretation or application of the Constitution, which the Court of Appeal used to dispose of the matter in that forum. Such a party had to be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court under article 163(4)(a) of the Constitution. 
Where specific constitutional provisions could not be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate was that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, could properly be said to have taken a trajectory of constitutional interpretation or application. The issues before the Employment and Labour Relations Court as well as the Court of Appeal involved the interpretation and application of the Constitution. The instant court had jurisdiction in respect of the appeal. 
The right to fair hearing was enshrined under article 50(1) of the Constitution which stated that every person had the right to have any dispute that could be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Article 25 of the Constitution stipulated that certain freedoms were so fundamental that they could not be limited, despite any other provision of the Constitution. The right to a fair trial was one of those fundamental, non-derogable rights under the Constitution. That right was applicable to both judicial and administrative cases. 
The principles to guide the courts in considering matters concerning disciplinary proceedings before the JSC were as follows: 
The JSC had to comply with the procedure set out in article 47 of the Constitution and the Fair Administrative Actions Act.
The JSC had to always give an employee reasonable time to defend himself or herself.
An employee had to be informed the basis of complaint(s) or who his or her accusers to enable the employee defend themselves.
The JSC had to furnish an employee with details of allegations against him or her.
The JSC had to always be clear from the start whether the administrative action against an employee was of an investigatory nature or of a disciplinary nature. Should an investigatory process turn into a disciplinary one, an employee had to be accorded fresh notice to prepare his/her defence.
An employee had to be accorded a public hearing if he/she desired to have one. A decision to decline such a request had to be accompanied with reasons which should be given to the employee.
An employee had to be given detailed reasons for any administrative action/decision by the JSC. An employee should access and receive any relevant documents relating to his/her matter. Any decision to the contrary had to be accompanied by a written reason.
An employee had to be accorded opportunity to attend proceedings, in person or in the company of an expert of his/her choice.
An employee undergoing disciplinary proceedings had to be given an opportunity to call witnesses, be heard; cross-examine witnesses, and request an adjournment of the proceedings upon providing good reasons and where necessary to ensure a fair hearing.
The court may not have applied the principles to guide the courts in considering matters concerning disciplinary proceedings before the JSC as the JSC heard and determined the appellant’s case before the instant court pronounced those guiding principles. 
What was filed before the Employment and Labour Relations Court was not a judicial review application filed pursuant to section 9 of the Fair Administrative Actions Act. Rather, the appellant filed a substantive suit by an employee against his employer challenging the terms of the dismissal. Further, as a first appellate court, the role of the Court of Appeal, pursuant to rule 29 of the Court of Appeal Rules, 2010, was to subject the whole of the evidence to a fresh and exhaustive scrutiny and make its own conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. 
Article 172(1)(c) of the Constitution provided that one of the JSC’s functions was to appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament. The Judicial Service Act No. 1 of 2011 was the statute that was enacted by Parliament pursuant to article 172. The appointment, discipline and removal of judicial officers and staff was governed by section 32 of the Judicial Service Act together with the Third Schedule to the Act. 
The Chief Justice was not required to carry out an investigation before framing charges and interdicting the appellant. Rather, as rule 25 of the Third Schedule to the Judicial Service Act provided that the Chief Justice was to carry out an inquiry into allegations made against a judicial officer. Rule 16 of the Third Schedule which empowered the Chief Justice to interdict, made no reference to an investigation, only that the Chief Justice had to be satisfied that public interest required interdiction, provided that proceedings which could lead to their dismissal were being taken or were about to be taken. 
The Chief Justice on receiving a reply to charges framed, if not convinced by the defence raised by an officer, then forwarded the charges and reply, if any, to the JSC to determine whether or not to proceed with disciplinary proceedings. If the JSC elected to proceed with disciplinary proceedings, it then appointed a committee or panel. Therefore, it was the committee or panel of the JSC that carried out the investigation into a disciplinary case of an officer. Once the committee concluded its investigation, it prepared a report containing the charge, the evidence, the defence, its proceedings and its recommendations to the JSC to consider. The JSC then elected what to do with the report and if it concluded that a punishment was warranted, it chose appropriate sanctions from those provided under rule 19 of the Third Schedule to the Judicial Service Act. That was pursuant to rule 25(9), (10), and (11) of the Third Schedule. 
The principle of nemo judex in causa sua, the duty to reach a decision untainted by bias, was entrenched in the Constitution as the right to fair hearing and the right to fair administrative action, pursuant to articles 50(1) and 47(1) of the Constitution. A critical exception to the principle was where the overlap of functions was a creation of statute and as long as the constitutionality of the statute was not in issue. One of the justifications that legislatures had for allowing overlapping of functions, which in normal judicial proceedings would be kept separate, was to achieve efficiency when such a body had to undertake several activities, both in administrative and adjudicative capacities. 
 The appellant had not called to question the constitutionality of section 32 of the Judicial Service Act or the Third Schedule to the Act, on the JSC’s functions of disciplining and removing judicial officers. In order to avoid running afoul the nemo judex in causa sua principle, a statutory body had to comply with the requirements of impartiality and independence under article 50(1) and 47 of the Constitution. The mere overlap of roles by a statutory body carrying out quasi- judicial functions was not in itself contrary to the principle of nemo judex in causa sua. Statutory bodies had to always apply and adhere to the requirements of impartiality and independence in carrying out its quasi- judicial duties. 
The JSC, through rule 25 of the Third Schedule to the Judicial Service Act, avoided a situation of being the accuser, the investigator, the judge and the appellate body, all rolled into one. Through rule 25, the JSC ensured that different actors took on the different roles: the Chief Justice framed the charges, a committee or panel of the JSC carried out the investigation, the JSC then played the role of judge, and finally an aggrieved party had a right of appeal to the judicial system, either by way of judicial review pursuant to section 9 of the Fair Administrative Act or substantive suit to the Employment and Labour Relations Court. In that way, there were inbuilt safeguards that ensured a judicial officer or staff had their right to fair administrative actions, and right to fair trial observed throughout the entire disciplinary process. 
The appellant had throughout admitted to his mistake. The law relating to admissions was found in sections 17 to 24 of the Evidence Act. Admissions in criminal matters were treated very differently from civil matters. Pursuant to section 25A of the Evidence Act confessions and admissions were both inadmissible unless made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of inspector of police, and a third party of the person’s choice.
A confession was a direct acknowledgement of guilt on the part of the accused while an admission was a statement by the accused, direct or implied, of facts pertinent to the issue which, in connection with other facts, tended to prove his guilt, but which, of itself, was insufficient to found a conviction. Admissions were treated differently in civil matters, whereby pursuant to Order 13 rule 2 of the Civil Procedure Rules, 2010, judgment could be entered on the strength of an admission. Section 24 of the Evidence Act provided that admissions were not conclusive proof of the matters admitted, but they could operate as estoppels under the provisions thereinafter contained. 
The appellant had all along admitted to making the mistake of delivery of judgment a day earlier than scheduled and in the presence of only one party who happened to be the victorious party. The circumstances of the appellant’s error were interrogated fairly substantively by the committee of the JSC. The appellant, due to his own admission, was precluded from blaming the JSC for not calling witnesses who accused him or disallowing him from cross-examining them as the same proved unnecessary. 
Once the appellant admitted to the error, all that was left was for him to convince the JSC that the circumstances surrounding the mistake were defensible. Further, since admitting to his mistake, when required to explain to circumstances of the mistake, it was not an unfair shifting of the burden of proof. Pursuant to section 112 of the Evidence Act, in civil proceedings when any fact was especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact was upon that party. In the instant case, the circumstances of how the mistake occurred were within the appellant’s knowledge and control as the judicial officer charged with hearing parties and rendering decisions on disputes. 
The JSC followed the elaborate laid out procedure set out in article 172, section 32 of the Judicial Service Act and the rules under the Third Schedule to the Judicial Service Act. The appellant was afforded an opportunity for hearing and the same was reasonable. Consequently, the appellant was afforded the right to fair hearing, fair labour practices and fair administrative actions pursuant to articles 50, 41, and 47. 
Judicial immunity was meant to protect judicial officers from third parties’ interference, influence or obstruction. Judicial immunity was also necessary to protect the reputation and perception of the Judiciary, to maintain the trust of the public and ensure transparency and accountability. Under the doctrine of judicial immunity, a judicial officer was absolutely immune from criminal or civil suit arising from acts taken within or even in excess of his jurisdiction and the protection or immunity of a judge also went into administrative acts. Judges and judicial officers remained unquestionably immune as long as they did not take actions that intentionally and plainly prevented litigants from enjoying their constitutional and statutory rights. 
While a party aggrieved by a judicial officer’s decision or action could not sue them in their personal capacity, in either criminal or civil proceedings, they were not without recourse. Aggrieved parties could institute proceedings before the JSC seeking removal of judges and judicial officers. Which was the case therein. The appellant was not protected by judicial immunity in the circumstances of the case, as the complainant triggered proceedings for the appellant’s removal when they lodged their complaint with the Ombudsman. 
It was a long-held practice that parties were precluded from arguing their cases piecemeal. They had to present the entirety of their case at the first instance to allow the courts or administrative bodies to make a full and final determination of all pertinent issues relevant to a case. The appellant should have used every defence in his arsenal at the first instance, being while he was before the committee of the JSC defending himself. When he failed to do so, he was precluded from raising preliminary arguments thereafter, more so on appeal to the Court of Appeal. The proceedings before the JSC were lawful and the determination, following due process, to remove the appellant were well within the confines of the Constitution. 
The Judicial Service Act did not prescribe a time within which the JSC had to hear and determine disciplinary cases. The Judiciary’s Human Resource Policies and Procedures Manual also did not specify a time period for the conclusion of disciplinary cases. Delay, on its own did not lead the court to conclude that there was an infringement of rights. Where there was delay, the court had to interrogate whether the same was justifiable and thus excusable or not. In order to do that, the court had to interrogate the circumstances of the case. 
The reasons the JSC had put forward demonstrated both external and internal factors, some beyond its control. The JSC was a major employer of one arm of the government, managing numerous judges, judicial officers, and judicial staff stationed all over Kenya. A delay of fifteen (15) months, without knowing whether he would lose his job caused the appellant anguish, despair, and economic distress having half his salary taken away due to being on interdiction. The JSC, as the appellant’s employee, was required to accord him disciplinary administrative action which was expeditious and efficient pursuant to article 47 of the Constitution. Indeed, the JSC owed that duty to each of its personnel, regardless of rank.
 The reasons forwarded by the JSC were not insubstantial. Key among them was the exercise of recruiting a chief justice to head the judiciary, which needed to rank exceedingly high on the JSC’s obligations. The circumstances of the appellant’s case were distinguishable from the cases of Dennis Moturi Anyoka v Kenya Revenue Authority & 2 Others and Grace A Omolo v Attorney General & 3 others as the employers in those cases had set timelines as part of their disciplinary policies, unlike the JSC. The appellant’s case could also be distinguished from Judicial Service Commission v Daniel Ochenja as the delay therein was 26 months, which was nearly a whole year more than in the appellant’s case. 
The delay in the appellant’s case was not unreasonable as to warrant an award of damages. Due to having the question of its applicable administrative procedure questioned, the JSC should include a prescribed timeline for disposal of disciplinary cases after relooking at its policy on the reasonable period it was likely to take in hearing and expeditiously handling disciplinary cases. 
Appeal dismissed; preliminary objection dismissed.
Orders
Each party to bear its own costs at the Employment and Labour Relations Court, Court of Appeal and the Supreme Court.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/37/eng@2022-07-08
Application 3 (E008) of 2022,Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others (Application 3 (E008) of 2022) [2022] KESC 25 (KLR) (8 July 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",8 July 2022,2022.0,Nairobi,Civil,Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others,[2022] KESC 25 (KLR)               ,,"Brief facts
The applicant sought a review of a Court of Appeal decision refusing grant of certification and leave to appeal in the Supreme Court on grounds of general public importance. The application was on the basis that the Court of Appeal erred in law in failing to certify matters on whether a court could imply and import the doctrine of trust into land sale transactions and into shareholding of a company as matters of general public importance.","Held
Rule 36(4) of the Supreme Court Rules made it optional to file a notice of appeal either before or after certification in a matter of general public importance. The instant application for review of denial of certification could not be held to be incompetent because it was not preceded by the filing of a notice of appeal.
Rule 12(1) of the Supreme Court Rules, 2020 did not prescribe the order in which physical and electronic documents were to be filed. Rule 14(1) mandated the parties to file the physical documents at the Supreme Court’s registry during working hours specified as 8.30 a.m. to 5.00 pm by rule 10(3). The applicants demonstrated that they were in the registry within the timelines with a view to concluding the filing processes. The applicants made its best efforts to comply with the registration timelines. There was system downtime which was beyond the control of the parties. The applicants were not to be punished for the delay in electronic filing on account of system downtime between uploading and electronic payment of fees that delayed the process for about 20 minutes beyond the working hours, through no fault of theirs.
The applicants were aggrieved by the right to fair trial with the ultimate bearing on the right to own private property among the litigants. The dispute did not end with the vitiation of contracts or the law on the circumstances of resulting or constructive trusts and the lifting of the corporate veil which were settled issues.
The applicants challenged whether it was open to the court to imply and import the doctrine of trust into land sale transactions and into shareholding of a company as to disentitle a registered holder of land or shares, respectively, obtained for valuable consideration, without offending the constitutional right to property under article 40 of the Constitution and other statutory provisions. That was an issue that required the Supreme Court’s intervention and input, as it transcended the applicants, amounted to a substantial point of law determination of which had a significant bearing on the public interest. There was need for the Supreme Court to settle the surrounding jurisprudence as mandated by the Constitution and the Supreme Court Act. The Supreme Court was inclined to review the decision of the Court of Appeal albeit on that limited aspect.
The matter relating to adherence to the procedural timelines before the Court of Appeal was a matter for the Court of Appeal’s consideration in exercise of its jurisdiction and not for the Supreme Court’s consideration and determination.
The court reserved its discretion to grant conservatory relief. Rule 31(2) of the Supreme Courts Rules referred to interlocutory applications, the instant application for review of certification not being such an interlocutory application as contemplated by the said rule.
Application partly allowed.
Orders
The Originating Motion Application dated and filed on April 19, 2022 was allowed to the extent that:
the ruling of the Court of Appeal declining to certify that matter as one of general public importance was set aside.
The applicants were granted leave to appeal to the Supreme Court limited to the following issues which were certified as involving general public importance:
whether a constructive trust could be imported into a land sale agreement to defeat a registered title resulting therefrom; and
whether a constructive trust could be imported into a shareholding of a company as to disentitle a registered holder of shares in a company obtained for valuable consideration.
All activities based on previous orders, that interfered with the status of the suit properties, as identified and as were in issue at the High Court and the Court Appeal, were stayed, pending the hearing and determination of the proposed appeal.
The applicants were to file and serve their appeal within 21 days of the ruling.
Once filed the appeal was to be disposed off on priority basis.
The costs of the application were to abide the determination of the appeal.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/25/eng@2022-07-08
Petition 7 of 2017,Kanyuira v Kenya Airports Authority (Petition 7 of 2017) [2022] KESC 30 (KLR) (17 June 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",17 June 2022,2022.0,Nairobi,Civil,Kanyuira v Kenya Airports Authority,[2022] KESC 30 (KLR)               ,,"Brief facts
The appellant had undertaken to construct 24 maisonettes on land adjacent to Wilson Airport. The appellant secured financing in the sum of Kshs. 67,671,000.00 and began construction.  No sooner had he commenced the construction than the respondent (Kenya Airports Authority (KAA)), in exercise of its powers under the Kenya Airports Authority Act (the KAA Act) issued a cessation order to stop any construction or development on the ground that the suit property fell within the protected aircraft runway protection zone of the Wilson Airport. 
Aggrieved the appellant challenged the cessation order at the High Court via judicial review but the matter was dismissed. Aggrieved by the judgment of the High Court, the appellant filed an appeal at the Court of Appeal which affirmed the finding of the High Court, that the respondent acted within its statutory powers, when it declined to approve the construction of 24 maisonettes by the appellant in a parcel of land adjacent to Wilson Airport, in Nairobi, and; that the respondent’s decision did not amount to compulsory acquisition of the latter’s property to warrant compensation. 
Further aggrieved, the appellant filed the instant appeal. The appellant sought a declaration that his right to property had been violated and sought special damages for loss of earnings, a liquidated sum of Kshs. 992,336,004 which he claimed was loss suffered based on violations of his right to property.","Held
Jurisdiction was everything. Without it, a court had no power to make one more step. In its absence, the court could not do anything but to dismiss the case. Without jurisdiction, the court could not proceed to judgment on the merits; if it did, the result was a nullity.
Appeals from the Court of Appeal lay as of right to the Supreme Court under article 163(4) of the Constitution, if they involved constitutional interpretation and application, or upon certification, by either the Court of Appeal or the instant court, that matters of general public importance were involved. However there was the need to invoke the correct constitutional or statutory provision that clothed it with jurisdiction to entertain any matter before it.
The appellant’s claim had throughout been based on the interpretation and application of the Constitution, specifically that his property rights under article 40 were violated by the cessation order and that he was entitled to compensation under article 23 as read with article 24 of the Constitution. The court had jurisdiction under article 163(4)(a) of the Constitution to determine the appeal.
The trial court in R v. Managing Director, Kenya Airports Authority ex-parte Patrick Thoithi Kanyuira, HC Misc. No. 86 of 2009, was right in drawing the distinction between the causes of action in the two suits. In one the appellant had sought the quashing of the cessation order by certiorari, while the petition before the instant court was for compensation for violation of the appellant’s constitutional rights. The cessation order was properly issued by the KAA. To that extent, that issue was res judicata. It was a decision in rem, confirming that one of the bodies whose authorisation had to be obtained before making any development in the vicinity of the airport was the respondent. The appellant ought to have heeded the caution in the execution of the project on the suit property.
The right to own property and develop it to its full potential was a human right, recognized not only by the Constitution but also by international and regional instruments that Kenya was a party to.
The appellant was the holder of a certificate of title to the suit property issued under the repealed Registration of Titles Act, which by section 23 guaranteed its sanctity by providing that the certificate would be conclusive evidence that the person named as proprietor of the land was the absolute and indefeasible owner, only subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed. The terms of the grant of the title permitted the appellant to construct housing units within six months of issue and the suit property was to be used only for residential purposes.
The KAA Act provided the KAA with the power to enter upon any land to conduct a survey, to remove or cause to be removed any obstruction, materials, structures or buildings, including slaughterhouses which were likely to attract birds that may be hazardous to aircraft operations; to enter upon any land to prevent accidents by; cutting down or removing any tree or other obstruction, not being a building; or executing such other works as may be necessary to prevent the occurrence of any accident or to repair any damage caused as a result of any accident. The KAA or any of its authorized employees could also enter upon any land and alter the position of any pipe, electric, telephone or telegraphic wire after giving reasonable notice. The wide powers exercised by KAA upon private land had the sole aim of making airports adjacent to private land secure and safe.
Section 13(3) of the KAA Act provided that prior approval of the director was a necessary pre-condition and requirement. Only for the purpose of demolition or modification of any building within the proximity of the airport which could pose an aviation risk, was the respondent required to obtain an order of the court. It was precisely because of that that the respondent filed in a suit that sought an order of the court to demolish the structures on the suit property which stood spent after the appellant ingeniously withdrew the suit taking away the forum for hearing of the application.
All the powers vested in the KAA by sections 14, 15 and 16 of the KAA Act were aimed at guaranteeing the safety of aircrafts, vehicles and persons using the aerodrome as well as to prevent danger to the public. There was no logic in the argument that there was no basis for the respondent to stop the construction without evidence of how it would interfere with aviation safety and security.
Prior approval or rejection had to of necessity be based on the independent assessment by the KAA of architectural designs of any proposed construction from which matters like the height of the proposed building could be ascertained. It would be irrational for an investor to put up a building and then seek authorization with the attendant risk of rejection by the authorizing agency.
Since the suit property was adjacent to the airport, it was common factor that the appellant sought approval from the KAA pursuant to the provisions of section 15 of the KAA Act. At no point, in the course of exchanging correspondence did the appellant question the KAA’s authority to control the use of land adjacent to airports.
It was as perplexing as it was disconcerting that the appellant would, after all the exchanges and engagement with the KAA, turn around and claim that the KAA had no role in approving his project and insist that, the Kenya Civil Aviation Authority (KCAA), as the only body, in law from which he required approval, and from which he had in fact obtained such authorization, there was no basis for the KAA to insist on compliance with the cessation order.
It was unfortunate for the appellant to contend that the project having been approved by the then City Council of Nairobi (NCC) and by National Environment Management Authority (NEMA), that he did not require approval from the KAA. By the time the appellant applied to the KAA for approval on January 10, 2008 and even as NEMA gave its approval the appellant had commenced the construction in 2007.
Apart from the KAA, there were other regulatory agencies whose authorization would be necessary and must be obtained before any development could be commenced within the proximity of the aerodrome areas in Kenya, such as the KCAA, NEMA and NCC. It was the approval of each that would give a licence for any proposed development in such areas.
One or two approvals without the concurrence of the other would not do, hence the need for close coordination between all the bodies to avoid anarchy, particularly in such sensitive areas as airports. A disjointed approach would compromise the security and safety of the public.
Section 9 of the repealed Civil Aviation Act which was worded in the same terms as section 56 of the Civil Aviation Act, 2013, provided that despite provisions of any law, or the terms of any deed, grant, lease or license concerning the use and occupation of land, the Cabinet Secretary could, where he considered it to be necessary in the interests of the safety of air navigation, by order published in the Gazette, prohibit the erection within a declared area of any building or structure above a height specified in the order. A declared area was any area adjacent to or in the vicinity of an aerodrome.
In section 10 of the repealed Civil Aviation Act, which was reproduced in section 57 of the Civil Aviation Act, 2013, if the Director-General considered that provisions for civil aviation safety and security or efficiency of air navigation ought to be made, whether by lighting or otherwise for giving aircraft warning of the presence of any building, structure, tree or natural growth or formation on or in the vicinity of an aerodrome; or by the removal or reduction in height of any such obstruction or surface, he or she may by order, and subject to any conditions specified in the order, require or authorise either the owner or occupier of the land on which the obstruction was situated or any person acting on behalf of the Director-General to enter upon the land and carry out such work as was necessary to enable the warning to be given or the obstruction to be reduced in height. Further, the Cabinet Secretary under section 82(2)(x) of the Civil Aviation Act, 2013, could regulate or prohibit in the vicinity of any aerodrome the emission or causing of smoke, soot, ash, grit, dust and any other substance whatsoever which obscured or may obscure visibility.
NEMA was responsible for promoting the integration of environmental considerations into development policies, plans, programmes and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable basis. That in turn ensured the improvement of the quality of human life in Kenya.  The approval had to be obtained prior to commencement of a project. It was the duty of the proponent of a project to undertake an environmental impact assessment study and submit a report for consideration by NEMA.  The approval of a proposed project by NEMA was subject to approval by any other body authorized to do so by any law; and that approval by NEMA was subject to environmental impact of the project.
The County of Nairobi, the predecessor of the NCC, as a local authority had the sole mandate of physical planning in the city. Under the repealed Physical Planning Act, no development within the city could be carried out without a development permission granted by NCC. It was a punishable offence to contravene that requirement. Therefore, any person that intended to carry out any development in the city could only do so after obtaining what the Act termed development permission from the Director of Physical Planning. Before granting permission NCC was required by section 32(2) of the Act to consult several bodies.
Each of the multi-actor regulatory agencies inevitably involved highly-specialized expertise, with different legal mandate and framework. Their mandates could at times overlap or contradict. That was instead of looking at single institutions. One had to map the full and relevant existing legislative spectrum to appreciate their linkage.
The fragmentation of roles between the regulators only went to blur their jurisdictional boundaries, often making it difficult to decipher when the jurisdiction of one regulator ended and that of the other began. To avoid that, the agencies had to develop and maintain synchrony with each other.  Such synergy was created, for instance in section 10(1) of the repealed Civil Aviation Act, where the National Civil Aviation Security Committee responsible for, among other things, co-ordinating security activities between agencies and other organizations, airports and aircraft operators and other entities concerned with or responsible for the implementation of various aspects of the civil aviation security was established. Its membership, appointed by the Minister, included the KAA. Section 32(2) of the repealed Physical Planning Act was another example.
Section 6 of the Physical and Land Use Planning Act, 2019, which repealed the Physical Planning Act established the National Physical and Land Use Planning Consultative Forum, whose functions were, inter alia, to provide a forum for consultation on the national physical and land use development plan; to promote effective co-ordination and integration of physical and land use development planning and sector planning; and to consider national security and advise on strategic physical and land use development projects of national, inter-county, county, or transnational importance.
It was in acknowledgment and appreciation of the need for synergy between the regulating agencies that NEMA gave approvals and that the approval was subject to the appellant complying with all the relevant principal laws, by-laws and guidelines issued for the development of the project by all relevant authorities.
Further evidence showed that the regulatory agencies had to work and that in the instant case they worked in coordination.  An example was a letter by  the respondent in response to the Director General KCAA’s letter explaining to the latter that it had not approved the on-going developments on the suit property for the reason that it lay within the approach funnel of the main runway of Wilson Airport. It was surprising that there would be an approval by KCAA that the appellant was exclusively relying on to continue with the construction in the absence of one from the KAA. The appellant was on a bad and unhelpful frolic. The KAA lawfully and within the remit of the Constitution issued cessation order in issue.
The compensation contemplated by articles 22 and 23 of the Constitution could only be awarded where there was proof that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed, or was threatened.
A claim in public law for the deprivation of fundamental rights and freedoms, compensation could include loss of earnings.  There was nothing in section 33 of the KAA Act that would entitle the appellant to be compensated in the claimed sum of Kshs. 992,336,004. That was because his loss, injury or damage, if any, were as a result of his own subversive actions.
The right to property under article 40 of the Constitution was not an absolute right. In appropriate circumstances it could be limited by the law. The respondent had produced evidence in support of the justification to stop the project pursuant to the KAA Act. The security and safety of flight paths was in public interest which permitted the limitation on enjoyment of the right and freedoms in the Bill of Rights of a private individual.
In determining whether the limitation of a right was justifiable, a court had to consider the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, and the fact that the need for enjoyment of the right by one individual did not prejudice the rights of others.
The respondent’s action did not extinguish the appellant’s ownership rights to the suit property nor did it technically amount to acquisition of the suit property by the respondent. The cessation order only sought to restrict the activities that, in the view of the respondent would compromise aviation safety and security.
Appeal dismissed.
Orders
Costs awarded to the respondent.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/30/eng@2022-06-17
Petition 20 of 2020,Kenya Revenue Authority v Export Trading Company Limited (Petition 20 of 2020) [2022] KESC 31 (KLR) (17 June 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",17 June 2022,2022.0,Nairobi,Civil,Kenya Revenue Authority v Export Trading Company Limited,[2022] KESC 31 (KLR)               ,,"Brief facts
In the years 2008 and 2009, the respondent imported various consignments of rice from Burma, Vietnam, and Thailand. The appellant, the Kenya Revenue Authority, via its Tradex Simba System, an automated tax collection and import clearance system, levied a duty of 35% on the imported rice, which duty, the respondent paid in full.
Subsequently, in 2013, about four years after the initial tax was assessed, demanded, and paid, KRA conducted a post-clearance audit. The audit revealed that the applicable import duty rate on the consignment was 75% and not 35%. KRA attributed the error to human and system errors in undercollecting import duty at the rate of 35%. Subsequently, KRA demanded payment of short levied duty amounting to Kshs. 378,016,680/- as income due from the respondent for rice imported.
Aggrieved, the respondent filed a constitutional petition challenging the appellant’s second demand for tax, where the High Court held that the demand for taxes by the appellant was unreasonable and a breach of the respondent’s right to fair administrative action. Aggrieved by the decision of the High Court, the appellant filed an appeal at the Court of Appeal.  The Court of Appeal upheld the decision of the High Court by finding that the appellant’s actions were irrational, arbitrary, and capricious and holding that the court’s discretion was well exercised.
Further aggrieved, the appellant (KRA) filed the instant appeal in which they sought to overturn the decisions of the Court of Appeal and the High Court on grounds that the courts misapplied the law in finding that its actions were irrational and a breach of fair administrative action. They sought for the Supreme Court to interpret the law as strictly constructed and to hold that legitimate expectation could not operate contrary to statutory provisions and that it was wrong for the Court of Appeal to fail to appreciate that any post-clearance audit would necessarily have follow-up actions.","Held
Section 135(1) of the East African Community Customs Management Act, 2004 (EACCMA) granted the appellant power to conduct a post-clearance audit and demand the short levied duty.  The appellant acted unfairly in demanding the alleged short-levied duty almost 4 years after the initial assessment, and payment of the duty so assessed was irrational and did not accord the respondent its right to fair administrative action.
A person could have a legitimate expectation of being treated in a certain way by an administrative authority even though he had no legal right in private law to receive such treatment. The expectation could arise either from a representation or promise made by authority, including an implied representation, or from consistent past practice. A legitimate expectation arose where a person responsible for making a decision induced in someone a reasonable expectation that he would receive or retain a benefit or advantage.
Legitimate expectations could take many forms. It could take the form of an expectation to succeed in a request placed before the decision maker, or it could take the objective form that a party may legitimately expect that, before a decision that could be prejudicial was taken, one was to be afforded a hearing.
The question of whether a legitimate expectation arose was more than a factual question. It was not merely confined to whether an expectation existed in the mind of an aggrieved party, but whether, viewed objectively, such expectation was, in a legal sense, legitimate.
Legitimate expectation would arise when a body, by representation or by past practice, had aroused an expectation that was within its power to fulfill. For an expectation to be legitimate, therefore, it had to be founded upon a promise or practice by a public authority that was expected to fulfill the expectation. The emerging principles of legitimate expectation were that;
there had to be an express, clear, and unambiguous promise given by a public authority;
the expectation itself had to be reasonable;
the representation had to be one that was competent and lawful for the decision-maker to make; and
there cannot be a legitimate expectation against clear provisions of the law or the Constitution.
A legitimate expectation arose since the appellant failed to collect duty at the applicable rate, having applied the rate of 35% in their Tradex Simba System. It was also incomprehensible how the appellant, four years after the assessment of duty, demanded payment of extra duty when it sat on its laurels having itself assessed the duty payable. That act was unreasonable for the reason that, first, it was irrational and unreasonable to require the respondent to carry the burden of being aware of any mistakes made by the Tradex Simba System, a system run by the appellant. It was also incomprehensible how the respondent should be made to suffer the consequences of the actions of the appellant of failing to input the correct rate in a system it had full control over. That line of reasoning was misguided. It missed the point that judicial review is not concerned with the merits of the case but the decision-making process.
The appellant indicated that the respondent had already paid all taxes due to it. From the record, the respondent had also been categorical that it never mis-declared the country of origin of the rice. Even after declaring that the rice was not imported from Pakistan, the system went on to apply the rate of 35%, after which the respondent paid the relevant duty.
The actions of the appellant in failing to respond to the respondent’s letter seeking clarification on the demanded duty amounted to an expectation that the respondent had paid the correct duty. The expectation was not unreasonable. There was absolute reason given to the respondent to expect that there would not be a further claim for the duty they paid almost four years to the date of importation of the rice.
It was unacceptable that the respondent adopted the view that it did not matter whether there was a misdeclaration, underdeclaration, or system error and that the appellant was entitled to demand any levies discovered following the carrying out of a post-audit at any given time. Anyone who decided anything affecting the right or interest of another person if the person, body, or authority against whom it was claimed exercised a quasi-judicial function that was likely to infringe on their right to fair administrative action was entitled to remedies for judicial review.
Ordinarily, costs followed the event. However, costs should not be used to penalize the losing party but to compensate the successful party for the trouble taken in prosecuting or defending a suit.
An award on costs must be judiciously exercised by invocation of the discretion of the court on a case-by-case basis, and it was the practice that, where suits involved genuine public interest, courts were slow to award costs as against the losing party. Condemning an unsuccessful party to pay costs in genuine public interest litigation can act as a deterrent factor preventing parties from instituting proceedings that benefit the public generally for fear of being condemned to pay costs. The general rule on costs was therefore not immutable, and although deeply entrenched, certain specific circumstances and considerations may necessitate non-application of the principle.
Public bodies and organizations such as parastatals, which ordinarily existed to serve a country’s government by participating in proceedings, acted purely in a regulatory capacity. Such government organizations acting within their mandate need not be condemned to pay costs where such an entity had brought or defended proceedings while acting purely in that regulatory capacity. An award of costs against such entities should only be made where such an entity has acted unreasonably or in bad faith.
Public interest litigation exists to serve the purpose of protecting the rights of the public at large. Therefore, public bodies instituting or defending proceedings were performing their public function, which fell under public interest.
The case raised constitutional issues that were public in nature, and while the appellant may have acted unreasonably, no bad faith had been exhibited, and in the totality of matters, discretion would tilt in its favour. In the circumstances and the public interest, each party was to bear its costs.
Appeal dismissed, decision of the Court of Appeal upheld. 
Orders
Each party was to bear its costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/31/eng@2022-06-17
Petition 43 of 2018,Moi University v Zaippeline & another (Petition 43 of 2018) [2022] KESC 29 (KLR) (17 June 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",17 June 2022,2022.0,Nairobi,Civil,Moi University v Zaippeline & another,[2022] KESC 29 (KLR)               ,," Brief facts
The 1st respondent was admitted to Moi Univesity and was placed at its Central Kenya Campus based at Karatina. At the time of admission at the University, the appellant was a bona fide student of Moi University pursuing a degree of Bachelor of Science (B.Sc).   While conducting his studies, the Central Kenya Campus went through a process of being elevated to a constituent college of Moi University.  Two months before the 1st respondent’s graduation, a charter for the constituent college was granted transforming it into a full-fledged university known as Karatina University (2nd respondent).  
On completion of his studies, the 1st respondent wished to be awarded a degree by the appellant and not by the new and relatively unknown Karatina University, the 2nd respondent. That inevitably led to the litigation before the courts. The High Court held that the 1st respondent was a former student of Karatina University College eligible under paragraph 33 of the charter to be conferred a degree of Karatina University. The court further held that if the 1st respondent had any legitimate expectation to be conferred a degree by the appellant, the same was extinguished by operation of law. 
Aggrieved,  the 1st respondent appealed the decision at the Court of Appeal which allowed the appeal and held that the 1st respondent had no contractual and legal relationship with the 2nd respondent in so far as it related to the award and conferment of its degree to him and that relationship lay with the appellant. The appellate court also held that the doctrine of legitimate expectation was inapplicable to the relationship between the 1st and 2nd respondents and that the appellant could perform the contract between itself and the 1st respondent. 
Aggrieved, the appellant, Moi University, filed the instant appeal. The appeal was on grounds that a university could not award a degree to a student who was no longer registered with it and whom it had neither taught nor examined. ","F. Disposition and Final Orders
79.
In the end, the appeal herein fails with the result that we affirm the decision of the Court of Appeal rendered on April 14, 2015 at Nyeri in Civil Appeal No 54 of 2014 in the following terms:
i.
In the absence of a proper mechanism set out in the transition legislation to specifically address the fate of the students in a Campus of an existing Public University which transforms to a constituent college and eventually granted a Charter to a fully-fledged University, the students who were initially admitted by a University and posted to its Campus remain the students of that University and entitled to be graduated by the said University;
ii.
The degree awarded to the 1st respondent by the 2nd respondent and issued on November 21, 2014 be and is hereby nullified;
iii.
The appellant to award the 1st respondent the degree for which he was admitted to study, was trained on and qualified in;
iv.
There shall be no order as to costs. It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/29/eng@2022-06-17
Application 4 (E010) of 2022,Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly of the Republic of Kenya & 10 others (Application 4 (E010) of 2022) [2022] KESC 34 (KLR) (3 June 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",3 June 2022,2022.0,Nairobi,Civil,Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly of the Republic of Kenya & 10 others,[2022] KESC 34 (KLR)               ,,"1.
Before the Court is a Notice of Motion Application dated on May 25, 2022, and filed on May 27, 2022, under Sections 3, 21 (2) and 24 (1) of the Supreme Court Act, and Rules 28(5) of the Supreme Court Rules, 2020 seeking this Court to review/vary and set-aside a Ruling and Orders issued on May 19, 2022 in Application No. 1 (E002) of 2022; The Senate of the Republic of Kenya & Others vs. The Speaker of the National Assembly & Others allowing the application for stay of the Court of Appeal Judgment.
2.
A brief background is that the 1st to 4th applicants/respondents approached this Court vide Petition No. 19(E027) of 2021 appealing against the entire Judgement of the Court of Appeal (Murgor, Nyamweya & Lesiit JJ. A). Before the main suit could be heard, the 1st to 4th applicants/respondents filed Application No. 1 (E002) of 2022 seeking the following orders:
1.
…
2.
Pending the hearing and determination of this application, an order be issued to stay the execution of order 1, 3 and 9 of the Court of Appeal at Nairobi in civil Appeal No. E084/2021; National Assembly & another v. Senate of Kenya & others pending the hearing and determination of Supreme Court Petition No. 19(E027) of 2021; Senate of Kenya & others v. National Assembly & others.
3.
Pending hearing and determination of Supreme Court Petition No. 19(E027) of 2021; Senate of Kenya & others v. National Assembly & others, an order be issued to stay the execution of order 1, 3 and 9 Court of Appeal at Nairobi in civil Appeal No. E084/2021; National Assembly another & Senate of Kenya & others.
4.
The costs of and incidental to this application abide the result of the said appeal.
3.
Upon considering the application and the submissions in support thereof, this Court rendered its Ruling on May 19, 2022 where we held that:
a.
Pending hearing and determination of Supreme Court Petition No. 19(E027) of 2021; Senate of Kenya & others v. National Assembly & others, an order is issued to stay the execution of order 1, 3 and 9 Court of Appeal at Nairobi in Civil Appeal No. E084/2021; National Assembly another & Senate of Kenya & others.
b.
The costs of this application shall abide the Court’s decision in the appeal.
4.
Dissatisfied with the Ruling, the 1st and 2nd respondents/applicants filed a Notice of Motion Application dated on 25th May 2022, and filed on 27th May 2022, under Sections 3, 21 (2) and 24 (1) of the Supreme Court Act, and Rules 28(5) of the Supreme Court Rules, 2020 seeking this Court to review/vary and set-aside Ruling and Orders issued on 19th May 2022 in Application No. 1 (E002) of 2022.
5.
The 1st and 2nd respondents/applicants submit that this Court has jurisdiction to set aside and/or review its orders of 19th May 2022. In this regard, reliance is placed in the case of Fredrick Otieno Outa vs. Jared Odoyo Okello & 3 Others, SC Petition No. 6 of 2014 [2017] where this Court held that:
‘‘…… in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice’’.
6.
The 1st and 2nd respondents/applicants argued that there was an error apparent on the face of the record on the ground that this Court stated that the application was unopposed while in fact the application was strenuously opposed by the 1st and the 2nd respondents/applicants on the basis that a detailed affidavit sworn by Michael Sialai, the Clerk of the National Assembly on 28th April 2022. It was further argued that in failing to consider the applicants’ opposition to the application, the Court arrived at an erroneous decision.
7.
In addition, 1st and 2nd respondents/applicants argued that the stay orders issued by this Court on May 19, 2022 are prejudicial to them, in that the Court stayed the enforcement of Orders No. 1, 3 and 9 of the Judgment of the Court of Appeal thereby reinstating orders of the High Court which were pegged on an erroneous interpretation of the provisions of Article 110 (3) of the Constitution and holding that it was a condition precedent for a Speaker of one House of Parliament to seek the concurrence of the Speaker of the other House of Parliament on whether a bill concerns counties. It was submitted that following a determination of the Appeal on its merits, the Court of Appeal held that the concurrence process under Article 110 (3) of the Constitution was only applicable to bills concerning counties and not the national government. Therefore, the orders of this Court have the effect of paralyzing the work of the National Assembly as they reinstate the orders of the High Court resulting in cessation of all Bills pending before it, at an interlocutory stage.
8.
The 1st and 2nd respondents/applicants contended that the National Assembly is scheduled to adjourn sine die from June 9, 2022 while the Senate is scheduled to go on recess sine die on June 17, 2022 ahead of the August 2022 General Elections and unless the stay orders are set aside/varied or reviewed, the National Assembly will not be able to discharge its constitutional mandate to process and pass numerous critical Bills currently before it in different stages, including Bills relating to the budgetary circle and touching on the three arms of government, county government and constitutional commissions leading to a constitutional crisis. Some of the critical Bills pending before the National Assembly are: the Appropriation Bill, 2022, the Finance Bill, 2022, the County Allocation Bill of Revenue Bill, 2022, the Public Finance Management (Amendment) Bill, 2022, the Petroleum Products (Taxes and Levies) Amendment Bill, 2022, the Supreme Court (Amendment) Bill, 2022 and the Children Bill, 2022. In conclusion, the 1st and 2nd respondents/applicants submit that the facts of this case satisfy the criteria for grant of the orders for review sought.","9.
Two issues arise for determination in this matter, namely:
i.
Whether this Court has jurisdiction to determine this review application; and if yes
ii.
Whether a case has been made to warrant that review?
10.
Section 21(4) of the Supreme Court Act, 2011 provides as follows:
‘‘Within fourteen days of delivery of its judgment, ruling or order, the Court may, on its own motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order and such correction shall constitute part of the judgment, ruling or order of the Court’’.
11.
Additionally, Section 24(4) of the Supreme Court Act, provides that:
‘‘The judges of the Supreme Court who together have jurisdiction to hear and determine a proceeding may—
a.
discharge or vary an order or direction made or given under subsection (1); or
b.
confirm, modify, or revoke a decision confirmed or modified under subsection (2).’’
12.
This Court settled the question of its jurisdiction to review its own decisions in Fredrick Otieno Outa v Jared Odoyo Okello and 3 Others, Supreme Court Petition No 6 of 2014; [2014] eKLR where it observed that:
‘‘Having reached this Conclusion, based largely on the fact that, neither the Constitution, nor the law, explicitly confers upon the Court, powers to review its decisions, does this render this Court entirely helpless? Aren’t there situations, so grave, and exceptional, that may arise, that without this Court’s intervention, could seriously distort its ability to do justice? Of course, litigation must come to an end. But should litigation come to an end, even in the face of an absurdity? The Supreme Court is the final Court in the land. But most importantly, it is a final Court of justice. This being the case, the Court is clothed with inherent powers which it may invoke, if circumstances so demand, to do justice……
However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice.’’
[Emphasis added]
13.
Flowing from the above, we do find that this Court has jurisdiction to review any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice.
14.
This Court also set the guiding principles for applications for review in the case of Parliamentary Service Commission vs. Martin Wambora & Others, SC. Application No. 8 of 2017 [2018] eKLR as follows:
‘‘(i) A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a Limited Bench of this Court.
ii.
Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court;
iii.
An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application.
iv.
In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically.
v.
During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review…”
15.
Be that as it may, this Court has inherent powers, if called upon application by a party, or on its own motion, review, any of its judgments, rulings or orders, in exceptional circumstances, so as to meet the ends of justice. In this context, it was the applicants’ contention that the stay orders issued by this Court on May 19, 2022 are prejudicial to them, in that the Court stayed the enforcement of Orders No. 1, 3 and 9 of the Judgment of the Court of Appeal thereby reinstating orders of the High Court which were pegged on erroneous interpretation of the provisions of Article 110 (3) of the Constitution and holding that it was a condition precedent for a Speaker of one House of Parliament to seek the concurrence of the Speaker of the other House of Parliament on whether a bill concerns counties.
16.
Furthermore that the National Assembly is scheduled to adjourn sine die from June 9, 2022 while the Senate is scheduled to go on recess sine die on June 17, 2022 ahead of the August 2022 General Elections and unless the stay orders are set aside/varied or reviewed, the National Assembly will not be able to discharge its constitutional mandate to process and pass numerous critical Bills currently before it in different stages, including Bills relating to the budgetary circle and touching on the three arms of government, county government and constitutional commissions leading to a constitutional crisis.
17.
We note the 1st to 4th respondents’/applicants’ opposition to this Application, in which they state that the 1st and 2nd respondents/applicants ought to have filed a response within the timeframe given by the Deputy Registrar and within the parameters of the Rules of this Court. We agree. However, it is also our view that this Court can, in exceptional circumstances, invoke Rule 3(4) and (5) of the Supreme Court Rules, 2020 which state:
“
(4) The Court shall interpret and apply these Rules without undue regard to technicalities and procedure.
(5)
Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders or give directions as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”
18.
Having considered the submissions from all parties, and taking into account the prejudice likely to be suffered by the 1st and 2nd respondents/applicants if the said orders are not reviewed, varied or set aside given the fact that failure to deliberate on some of those Bills might cripple the running of the government, we find that this matter calls for review, variation or setting aside as there would be apparent injustice not only to the applicants but Kenyans as a whole. Consequently, we do find that the application is merited.
Orders
19.
Upon considering the application our final Orders are as follows:
a.
The application for review dated May 25, 2022 is hereby allowed.
b.
The orders of this Court issued on May 19, 2022 staying the execution of order 1, 3 and 9 Court of Appeal at Nairobi in Civil Appeal No. E084/2021; National Assembly another & Senate of Kenya & others is hereby set aside and substituted with an order dismissing the said application No 1 (E002) of 2022.
c.
The costs of this application and also No 1 (E002) 2022 shall abide the Court’s decision in the appeal.
20.
It is so, ordered.",Court issues further directions,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/34/eng@2022-06-03
Motion 15 of 2021,Absa Bank Kenya Plc v Domestic Taxes (Large Taxpayers Office (Motion 15 of 2021) [2022] KESC 13 (KLR) (19 May 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",19 May 2022,2022.0,Nairobi,Civil,Absa Bank Kenya Plc v Domestic Taxes,[2022] KESC 13 (KLR)               ,,"[1]
Upon perusing the Originating Motion dated and filed on 19th November, 2021 brought under the provisions of Rule 33 of the Supreme Court Rule, 2020 seeking a review of the Court of Appeal ruling (Nambuye, Kiage, Mohammed, JJA) declining to certify the Applicant’s intended appeal to this Court as one involving a matter of general public importance; and
[2]
Upon reading the applicant’s supporting affidavit sworn by Peter Mungai on 19th November, 2021 and the applicant’s supplementary affidavit undated but filed on 17th December, 2021 wherein it is averred that the finding in Nairobi Civil Appeal No. 195 of 2017 (Karanja, M’Inoti & Sichale, JJ. A) that interchange fees were management and professional fees and liable to be charged withholding tax and that transaction fees paid by the applicant to card companies constitute royalties and subject to withholding tax is of great public importance as is affects the entire banking industry since banks will have no incentive to issue debit and credit cards if the interchange fees are liable to withholding tax; and that card companies will also be discouraged to issue cards since the cost of card transactions shall increase and framed the issues of public importance as follows:
(a)
The consequence of the decision is that it affects the entire banking industry. All banks in Kenya and internationally issue credit and debit cards and in the event that interchange is subjected to withholding tax, the said banks will have no incentive to issue cards. Following the Court of Appeal’s refusal to certify the matter as one of general public importance, the respondent has sent demands to banks specifically quoting the Court of Appeal’s decision and demanding payment of tax.
(b)
The decision also negatively impacts the card companies who operate the networks that enable payments through the use of credit and debit cards as it increases the cost of card transactions thus discouraging the issuance of use of cards.
(c)
Debit and credit cards are cashless, safe, reliable, convenient and a secure way of making payments.
(d)
In the event that banks in Kenya stop issuing cards, this will negatively impact the more than 11 million individual and institutional members of the Kenyan public who use credit and debit cards. It will also have a catastrophic impact on the Kenyan businesses that accept payment by cards.
(e)
Credit and debit cards provide a secure, efficient and accountable means of effecting payments not only in Kenya but also for members of the Kenyan public who travel abroad. Cards are also utilized by members of the Kenyan public who make online purchases. If cards are no longer accessible as a result of the imposition of tax that has no basis in law or fact, Kenyans will have to carry cash when travelling abroad and will not be able to undertake online purchases.
(f)
The tourism sector in Kenya relies on payments by tourists who use debit and credit cards. The sector is a cornerstone of the Kenyan economy employing millions of Kenyans whose livelihood will be impacted in the event that tourists are unable to utilize their debit or credit cards in Kenya.
(g)
The Court of Appeal judgment thus impacts the card payment system both locally and internationally thereby negating the Government of Kenya’s agenda on ease of doing business as well as promoting tourism.
(h)
Discouraging card transactions for payments in effect imposes a purely cash economy which has been shown to be inimical to public health in light of the domestic and international combat against Covid-19.
(i)
The effect of the Court of Appeal judgment is to give the Court the blanket right to re-write the agreements of contracting parties so as to impose tax. It is a cardinal principal of law that the Courts have no jurisdiction to re-write and impose new contractual news. This is a fundamental principal of law which if breached would have an adverse effect on all commercial transactions.
(j)
The effect of the Court of Appeal judgement is to give the respondent the right to raise tax demands that lack clarity by merely claiming that a payment is ‘management or professional fees’ without specifying the category indicating that a particular transaction falls as required by law.
(k)
The effect of the Court of Appeal judgment is to create uncertainty and unpredictability in business transactions vis a vis taxation. For a business to operate within tax system, it requires certainty and predictability which enables the business to arrange its tax affairs.
(i)
The uncertainty created by the judgment will erode the confidence of Kenyan businesses and foreign investors which will have a devastating effect on the Kenyan economy; and
[3]
Upon considering the applicant’s written submissions dated 24th February, 2022 wherein it is further contended that the decision in Nairobi Civil Appeal No. 195 of 2017 (Karanja, M’Inoti & Sichale, JJ. A) has a direct impact on all banks and consequently the members of the public who are members of the banks; that the decision transcends the circumstances of the intended appeal between the applicant and the respondent and that the dispute between the parties does not simply arise from disputed facts but that there are questions of law to be decided that will impact the public; and
[4]
Upon Reading the respondent’s replying affidavit sworn on 9th December, 2021 by Philip Munyao and the written submissions dated 5th January, 2022 and filed on 6th January, 2022 in which it was deponed that the matter is not one of general public importance, raises no novel issues and that the facts involved everyday issues of computation and assessment of tax peculiar only to the applicant and respondent;
[5]
And which facts it was argued, had no significant bearing on public interest and failed to transcend the circumstances of the case requiring the same to merit this Court’s appellate jurisdiction and citing the principles set out in Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone, SC Application No.4 of 2012; [2013] eKLR and in Malcolm Bell v. Daniel Toroitich Arap Moi & another, SC Application No.1 of 2013; [2013] eKLR (Malcolm Bell Case); and
[6]
Noting from the record that the applicant further filed an amended originating motion dated 19th November, 2021 and filed on 3rd December, 2021 premised on the provisions of articles 163(4) (b), 163(5) and 210(1) of the Constitution, sections 16(1) and (2) of this Court’s Act and Rule 33(3) of this Court’s Rules seeking determination of the questions:
(a)
Whether the Court of Appeal erred in declining certification of the applicant’s intended appeal to this Court.
(b)
Whether the applicant’s intended appeal transcends the issues between the applicant and the respondent and raises matters of substantial general public importance
(c)
Whether the applicant’s intended appeal raises serious issues of law that are of general public importance and
(d)
Whether the imposition of withholding tax on a payment that is not a royalty and a payment that is not for management or professional services as defined in the Income Tax is a violation of article 210(1) of the Constitution of Kenya; and
[7]
Further Noting the submissions by the respondent opposing the amended originating motion being properly on record for failing to seek leave of this Court, introducing new issues of fact and for failing to follow the relevant rules on amendment without seeking leave as was pronounced by this Court in Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 others, SC Petition No.12 of 2013; [2014] eKLR (Mumo Matemu Case).","[8]
In the above context, We Now Opine as follows:
i
Before we review the issue of certification, it is prudent that we address the contention raised by the respondent on whether the amended originating motion filed without leave of the Court is properly before us.
We take note of the respondent’s submissions that the amended originating motion filed by the applicant was done so without leave of this Court. Under Rule 33(1) of this Court’s Rules, a party aggrieved with the finding of the Court of Appeal certifying or declining to certify a matter as one of general public importance may apply to this Court for review within fourteen days. The originating motion dated 19th November, 2021 was filed within 14 days of the date of delivery of the ruling by the appellate Court on 5th November, 2021. We are cognizant of the provisions of Rule 17(1) of this Court’s Rules that provides that:
""A party may only file further pleadings or affidavits with the leave of the Court, and with the consent of the other party.”
ii.
This means that any subsequent filing of any motion after 19th November, 2021 required leave of the Court. No such leave was ever sought and/or granted. It is not in contention that the amended originating motion was filed 14 days after the date of delivery of the ruling by the appellate Court. Accordingly, the application had to be filed with leave of this Court. We are cognizant that there is no application and/or prayer before us by the applicant seeking leave to file its amended originating motion. Hence, we find and hold that the amended originating motion having been filed on 3rd December, 2021, without leave of the Court, is fatally defective. The upshot is that we hereby strike out the amended originating motion dated 1st December, 2021 and filed on 3rd December, 2021.
iii.
Having so said and turning to the merit of the substantive application that is properly before us, at the core of the finding of the appellate Court was that withholding tax is payable by a bank for payments it has made to credit card companies and to other banks that issue credit cards. This finding is the backbone of the questions the applicant submits transcends the parties-cases and constitutes a matter of general public importance. As such, it is argued that whether such taxes are liable to be paid by banks transcends beyond the parties as it entitles the respondent to demand for such payments from all banks, creating a rippling effect that foresees an increase in charges to be borne by consumers of debit/credit cards should banks be required to pay such taxes.
iv.
We have specifically weighed this application against the principles set out in Hermanus and we note that the applicant has to demonstrate satisfactorily that there is a legal question, the subject matter of which transcends the present litigation. The principles to be considered are well set where it was stated:
“Before this Court, ’a matter of general public importance’ warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and consequences are substantial, broad-based, transcending the litigation-interests of the parties, and bearing upon the public interest. As the categories constituting the public interest are not closed, the burden falls on the intending appellant to demonstrate that the matter in question carries specific elements of real public interest and concern.”
v.
As regards the substantive issues before the Court of Appeal, while the appellate Court rightfully considered the matter within the principles set out in Malcolm Bell, there is a further principle that is applicable in the matter as was set down by this Court in Town Council of Awendo v. Nelson Oduor Onyango & 13 others, SC Misc Application No 49 of 2014;[2015] eKLR where it was held:
""[35] From the content of paragraphs 32 and 34, it emerges that while this Court did, in the Hermanus Phillipus Steyn and Malcolm Bell cases, set out an elaborate set of criteria for ascertaining “matters of general public importance” for the purpose of engaging the Court’s jurisdiction, a further criterion has arisen. It may be thus stated. Issues of controversy that emerge from transitional political-economic-social-cum-legal factors, with impacts on current rights and entitlements of suitors, or on public access to common utilities and services, will merit a place in the category of “matters of general public importance.” [Emphasis supplied]
vi.
Having so pointed out, on our part, we note that the issues raised are not frivolous and indeed transcend the specific circumstances of the parties before us. The question of whether such payments made by banks to card companies constitute royalties and whether interchange fees paid by banks are classified as management or professional fees liable to taxation and subject to withholding tax is an important one within the banking industry.
[9]
Having therefore considered the application, we make the following Orders:
(a)
The Originating Motion dated and filed on 19th November, 2021 is hereby allowed.
(b)
Parties shall bear their respective costs.
[10]
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/13/eng@2022-05-19
Petition 18 (E025) of 2021,Commission v Oduor & 4 others (Petition 18 (E025) of 2021) [2022] KESC 10 (KLR) (Civ) (19 May 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",19 May 2022,2022.0,Nairobi,Civil,Commission v Oduor & 4 others,[2022] KESC 10 (KLR)               ,,"[1]
Upon perusing the Notice of Motion dated 28th January, 2022 and filed on 21st February, 2022 for stay of execution against the Judgment and Orders of the Court of Appeal of 22nd October, 2021 in consolidated Civil Appeals No. 457, 458, 466 and 475 of 2018 and that the Court be pleased to extend time within which the applicant can file the sealed Order arising from the Court of Appeal Judgment, which application is predicated on the provisions of Articles 1, 2, 159, 163,258 and 259 of the Constitution and Rules 3, 15 and 32 of the Supreme Court Rules, 2020; and
[2]
Upon reading the applicant’s supporting affidavit sworn by Anne Amadi on 31st January, 2022; and
[3]
Upon considering the written submissions by the applicant dated 11th February, 2022 and filed on 21st February, 2022 wherein it is urged that the applicant has met the threshold for the grant of stay of execution by presenting an arguable appeal with high chances of success; that the intended appeal is not frivolous as it raises issues for determination; that the appeal will be rendered nugatory should stay not be granted and that it is in public interest that the stay orders be granted relying in the findings by this Court in Mary Wambui Munene v. Peter Gichuki Kingara & 2 others, SC Application No. 12 of 2014; [2014] eKLR and Lemanken Aramat v Harun Meitamei Lempanka & 2 others, SC Civil Application No. 8 of 2014; [2014] eKLR; and
[4]
Upon reading the 1st, 2nd and 3rd respondent’s replying affidavit sworn by the 3rd respondent on behalf of the respondents dated 15th March, 2022 and written submissions of even date wherein it is contended that the application fails to meet the threshold for grant of stay of execution; and
[5]
Further Noting the written submissions by the 4th respondent dated 17th March, 2022 and filed on 7th April, 2022 opposing the application and submitting that the intended appeal is not arguable, that the appeal will not be rendered nugatory, that there is no likelihood of a constitutional crisis should stay not be granted and that the applicants stands to suffer no damage, prejudice, irreparable loss or suffering if stay is not granted.","6.
We now opine as follows:
i.
The principles for grant of orders for stay were enunciated in Board of Governors, Moi High School, Kabarak & Another v Malcolm Bell, Sup. Ct. Civil Applications Nos.12 and 13 of 2012; [2013] eKLR, the principle objective being to preserve the subject matter of an appeal. The principles were also well established by this Court in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others, Sup. Ct. Application No.5 of 2014; [2014] eKLR, (Gatirau Munya Case). Those principles require that an applicant must satisfy the Court that the intended appeal is arguable and not frivolous and that unless the stay order sought is granted, the appeal or intended appeal would be rendered nugatory.
ii.
Applying this to the facts, there is no doubt that the applicant’s intended appeal is arguable as the applicant seeks to challenge the manner in which the majority in the Court of Appeal arrived at its decision that Section 23(2) of the Sixth Schedule to { the Constitution}} does not oust the jurisdiction of the High Court to review the decisions of the Judges and Magistrates Vetting Board. The issues raised therefore touch on the jurisdiction of the High Court to determine the respondents’ petitions. We find this issue to be pertinent and properly before this Court for determination. As for the consideration on whether the appeal will be rendered nugatory, the applicant is apprehensive that there is a high likelihood that the 1st, 2nd, 3rd and 4th respondents may enforce the Court of Appeal order by re-engaging the Judiciary and seek to draw all previous benefits. In our view, such apprehension is valid and we are of the opinion that the appeal will be rendered nugatory if stay is not granted.
iii.
Turning to the prayer for extension of time, it is trite that this Court has jurisdiction to extend time, which exercise of such jurisdiction being an issue of judicial discretion. Rule 15(2) of the Supreme Court Rules, 2020 is instructive on this. It is our finding that the request for extension of time is merited and warrants exercise of our judicial discretion as the applicant has satisfied the principles set out in Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 7 others, SC Application No.16 of 2014; [2014] eKLR on extension of time by this Court.
7.
Having therefore considered the application, we make the following Orders:
(i)
The execution of the decision of the Court of Appeal (Okwengu, Kiage & Kantai, JJ. A) in consolidated Civil Appeal Nos. 457, 458, 466 and 475 of 2018 delivered on 22nd October, 2021 be and is hereby stayed pending the hearing and determination of the appeal.
(ii)
The applicant is granted time to file the sealed Order arising from the Court of Appeal Judgment which time is hereby enlarged for a further seven (7) days from the date of this Ruling.
(iii)
The Application dated 28th January, 2022 is hereby allowed in the above terms.
(iv)
Each party shall bear its costs of the Application.
8.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/10/eng@2022-05-19
Petition 4 (E005) of 2022,Dande & 3 others v Director of Public Prosecutions & 2 others (Petition 4 (E005) of 2022) [2022] KESC 23 (KLR) (19 May 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",19 May 2022,2022.0,Nairobi,Criminal,Dande & 3 others v Director of Public Prosecutions & 2 others,[2022] KESC 23 (KLR)               ,,"Brief facts
The applicants filed the instant application praying that pending the hearing and determination of Petition No. 4 of 2022, a conservatory order be granted staying the criminal proceedings in Nairobi Chief Magistrates Criminal Case No. 1735 of 2016 Republic v Edwin Harold Dayan Dande & 3 Others. The applicants submitted that; the court had jurisdiction to grant interlocutory reliefs pending the hearing and determination of the appeal; they had an arguable case with a high probability of success; the 1st respondent, in abuse of his prosecutorial powers had instituted charges against them contrary to article 157 of the Constitution of Kenya, 2010 (Constitution); and that unless the criminal proceedings before the subordinate court were stayed, the intended appeal would be rendered nugatory.","Held
1. At the Court of Appeal, the applicants only challenged the exercise of prosecutorial powers of the 1st respondent under article 157 of the Constitution. Being that the appeal before the Court of Appeal and its determination dealt squarely with the interpretation of article 157, the appeal was properly before the court in terms of article 163(4)(a) of the Constitution. 
2. The court’s jurisdiction to grant interlocutory orders of stay of proceedings was derived from section 21(2) of the Supreme Court Act which provided that in any proceedings, the Supreme Court could make any ancillary or interlocutory orders, including any orders as to costs that it thought fit to award. Rule 5(2)(a) of the Court of Appeal Rules provided that the consideration was that the applicant could only apply for stay of criminal proceedings upon conviction and sentence either by the subordinate court, or by the High Court. 
3. An order for stay of criminal proceedings was not granted as a matter of course but upon the sparing exercise of judicial discretion and only in the most exceptional of circumstances. 
4. An order of stay would be granted in the following instances; 
the appeal or intended appeal was arguable and not frivolous;
unless the order of stay sought was granted, the appeal or intended appeal, were it eventually to succeed, would be rendered nugatory; and
it was in the public interest that the order of stay be granted.
5. An arguable appeal was not one that had to necessarily succeed, but was simply one that was deserving of the court’s consideration; what had to be avoided was to render the appeal, if successful, nugatory or an academic exercise. The court, in exercising its discretion, balanced between the lower and the higher risks of injustice and no definitive conclusions ought to be made as that could only be in the appeal and not in an application for stay. 
6. Under article 163(4) of the Constitution and sections 15, 16 and 17 of the Supreme Court Act, only an appeal from the Court of Appeal could be entertained by the Supreme Court, as of right, if it involved the interpretation or application of the Constitution or where it was certified that a matter of general public importance was involved. 
7. It was fairly elementary that the court could only grant an order of stay of a decree or order of the Court of Appeal or stay of further proceedings in the Court of Appeal but not of proceedings pending hearing in the Magistrate’s Court, as sought in the instant application. Reference to any other court or tribunal as prescribed by national legislation in article 163(3)(b)(ii) was definitely not reference to the Magistrate’s Court. 
8. The petition filed by the applicants on March 11, 2022 only challenged the decision of the Court of Appeal and not that of the Magistrate’s Court. As a matter of fact, no decision was made by the latter to warrant any challenge in the High Court. 
9. Pre-trial directions in the instant matter were issued by the Deputy Registrar on March 11, 2022, therein, the respondent was to be served with the application and was in turn to file a response within 7 days. Unfortunately, parties in defiance of the directions, and after being issued with the ruling notice on May 4, 2022, continued to file responses up to the eleventh hour including as late as May 11, 2022. That practice was irregular and unacceptable. The court did not take into consideration in the instant ruling, submissions irregularly filed. 
Application dismissed.
Orders
1st and 3rd respondents to have costs of the application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/23/eng@2022-05-19
Petition 8 (E010) of 2021,Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2022] KESC 24 (KLR) (Civ) (19 May 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",19 May 2022,2022.0,Nairobi,Civil,Dina Management Limited v County Government of Mombasa & 5 others,[2022] KESC 24 (KLR)               ,,"1.
Upon perusing the Notice of Motion taken out by the Petitioner/Applicant on 21st October, 2021 and filed on 3rd November, 2021, pursuant to Section 3 of the Supreme Court Act, Rule 17(1), (2) & (3) as well as Rule 36 of the Supreme Court Rules to be granted leave to file a supplementary record, namely, the stamped and signed Notice of Appeal; and
2.
Upon perusing the affidavit sworn by Dennis Nkarichia, an advocate in the law firm of Mohammed Muigai LLP, on 21st October, 2021 in support of the Motion; and
3.
Upon considering the written submissions by the Petitioner/Applicant dated 27th October, 2021 filed on 3rd November, 2021, wherein the Petitioner/Applicant explains that the Record of Appeal was filed without a signed and stamped copy of the Notice of Appeal; that the delay in filing the Notice of Appeal was occasioned by the delay of the Court of Appeal registry in supplying a signed and stamped copy of the said Notice of Appeal, although they had timeously electronically filed it on 17th June, 2021 in accordance with the Covid-19 Practice Directions on Electronic Case Management; and that the Petitioner/Applicant had made follow up with Court Registry without luck; and
4.
Noting that the 1st Respondent in its relying affidavit and written submissions of 2nd November, 2022, is opposed to the application urging that the Petitioner/Applicant has not invoked Rule 15(2) to seek extension of time to file a Notice of Appeal as they ought to have; that it was the duty of the Petitioner/Applicant to scan and forward duly stamped and signed copies of the Notice of Appeal but failed to do so; that the Petitioner/Applicant has not provided evidence to show that the unsigned Notice of Appeal was lodged at the Court of Appeal registry; further that the Notice of Appeal on record was served outside the seven days of lodgement contrary to Rule 37, which issue has been raised by the 1st Respondent as a ground of objection to the appeal; and that, as a result, there is no valid Notice of Appeal; and
5.
Further noting that the 2nd to 6th Respondents in their written submissions dated 9th December, 2021 filed on 10th of December, 2021, are not opposed to this application urging that the Notice of Appeal is an integral document of the Record of Appeal, that it is mandatory for a party intending to file an appeal to file one within 14 days of the date of the judgment appealed against; that the Petitioner/Applicant, having complied by electronically filing the notice within time, the delay in filing a stamped Notice of Appeal was not fatal; and that, in any case, the delay was occasioned by the Court of Appeal registry and not the Petitioner/Applicant;","We now therefore opine as follows:
6.
Having noted that the impugned Judgment was rendered on 4th June, 2021, the applicant proceeded to electronically file its Notice of Appeal on 17th June, 2021, within the time limited by Rule 36(1) of the Supreme Court Rules; and that subsequent to this, the Record of Appeal was duly instituted on 19th July, 2021, again within 30 days of filing the Notice of Appeal as prescribed in Rule 38; and
7.
Acknowledging that by the provisions of Rule 12(1) of the Supreme Court Rules, pleadings and any other document filed in the Court must be in both printed and electronic form, as explained in the case of Kenya Hotel Properties Limited v. Attorney General & 5 others; Application No. 2 of 2021 (E004 of 2021); [2021] eKLR; and
8.
Satisfied therefore that the electronic Notice of Appeal was timeously lodged in the Court of Appeal strictly in accordance with Direction 8(3) aforesaid and subsequently filed in this Court within the time set, we find that it is properly on record and reject the objection by the 1st respondent, being satisfied that it was electronically served on 17th June, 2021 which was the same day that the Notice of Appeal was filed.
9.
Because the award of costs is discretionary as the Court explained in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, no party, in the instant case, is at fault hence we make no orders as to costs.
10.
In the circumstances, we allow this application and make the following orders;
a
a. The Application dated 21st October, 2021, and filed on the 3rd November, 2021 is hereby allowed.
b.
There shall be no orders as to costs.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/24/eng@2022-05-19
Motion 17 (E025) of 2021,Gitamaiyu Trading Co. Ltd v Nyakinyua Mugumo Kiambaa Co. Ltd & 10 others (Motion 17 (E025) of 2021) [2022] KESC 14 (KLR) (19 May 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",19 May 2022,2022.0,Nairobi,Civil,Gitamaiyu Trading Co. Ltd v Nyakinyua Mugumo Kiambaa Co. Ltd & 10 others,[2022] KESC 14 (KLR)               ,,"1.
Upon perusing the Originating Motion application dated 16th December 2021 and filed on 20th December 2021 by the Applicant, pursuant to Article 163(4)(b) of the Constitution, sections 15, 16 and 17 of the Supreme Court Act, Rule 33 of the Supreme Court Rules, 2012 (sic) and any other enabling provisions of the law seeking to review the refusal by the Court of Appeal (Karanja, Okwengu and Kantai, JJA) to certify that the intended appeal raises matters of general public importance;
2.
Upon perusing the affidavit sworn on 16th December 2021 by Joseph Kamau Kiburu, a director of the applicant, in support of the motion and the grounds on the face of the application: that the intended appeal involves matters of general public importance and that a substantial miscarriage of justice may occur unless the intended appeal is heard;
3.
Upon considering the applicant’s written submissions filed on 20th December 2021 in which, guided by the provisions of Article 163(4)(b) of the Constitution and the principles set out in Hermanus Phillipus Steyn v Giovanni Gnecchi – Ruscone SC Application No. 4 of 2012 [2013]eKLR, the applicant avers that the intended appeal to this Court raises matters of general public importance and in particular on the following three issues:
a.
The upholding by the Court of Appeal that the suit premises was agricultural land in the absence of any evidence transcends the present litigants. That courts should not proceed on the assumption that all property within the general vicinity of Kiambu is agricultural land requiring Land Control Board consent to validate the agreement.
b.
Whether the owner of land can move the registrar to remove a caution without involving the person who procured the registration of the caution. In this case, the Court of Appeal held that simply because Fanros Limited applied for removal of caveat, and on the assumption that the applicant did not have any enforceable right to the suit premises, its removal was proper in law.
c.
Having the backing of a “powerful politician” who managed to get a waiver on stamp duty and consent, can the Registrar of Lands register a deed of Transfer of Land and issue a title when the transfer deed is not executed by the Vendor? That by upholding the said transfer, the Court of Appeal has set a dangerous precedent that can be applied to bind all the courts below it to uphold registration or even compel Registrars of Lands to register deeds that are not executed by the vendor or land owner. That this transcends the litigants and has a direct bearing on future land transactions by the general public and future interpretation of section 3(3) of the Law of Contract Act.
4.
And Upon taking into Consideration the directions issued by the Hon. Deputy Registrar of the Court on 28th December 2021, the applicant was to serve the respondents with the application and the written submissions upon which the respondents were to file their written submissions within seven days. The filing was to be done both electronically and by way of hard copies.
5.
Upon noting that no submissions had been filed by any of the respondents whether physically or electronically;
6.
We have considered the background of the case as stated by the applicant, which is a public limited company with more than 1,000 members and that it purchased 16 parcels of land comprised in LR No.89/4-9 and 11-20 measuring approximately 512 acres from M/s Fanros Limited in 1977, paid the purchase price and took possession of the suit premises. In 1979, the applicant was evicted by the provincial administration and embarked on a process to recover the said premises and obtain a transfer in its favour. It is during the intervening period that the 1st respondent, Nyakinyua Mugumo Kiambaa Co. Ltd, obtained a transfer to itself. That the applicant filed suit in the High Court being HCCC No.4496 of 1994 seeking declarations that it was the legal owner of the property either as purchaser or by adverse possession; that the transfer to the 1st respondent was null and void on account of fraud, injunction and general damages. The suit was dismissed by Muchelule J, in his judgment delivered on 13/2/2012. The applicant lodged an appeal being Civil Appeal No.84 of 2013. By a judgment delivered on 8/2/2019 (Ouko(P), Makhandia & Musinga JJA) the appeal was dismissed. The applicant’s application seeking the grant of certification and leave to appeal to this Court was dismissed prompting the present application.","7.
In the above context, we opine as follows:
a.
The learned Judges of Appeal thoroughly considered the judgment by the Court of Appeal in relation to the applicant’s grievance against the decision by the High Court. The onus remains on the applicant to satisfy that the Court of Appeal did not adhere to the principles set out in Hermanus Phillipus Steyn case which both the applicant and the Court of Appeal rightly appreciated was applicable to the matter at hand.
b.
The Court of Appeal in its ruling addressed itself to the three issues raised by the applicant. On the first issue relating to the assumption on the land being agricultural land, we note that the appellate court, rightly so, noted that the issue is specific to the land in question and does not transcend beyond the specific litigants. Whether a given parcel of land is agricultural or not is in our view a matter of fact that can be addressed as and when the situation arises and cannot be addressed by the Supreme Court generally. The applicant has not placed any specific matter that calls for this Court’s intervention beyond stating that the court may proceed on assumptions.
c.
On the second issue relating to the removal of the caveat, the Court of Appeal in its impugned ruling found that it is a mundane issue spelt out in the relevant laws. This finding resonates well with our position. The applicant had the option of challenging the removal of caveat as he did before the Court. The mere fact that the applicant disagrees with the decision of the Court does not, in and of itself warrant the appeal to this Court in the proposed manner.
d.
As for the third issue relating to the role of a “powerful politician” in obtaining a waiver of consent of the Land Control Board and the indenture not being signed, the appellate court found that this was peculiar to the specific transaction at hand.
e.
Beyond the context of the three issues framed and addressed above, the applicant did not buttress the argument that there will be a miscarriage of justice. The applicant merely stated that it is a public limited company with more than 1,000 members. The number of members of the applicant, does not in and of itself satisfy the public interest threshold as public interest must be demonstrated in the effect of the decision beyond the applicant and the respondents. In Town Council of Awendo v Nelson Oduor Onyango & 13 others SC Misc. Application No.49 of 2014 [2015]eKLR we stated that:
“[32].
A due consideration and determination of these issues traverses the interests of the respondents, and affects third persons, as well as the public at large. It has been demonstrated that the resolution of the questions of law raised in this case will have a significant bearing on the public interest. These questions of law arose in other superior Courts, and were the subject of those Courts’ determination and, as such, beckon the exercise of this Court’s final, appellate jurisdiction
f.
There is no compelling reason to disturb the finding by the appellate court that the identified issues do not raise any novel issues that have not been determined before nor is there in existence conflicting decisions arising from similar situations which require this Court to address
8.
Consequently, having made the foregoing determinations, we make the following orders:
i.
The Originating Motion Application dated 16th December 2021 and filed on 20th December 2021 is hereby disallowed for lack of merit.
ii.
There shall be no order as to costs.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/14/eng@2022-05-19
Petition 9 (E011) of 2021,Kangara v Mayaka; Initiative for Strategic Litigation In Africa (Amicus Curiae) ((Being an application by Initiative for Strategic Litigation to be enjoined as Amicus Curiae)) (Petition 9 (E011) of 2021) [2022] KESC 15 (KLR) (19 May 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",19 May 2022,2022.0,Nairobi,Civil,Kangara v Mayaka; Initiative for Strategic Litigation In Africa,[2022] KESC 15 (KLR)               ,,"1.
Upon perusing the Notice of Motion application by the Applicant, Initiative for Strategic Litigation in Africa dated 17th January, 2022 brought under the provisions of Rule 19, 31 and 32 of the Supreme Court Rules, 2020 and the supporting affidavit sworn by the applicant seeking leave of the Court to appear as amicus curiae in the appeal and to present written and oral submissions by way of an amicus brief and;
2.
Upon considering the applicant’s grounds in support of its application, its intended amicus brief and the applicant’s written submissions dated 17th January, 2022 and filed on 20th January, 2022 where the applicant submits that it has the relevant expertise being a regional non-government organization which works within the African human rights system to advance the rights of women during and at the dissolution of marriage and also running a program that focuses the development of family law and contends that they intend to assist the Court in determining the legal basis for the protection of cohabitation relationships and the division of property upon dissolution of family forming unions and particularly in cohabitation relationships, unrecognized marriages or other unregistered unions that will aid the Court in:
a.
Appreciating the Kenyan legal framework for the recognition of cohabiting relationship;
b.
Determining the basis of the legal protection that the State should accord to all families, include those arising out of cohabitation or otherwise unrecognised marriages. This would protect families despite the manner in which they are formed and affirm that members of such families have rights during and at dissolution;
c.
Demonstrate the international human rights standards and comparative perspectives of the state to extend the principle of equitable sharing of property to property acquired in intimate relationships;
d.
Highlight the application of the right to equality and the gendered impact of division of property in different intimate relationships and;
3.
Upon further arguments by the applicant that this Court under Rule 19(1) of the Supreme Court Rules, 2020 allows for participation of amicus curiae in proceedings if the applicant’s expertise is proven, demonstrated the independence and impartiality of the person and public interest and pointed out the relevant fundamental principles as was determined in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Sup. Ct. Petition No.12 of 2013; [2014] eKLR (Mumo Matemu Case);
4.
And further considering the submissions by the respondent opposing the joinder of the applicant as amicus by submitting that this Court should not exercise its inherent discretionary power to admit the amicus for failure to meet the principles in Mumo Matemu as the intended amicus has failed to demonstrate independence and impartiality and that should the intended amicus be admitted as a friend of the court, their involvement should be confined to the issues before the Court and the material aiding the Court in its determination as was held in Francis Karioki Muruatetu & another v. Republic & 5 others, Sup Ct. Petition Nos. 15 and 16 of 2015; [2016] eKLR (Muruatetu Case) to prevent the intended amicus from overshadowing the participation of the main parties and;","5.
In the above context, We now opine as follows:
i.
An applicant seeking joinder as amicus has to satisfy this Court that they have satisfied the legal requirements for joinder. The relevant law is Rulen 19 of the Supreme Court Rules, 2020. The said Rule provides as follows:
“
19.
(1)
The Court may on its own motion, or at the request of any party, permit a person with particular expertise to appear in any matter as a friend of the Court. Participation of friends of the Court.
2.
The Court shall before admitting a person as a friend of the court, consider—
a.
proven expertise of the person;
b.
independence and impartiality of the person; or
c.
the public interest.”
ii.
The guiding principles applicable in determining an application to be enjoined in that capacity were settled in Mumo Matemu where the Court, pronounced itself on its inherent power to admit amicus curiae and emphasized that for one to be admitted as amicus curiae, one has to demonstrate their expertise in the subject matter before Court and how they will enrich and help the Court to reach a just determination with the Court giving the guiding principles for admission as amicus curiae as:
“
(i) An amicus brief should be limited to legal arguments.
“(ii) The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
“(iii) An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tends to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay. The Court may, therefore, and on a case-by-case basis, reject amicus briefs that do not comply with this principle.
“(iv) An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law…
(vi) Where, in adversarial proceedings, parties allege that a proposed amicus curiae is biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appears to be partisan on an issue before the Court, the Court will consider such an objection by allowing the respective parties to be heard on the issue...”
We also affirmed the above guiding principles in Muruatetu.
iii.
The role of amicus in Court is to aid the Court to arrive at a determination based on the law. We take note that the applicant wishes to address the legal framework for the recognition of cohabiting relationships by providing a comparative analysis of other jurisdictions case law and statutes on the steps taken to recognize and protect the interests of parties in cohabiting relationships. There is no doubt that the applicant has substantial knowledge and experience in family law matters. The essence of the dispute turns around property acquired during cohabitation in a marriage not recognized by law and whether proceedings on the sharing of property acquired under such unions may be brought under the Married Women’s Property Act. We perceive from the applicant’s amicus brief that its submissions will be of valuable assistance to this Court in addressing this issue and the applicant has demonstrated expertise in its field relevant to this Court. We therefore find that the Applicant has met the criteria set out in Mumo Matemu on joinder of amicus curiae.
6.
Having therefore considered the application, we make the following Orders:
a.
The application dated 17th January 2022 and lodged 20th January, 2022 on the intended Amicus Curiae is hereby allowed.
b.
The amicus brief attached to the application is deemed as filed and the applicant shall not make oral submissions at the hearing of the petitions.
c.
Parties shall bear their costs.
7.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/15/eng@2022-05-19
Petition E017 of 2021,Kanjama v Attorney General & 82 others (Petition E017 of 2021) [2022] KESC 11 (KLR) (19 May 2022) (Ruling),Ruling,Supreme Court,Supreme Court,I Lenaola,19 May 2022,2022.0,Nairobi,Civil,Kanjama v Attorney General & 82 others,[2022] KESC 11 (KLR)               ,,"[1]
UPON perusing the Notice of Motion dated 2nd February, 2022 brought under Articles 3(1), 22, 159(2), 163, 258(2) & 260 of the Constitution, Section 3 (e) and 11 of the Supreme Court Act and Rule 3(2), 6(2), 32, 40(3) & 55 of the Supreme Court Rules seeking an order of review and setting aside the decision of the Deputy Registrar in his letter dated 13th January, 2021 declining to accept the Applicant’s notice of appeal against the Judgment delivered by the Court of Appeal in Civil Appeals No. E291, E292, E293 and E294 of 2021; a determination of substantial issues of law and procedure on admission of parties to an appeal and that this application be heard prior to the determination of Petitions No. 11, 12 and 13 of 2021 in the Hon. Attorney General v David Ndii & others; and
[2]
UPON reading the applicant’s grounds in support of his application, his supporting affidavit sworn on 2nd February, 2022 and the applicant’s written submissions dated 10th February, 2022 where he contends that Rule 6(1) of the Supreme Court Rules allows a party aggrieved by the decision of the Deputy Registrar to seek a review of the decision; that his application raises fundamental issues for consideration by this Court on the scope of locus standi for litigants to lodge causes on constitutional matters and address the question of who can appeal to the Supreme Court; a determination of the question on the effective date of filing an appeal on the e-filing platform and physical filing of the appeal and; on when the Deputy Registrar of the Court communicates the reasons and decisions for rejecting an appeal to a party;","[3]
AND having considered the application, I FIND as follows:
a.
The notice of appeal upon which the applicant seeks to have filed challenges the Judgment and Orders of the Court of Appeal delivered on 20th August, 2021. Three appeals challenging this Judgment were filed before this Court being The Hon. Attorney General v. David Ndii & Others, Petitions No. 11, 12 and 13 of 2021 which were heard and Judgment delivered on 31st March, 2022. There is therefore no proper notice of appeal that can be filed challenging the consolidated appeal after delivery of judgment in the petition. The application has therefore been overtaken by events.
b.
The applicant is also seeking a determination of issues regarding who may file an appeal to this Court generally and the issue of whether the Deputy Registrar should always communicate reasons for rejecting an appeal and how that communication should be made. It is my finding that such matters relate to substantive issues which cannot be decided in an otherwise straight forward interlocutory application seeking an order of review.
c.
The upshot of my finding is that the application before me has no merit on substance and in any event, has been overtaken by events.
[4]
I therefore make the following Orders:
i.
The Notice of Motion dated 2nd February, 2022 is hereby dismissed.
ii.
Each party shall bear their own costs.
[5]
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/11/eng@2022-05-19
Petition 34 of 2019,Kimani & 2 others v Attorney General (Petition 34 of 2019) [2022] KESC 12 (KLR) (19 May 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",19 May 2022,2022.0,Nairobi,Civil,Kimani & 2 others v Attorney General,[2022] KESC 12 (KLR)               ,,"Brief facts
The applicants filed the instant application seeking leave of the court to file a supplementary record of appeal in order to include a certified copy of the order of dismissal of their appeal at the Court of Appeal; consolidation of their appeal, being Petition No. 34 of 2019 with Petition No. 26 of 2019 and Petition No. 35 of 2019 and designation of Petition No. 26 of 2019 as the lead file. 
It was the applicant’s case that notwithstanding the order of dismissal being issued on December 16, 2021, a certified copy of the order was served upon the advocate on January 21, 2022. Further, that the three appeals sought to be consolidated were not only founded on alleged violation of constitutional rights that occurred at ‘Freedom Corner’ and All Saints Cathedral Church between March 3, 1992 and January 19, 1993 but were also decided by the same judge in the High Court and Bench of the Court of Appeal and raised similar issues. ","Held
In line with the principles set out by the court in Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, SC Application No. 16 of 2014; [2014] eKLR, the applicants had provided a plausible and reasonable explanation for the omission of the certified order in question and the delay in filing the supplementary record of appeal. 
Taking into account that the certified order was served upon the applicants’ advocates on January 21, 2022 and that the motion at hand was filed on February 1, 2022, about nine days thereafter, the delay could not be termed as inordinate. Equally, the certified order sought to be introduced through the supplementary record of appeal was not prejudicial to the respondent. 
Petition Nos. 26, 34 and 35 of 2019 before the court arose from the same set of circumstances, raised similar issues and sought similar orders. Further, they met the threshold for consolidation. 
Application allowed; costs of the application to abide by the outcome of the consolidated appeal.
Orders
The applicants were granted leave to file a supplementary record of appeal to include a certified copy of the order of dismissal issued on December 16, 2021 by the Court of Appeal within seven days of the ruling.
Petition No. 34 of 2019, Priscilla Mwara Kimani & 2 Others v Attorney General was consolidated with Petition No. 26 of 2019, Monica Wangu Wamwere v Attorney General, and Petition No. 35 of 2019, Michael Maina Kamami & Another v Attorney General. Petition No. 26 of 2019 being the first in time would be the lead file.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/12/eng@2022-05-19
Application 16 (E026) of 2021,Maulo & another v Oduori (Application 16 (E026) of 2021) [2022] KESC 22 (KLR) (19 May 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          SC Wanjala,                                                                                                                          W Ouko",19 May 2022,2022.0,Nairobi,Civil,Maulo & another v Oduori,[2022] KESC 22 (KLR)               ,,"Brief facts
The applicants sought for the Supreme Court to review the Court of Appeal’s decision declining to grant certification of leave against its judgment. The subject matter of the case was adverse possession. The main grievance by the applicants was that the Court of Appeal in its judgment ignored crucial evidence and facts on record thereby arriving at a decision that would amount to conflicting principles of adverse possession","Held
The application that sought leave to file the application excluding the certified copies of the judgment and ruling of the Court of Appeal was not necessary as there was no provision under the Supreme Court Act or the Supreme Court Rules, 2020 that mandated the inclusion of such documents in an application to review the Court of Appeal’s decision declining to grant certification of leave. Rule 40 of the Supreme Court Rules provided for the contents of a record of appeal from the Court of Appeal under which the Court could on the application of any party direct certain documents to be excluded from the record.
The applicants had fallen short of making any arguments beyond the specific evidence to demonstrate how the questions framed as involving general public importance transcended the instant litigation. Their argument was replete with how the superior courts ignored certain evidence.
The Supreme Court’s jurisdiction under article 163(4)(b) of the Constitution went beyond resolving factual contestations between the parties. In any event, the principles of adverse possession were settled and the applicants had not demonstrated any inconsistency of findings by the Court of Appeal on the doctrine.
The Supreme Court was not convinced that there was any miscarriage of justice or violation of any constitutional provisions as alleged by the applicants or at all. The applicants were merely in disagreement with the ultimate court determination and that did not suffice to invoke the Supreme Court’s jurisdiction or amount to a miscarriage of justice. The applicants failed to exhibit that they met the threshold for certification of the intended appeal which raised a matter of general public importance.
Application disallowed.
Orders
No order as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/22/eng@2022-05-19
Application EO19 of 2021,"Musembi & 13 others (Suing on their own behalf and on behalf of 15 residents of Upendo  City Cotton village at South C Ward, Nairobi) v Moi Educational Centre Co.  Ltd & 3 others (Application EO19 of 2021) [2022] KESC 19 (KLR) (Civ) (19 May 2022) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",19 May 2022,2022.0,Nairobi,Civil,"Musembi & 13 others (Suing on their own behalf and on behalf of 15 residents of Upendo  City Cotton village at South C Ward, Nairobi) v Moi Educational Centre Co.  Ltd & 3 others ",[2022] KESC 19 (KLR)               ,,"1.
Upon perusing this application brought pursuant to Article 159(2)(d) of the Constitution, Section 3, (d), (e), 14 (5) and 21 (1) (a), (2) (4) 0f the Supreme Court Act and Rule 28(5) and (6) of the Supreme Court Rules 2020, and supported by the annexed affidavit of Mbugua Mureithi, the Applicant’s Advocate sworn on 9th September, 2021, for orders that:
i.
this Court be pleased to review, clarify, rectify and correct the determination at paragraph 81 of the judgment of this Court delivered on 16th July, 2021 (as amended by Court suo moto to correct Order (vi) to read Kshs. 100,000 instead of Kshs.100,0000) to include an order for interest on damages awarded to the applicants/petitioners while upholding and affirming the judgment of the High Court in High Court Petition No 264 of 2013 (as consolidated with Petition No. 274 of 2013);
ii.
In the alternative to prayer (1) above, the Honourable Court be pleased to invoke its inherent power and deem this application as the application filed by the Petitioners on 30th July 2021 in Supreme Court Petition No. 2 of 2018 under section 21(4) of the Supreme Court Act and Rule 28 (5) and (6) of the Supreme Court Rules, 2020 seeking orders for correction and/ or rectification of the judgment by including an order for interest on damages after this Court upheld and affirmed judgment of the High Court;
2.
Uponconsidering the applicants’ submissions to the effect that on 16th July, 2021, this Court delivered judgment explicitly affirming the High Court award of damages to the applicants, after setting aside the judgment of the Court of Appeal, but was silent on the ancillary orders of interest on damages as awarded by the High Court; that from the drift and thrust of the judgment, this Court did not intend to deny the applicants the award of interest; that the omission was inadvertent, an apparent error on the face of the judgment or a slip by the Court and; that had the Court intended not to award interest, it would have explicitly stated so and explained why; and that the review sought in the instant application is minor, as it does not seek to re-litigate the concluded dispute or to alter the substance of the judgment of this Court, but merely to align it with that of the High Court in order to realize the true intention of the Court; and
3.
Furthermore,considering the applicants’ averment that on 30th July, 2021, they filed an application under Section 21 (4) of the Supreme Court Act and Rule 28(5) and (6) of the Supreme Court Rules 2020 to include an order for interest on damages but despite payment of filing fees, the payment has not been acknowledged on the Judiciary portal necessitating the filing of the instant application; and
4.
Noting that the 1st Respondent is opposed to the application, and has placed on record a Replying Affidavit sworn by Paul K. Chemngorem and written submissions, in which they maintain that, while Section 21 (4) of the Supreme Court Act confers upon the Court the limited power to correct a clerical error or slip in any of its judgments, rulings or orders once delivered, this power is subject to the following conditions; that the correction can only be sought within fourteen days of delivery of judgment, ruling or order; that the relevant parties have been notified, and, that the substance of review must relate to any oversight, errors of clerical computation, or errors apparent on the face of the judgment, ruling or order, with the aim of giving effect to the intention of the Court; and
5.
Notingfurther that in view of the foregoing, an omission to award interest on damages does not meet the threshold laid by Section 21(4); that an award for interest is not apparent, but is in fact a substantive issue which has to be computed, varied and involves discretionary consideration and; that the applicants do not deserve to be awarded any interest on the damages as the 1st respondent cannot be said to have kept them out of money owed to them or to have deprived them of the funds; that an award on interest which has accrued for eight years would soar the decretal sum disproportionately and would adversely burden the innocent children who attend the 1st respondent and could prejudice the quality of education offered to them; and
6.
Further Noting that the 2nd, 3rd and 4th Respondents are also opposed to the application and contend that, had the Court intended to award interest on the award to the applicants, it would have done so while suo moto amending the Order on the 19th of July, 2021, and, that by failing to do so, was a manifestation that the Court did not find reason to amend the orders to grant interest. They urge that the applicants do not meet the criteria in the Outa Case as they have neither demonstrated an error or mistake that is apparent on the face of the judgment, neither has the applicant demonstrated that the Court was not competent or that the judgment was obtained by fraud or deceit.
","7.
Consideringthat this application has been brought pursuant to Article 159(2)(d) of the Constitution which requires courts to administer justice without undue regard to procedural technicalities, Section 14 (5) on the inherent power of the Court to make such orders as may be necessary for the ends of justice to be met or to prevent abuse of the due process of the Court, Section 21 (4) on the general powers of the Court to correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order, Rule 28 (6) of the Supreme Court Rules, 2020, made pursuant to Section 21(4) and sub-rule (5) which deals with the review of any decision of the Court and with formal correction of a judgment, ruling or order; and
8.
Upon considering the circumstances of this case, looking at the grievance, the correct provision should be Section 21 (4) of the Supreme Court Act which provides that:
“
Within fourteen days of delivery of its judgment, ruling or order, the Court may, on its own motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order and such correction shall constitute part of the judgment, ruling or order of the Court.” [our emphasis]; and
9.
Notingthat this section embodies the “Slip Rule”, which allows the Court to correct errors that are apparent on the face of a judgment, ruling, or order of the Court. Such errors must be obvious, the correction of which does not confer upon the Court any jurisdiction or powers to sit on appeal over its own judgment, ruling or order or, to review such judgment, ruling or order as to substantially alter it; and
10.
Acknowledgingthat this Court can correct any clerical error, or some other error, arising from any accidental slip or omission, or to vary the judgment, ruling or order so as to give effect to its intention in terms of its decision in Fredrick Otieno Outa v. Jared Odoyo Okello, SC Petition No 6 of 2014;[2017] eKLR, namely, to steer a judgment, ruling, or order “towards logical, or clerical, perfection”, pursuant to Rule 28(5) of the Supreme Court Rules; and
11.
Therefore,to succeed in an application for the correction of errors, the application must be brought within fourteen days of delivery of the judgment, ruling or order, whether it is the Court itself that wishes to do so on its own motion or upon being moved by a party. Secondly, the applicant or the Court must give notice to the other parties before seeking to make the correction. Thirdly, the error to be corrected must relate to an oversight or clerical error of computation or other error. Finally, the error must be apparent on the judgment, ruling or order in question; and
12.
Satisfiedfrom the uncontroverted averment by the applicants that they had made attempts to notify the Court of the omission in the order of interest on damages in the email correspondence sent to the Court on 22nd July, 2021, which the Court failed to acknowledge receipt of; and further that subsequently on 30th July, 2021, they also unsuccessfully filed an online application on the Judiciary portal seeking orders to correct and rectify the Judgment under Section 21(4) of the Supreme Court Act and Rule 28(5) and (6) of the Supreme Court Rules to include an order for interest on damages; and
13.
Bearing in mind that the present application dated 9th September, 2021 was brought 55 days after the date of judgment and 51 days after the correction of the same; and
14.
Cognizantof the fact that the applicants, having noted the omission made genuine attempts, within the time stipulated, to have the Court correct this error, but for failure by the Court to acknowledge receipt of the application; appreciating that the omission, regrettably was committed by the Court, and guided by the principles enunciated in our own decisions in Martin Wanderi & 106 others v. Engineers Registration Board & 5 others; Egerton University & 43 others (Interested Parties), SC Application 39 of 2019; [2020] eKLR, and Outa (supra), where in the latter we explained that;
“
(91)
…Aren’t there situations, so grave, and exceptional, that may arise, that without this Court’s intervention, could seriously distort its ability to do justice? Of course, litigation must come to an end. But should litigation come to an end, even in the face of an absurdity? The Supreme Court is the final Court in the land. But most importantly, it is a final Court of justice. This being the case, the Court is clothed with inherent powers which it may invoke, if circumstances so demand, to do justice. The Constitution from which this Court, and indeed all Courts in the land, derive their legitimacy decrees that we must do justice to all.”; and
15.
Further, we are guided by Rule 3(5) of this Court Rules which provides
that:
“
Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders or give directions as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”; and
16.
IN the end, we find that there is exceptional circumstance which requires that we invoke this Court’s inherent powers to review the Judgment in the relevant part as prayed, in order to meet the ends of justice and to give effect to the intention of the Judgment in accordance with Section 21(4) of the Supreme Court Act as read with Rule 28(5) of the Supreme Court Rules.
17.
Consequent, upon our findings above, we review the order to include interest on damages awarded in (v) and (vi) in the Judgment from the date of judgment of the High Court until payment in full.
18.
Accordingly, we make the following Orders:
i.
The Notice of Motion dated 9th September, 2021 and filed on 21st October, 2021, is hereby allowed.
ii.
Consequently, the Judgment dated 16th July, 2021 and amended on 19th July, 2021 is hereby reviewed to include, Order No. vii which shall now read as follows:
“vii. The petitioners shall also have interest on damages in (v) and (vi) above from the date of judgment of the High Court until payment in full.”
iii.
Each party to bear its own costs of this Application.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/19/eng@2022-05-19
Petition 4 of 2020,"Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of  Kenya (Petition 4 of 2020) [2022] KESC 16 (KLR) (19 May 2022) (Judgment)",Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",19 May 2022,2022.0,Nairobi,Civil,"Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of  Kenya",[2022] KESC 16 (KLR)               ,,"Brief facts
The petition was an appeal against the decision of the Tribunal appointed to investigate the conduct of Justice Martin Mati Muya to recommend the removal of the judge from office. The decision of the tribunal was based on how the judge handled Alfred Kipkorir Mutai & Kipsigis Stores Limited v NIC Bank Limited (HCCC No. 4 of 2016) at the High Court at Bomet. 
The case before the High Court centered around hire-purchase agreements between the plaintiffs in the suit (the borrowers) and the NIC Bank (the bank). In the agreements, the bank advanced loan facilities to the former to purchase several motor vehicles. When there was default in the repayment, the bank threatened to repossess all the subject motor vehicles, prompting the borrowers to institute HCCC No. 4 of 2016 to stop the bank by an order of permanent injunction from repossessing the motor vehicles and also to declare that they were not indebted to the bank, claiming that they had fully settled the loan. 
An application in which the plaintiffs sought temporary orders of injunction to restrain the bank from seizing, repossessing, advertising for sale, and/or selling some 26 commercial vehicles was also filed, the subject of the hire-purchase agreement. The application was granted ex parte on the same day. The parties had agreed to determine the applications by way of written submissions, but on the date of highlighting the submissions, neither party had filed any submissions. As a result, the court vacated the ex parte orders. Eight days later, the plaintiffs having learned of the vacation of the interim orders, the borrowers immediately filed an application for setting aside the proceedings that set aside the ex parte orders and sought reinstatement of the interim orders and maintenance of the status quo. 
The petitioner gave orders to maintain the status quo and reinstated the interim orders. The petitioner, however, did not give reasons for his decision despite having given dates to issue the reasons. He had deferred the matter several times. The court issued reasons five months from the date of the ruling. During the delay, the bank was not able to file due to the lack of a ruling on which they would base their grounds. Subsequently, the bank claimed to have lost around seventeen million Kenya shillings as a result of the delay. 
Aggrieved, the bank wrote a letter of complaint to the Chief Justice and copied it to the Judicial Service Commission (JSC), in which they sought the intervention of the Chief Justice by urging the Chief Justice to call for the file, to review the same, and to take the requisite administrative action to remedy the situation.
The Chief Justice forwarded both letters and the reply he had received from the petitioner to the JSC. The JSC, in turn, constituted a committee to consider the complaints. The committee recommended to the JSC to petition the President to appoint a tribunal to further investigate the conduct of the judge. The Tribunal concluded that the delay of five months was inordinate and constituted gross misconduct and recommended the removal of the judge from office. Aggrieved, the petitioner filed the instant appeal. ","H. Final Disposition of the Court
262.
In the order the arguments were presented, we dispose of the six grounds by declaring as follows;
a)
On the first ground, we reverse the Tribunal’s decision that the delay in giving reasons was inordinate and amounted to gross misconduct.
b)
We agree that the unavailability of the court file before the Commission and the Tribunal was prejudicial to thepetitioner and amounted to a violation of his right to fair administrative action and hearing.
c)
Though the Tribunal has wide powers in the process of investigating any of the grounds for removal of a judge, it acted in excess of its mandate, in specific situations when it considered issues pending determination in the High Court or introducing matters that were not before the petitioner when he made the decision in question.
d)
There was no proof that the Bank suffered loss or prejudice as a result of the petitioner’s decision.
e)
The Tribunal applied the correct standard and burden of proof, and there are no instances where the burden was unfairly shifted to the petitioner.
f)
The letter initiating the complaint was, by the terms of article 168(3) of the Constitution, a valid petition to the Commission
H. Orders
263.
Arising from the above, the consequential orders to be made are that:
a)
The petition of Appeal dated March 25, 2020 is allowed.
b)
Save for the correct finding that the letter of complaint was a petition, the Tribunal’s finding in respect of all the other grounds, set out above, are quashed and set aside.
c)
We declare that the petitioner’s conduct did not amount to gross misconduct in terms ofarticle 168(1)(e) of the Constitution.
d)
The Tribunal’s recommendation to the President to remove the petitioner from office under article 168(7)(b) of the Constitution is likewise set aside.
e)
We make no orders as to costs.
264.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/16/eng@2022-05-19
Application 1 (E002) of 2022,Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly of the Republic of Kenya & 10 others (Application 1 (E002) of 2022) [2022] KESC 18 (KLR) (19 May 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",19 May 2022,2022.0,Nairobi,Civil,Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly of the Republic of Kenya & 10 others,[2022] KESC 18 (KLR)               ,,"Brief facts
The applicants filed the instant application seeking stay of execution of orders 1, 3 and 9 of the judgement of the Court of Appeal at Nairobi in Civil Appeal No. E084 of 2021, National Assembly & others v the Senate of Kenya & others pending hearing and determination of Supreme Court Petition No. 19(E027) of 2021, Senate of Kenya & others v National Assembly & others. The applicants submitted that unless the orders of stay were granted, the appeal would be rendered nugatory. The applicants argued that they had an arguable appeal to warrant the grant of stay orders.","[6]
Upon Considering orders (i) to (vi) both inclusive made by the High Court in Nairobi HC Petition No 284 of 2019 as consolidated with Nairobi HC Petition No 353 of 2019 which read inter alia:
“
i.
A declaration be and is hereby issued that pursuant to article 110(3) of the Constitution, a Speaker of a House of Parliament must first seek the concurrence of the Speaker of the other House of Parliament, as to whether a bill is one that concerns counties, and if it is, whether it is a special or an ordinary bill, before the bill can be introduced for consideration in the originating House.
ii.
A declaration be and is hereby issued that it is mandatory and a condition precedent for any bill that is published by either House to be subjected to a concurrence process to determine in terms of article 110 (3) of the Constitution whether the Bill is special or an ordinary bill and that such determination is not dependent on “a question arising” as to whether the Bill is one that concerns Counties;
iii.
A declaration be and is hereby issued that the provisions of article 110 (3) of the Constitution are couched in mandatory terms and is a condition precedent before any House of Parliament can consider a bill;
iv.
A declaration be and is hereby issued that pursuant to article 110(3) of the Constitution, one Speaker cannot unilaterally make a decision as to whether the Bill does or does not concern counties or whether a question as to whether the Bill is one that concerns counties does or does not arise;
v.
An order be and is hereby issued ordering the immediate cessation of consideration of all bills that are pending before either House, and for which joint concurrence by the Speakers of both Houses as to whether the bills concern counties, has not been demonstrated to allow for such Bills to be subjected to the mandatory joint concurrence process contemplated under article 110(3) of the Constitution.”
[7]
Furthernoting that no party has responded or challenged the application before us despite the pre-trial directions before the Deputy Registrar on January 14, 2022 and March 7, 2022; and
[8]
Considering this court’s finding on its jurisdiction to grant orders of stay of execution of decrees issued by superior courts in the case of Board of Governors, Moi High School, Kabarak & another v Malcolm Bell, Petition Nos 6 & 7 of 2013; [2013] eKLR(Malcom Bell Case) and noting this court’s guiding principles on grant of stay of execution orders in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No 5 of 2014; [2014] eKLR Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No 5 of 2014 ; [2014] eKLR ( Gatirau Munya Case); and
[9]
Having considered the prayers sought, we find that SC Petition No 19(E027) of 2021, which is already before us is arguable and that the instant application meets the principles set out by this court in the Malcom Bell Case and Gatirau Munya case.
[10]
For the reasons aforesaid, we now make the following orders:
Orders:
a.
Pending hearing and determination of Supreme Court Petition No 19(E027) of 2021; Senate of Kenya & others v National Assembly & others, an order is issued to stay the execution of order 1, 3 and 9 Court of Appeal at Nairobi in Civil Appeal No E084/2021; National Assembly another & Senate of Kenya & others.
b.
The costs of this application shall abide the court’s decision in the appeal.
[11]
It is so, ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/18/eng@2022-05-19
Petition 19(E027) of 2021,Senate Of The Republic Of Kenya & 3 others v Speaker of The National Assembly Of The Republic Of Kenya & 10 others; Fund Board (Interested Party) (Petition 19(E027) of 2021) [2022] KESC 20 (KLR) (19 May 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",19 May 2022,2022.0,Nairobi,Civil,Senate Of The Republic Of Kenya & 3 others v Speaker of The National Assembly Of The Republic Of Kenya & 10 others; Fund Board,[2022] KESC 20 (KLR)               ,,"1.
Uponperusing the Notice of Motion application dated 31st January 2022, filed under Article 159 of the Constitution, Sections 3, 23 and 24 of the Supreme Court Act and Rules 24 and 32 of the Supreme Court Rules, 2012 where the applicant seeks to be admitted as an interested party to the appeal, and to respond to the application for stay dated 11th January 2022 (application for stay); and
2.
Uponreading the Affidavit in support of Simon Ndweka, the Corporation Secretary of the Applicant, sworn on 31st January 2022; and
3.
Notingthe grounds adduced in support of the application, and the submissions made by the applicant in support of the orders for admission as interested party namely, that the applicant has an identifiable stake in the appeal before us; that the orders sought in the application for stay , if granted, will expose the intended interested party to constitutional challenges to its continued operations; the application for stay will affect the passage of the National Government Constituencies Development Fund (Amendment) Bill, 2021 that is pending before the National Assembly; that the applicant was an active party at the High Court and at the Court of Appeal, only that their appeal has not finalized as those of the appellants herein; that it has a stake in the proceedings herein as its outcome will affect its operations; that there are statutory functions that are being carried out as part of day to day activities in execution of their mandate that will be affected without their input in the appeal; and that the applicant will make submissions related to its constitutive Act; and
4.
Upon Considering the submissions by the 1st and 2nd respondents where they submit that the applicant has identified its interest noting that the outcome of the appeal would affect the Bill pending before the National Assembly; that the applicant should stand assured that the 1st and 2nd respondents will safeguard its mandate to pass legislation within its constitutional limits; that the Bill does not affect counties, that it is squarely within the mandate of the National Assembly and that the 1st and 2nd respondents will articulate that position before us; that the applicant has failed to set out the grounds or submissions it seeks to make and their relevance to the proceedings; and
5.
Noting the submissions by the 3rd respondent urging that the applicant was never a party to the proceedings before the superior courts; that that application is bad in law as it is premised on Rule 24 and 32, 2012 which were revoked by Rule 67 of the Supreme Court Rules, 2020; that the application has not met the threshold set under Rule 24 of the Supreme Court Rules, 2020 and the decisions of this Court; that the applicant has failed to demonstrate its stake in the proceedings before the Supreme Court; that the applicant has failed to disclose the alleged constitutional challenges in a precise manner to warrant its joinder its to the case; that the applicant has not explained its relevance to the proceedings and how it will be useful to the Court in making its determination on the issues raised; and that the applicant has no identifiable stake in this suit that is proximate enough to occasion any prejudice to it because its rationale to be joined in the suit is insufficient; and
6.
Upon Considering the provisions of Section 23 of the Supreme Court Act, Rule 24 of the Supreme Court Rules, 2020, and the principles set out in this Court’s decisions in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others, Supreme Court Petition No. 12 of 2013, [2014] eKLR (an application by the Law Society of Kenya); Francis Karioki Muruatetu & another v Republic & 5 others Petition No 15 of 2015 as consolidated with petition No. 16 of 2015 [2016] eKLR; and Methodist Church in Kenya v Mohamed Fugicha & 3 others [2019] eKLR; and
7.
Having perused High Court Petition No 284 & 353 of 2019(consolidated) Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another; Attorney General & 7 others (Interested Parties) [2020] eKLR, and Speaker of the National Assembly of the Republic of Kenya & another v Senate of the Republic of Kenya & 12 others (Civil Appeal E084 of 2021) [2021] KECA 282 (KLR) (Civ) (19 November 2021) (Judgment) and noting that, contrary to the applicant’s submissions, the applicant was never a party before the superior courts; and
8.
Consideringthat the applicant has failed to clearly identify its interest in the appeal, the case it intends to urge, and the prejudice if any, it will suffer if they are not admitted as interested party, by a unanimous decision of this Court, we find that the prayer to have the intended interested party/applicant enjoined as an interested party lacks merit and is consequently disallowed; and
9.
Further,noting that the intended interested party/applicant has also prayed and submitted that the they be allowed to respond to the application for stay; and
10.
Having considered the said prayer, we find that a party yet to be enjoined in a matter such as the present appeal, lacks the capacity to pray for interlocutory orders in it, and that the prayer is therefore disallowed.","10.
For reasons aforesaid, we now make the following orders under Rule 24 of the Supreme Court Rules, 2020:
Orders:
a.
The Application dated 31st January 2022 and filed on 1st March 2022 seeking joinder of the National Government Constituencies Development Fund Board as Interested Parties to the Reference herein be and is hereby disallowed; and
b.
The applicant shall bear the costs of the 1st & 2nd and the 3rd respondents.
12.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/20/eng@2022-05-19
Petition 14 (E021) of 2021,"Sonko v Clerk, County Assembly of Nairobi City & 12 others (Petition 14 (E021) of 2021) [2022] KESC 17 (KLR) (19 May 2022) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",19 May 2022,2022.0,Nairobi,Civil,"Sonko v Clerk, County Assembly of Nairobi City & 12 others",[2022] KESC 17 (KLR)               ,,"Brief facts
The applicant filed an application to withdraw the appeal and all the parties consented to the withdrawal. The 11th respondent was unable to agree on costs which led to parties being directed to file submissions limited to the question of whether costs should be paid to the 8th respondent upon the withdrawal. The applicant submitted that the petition of appeal was withdrawn at the earliest opportunity and in good faith and any costs incurred thereafter were occasioned by the respondents’ demand for costs.
The applicant submitted that costs fell under the inherent powers of the court and that the issues raised in the appeal were constitutional in nature and a matter of public interest despite having filed it in his individual capacity thus he sought orders that each party bears its own costs. The 8th respondent contended that costs follow the event and that an order for withdrawal was subject to an order for costs to the respondent. The respondent further contended that the applicant filed the appeal in his personal capacity and that he stood to solely benefit from the outcome, hence he ought to shoulder the costs of the 8th respondent;","Held
The court had inherent jurisdiction to make orders on costs, with section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules, 2020 being instructive on that. The award of costs would normally be guided by the principle that costs followed the event: the effect being that the party who called forth the event by instituting suit, would bear the costs if the suit failed; but if that party showed legitimate occasion, by successful suit, then the defendant or respondent would bear the costs.
The vital factor in setting the preference was the judiciously-exercised discretion of the court, accommodating the special circumstances of the case while being guided by the ends of justice. The claims of the public interest would be a relevant factor, in the exercise of such discretion, as would also the motivations and conduct of the parties, prior to, during, and subsequent to the actual process of litigation.
Although there was eminent good sense in the basic rule of costs that costs followed the event, it was not an invariable rule and, indeed, the ultimate factor on award or non-award of costs was the judicial discretion. Therefore, costs did not, in law, constitute an unchanging consequence of legal proceedings.
From the record, the petition was withdrawn before the respondents had filed any responses or substantive submissions to the appeal save for the 7th respondent who filed a notice of preliminary objection. The appeal, at the time of withdrawal, was not ripe for hearing. While applying the principle that costs normally followed the event, the event to which costs would follow had not materialized. The applicant’s appeal did not proceed as the occurrence of the event that would have led to the applicant being successful crystallized as the 11th respondent was sworn in as Governor of Nairobi County.
Application allowed.
Orders
Each party to bear its costs of the appeal.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/17/eng@2022-05-19
Application E026 of 2021,The Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others (Application E026 of 2021) [2022] KESC 21 (KLR) (19 May 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",19 May 2022,2022.0,Nairobi,Civil,The Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others,[2022] KESC 21 (KLR)               ,,"1.Upon perusing the Notice of Motion Application by the Applicants dated 21st December 2021 and filed on 26th January 2022 and the Supporting Affidavit sworn by Jeremiah Nyegenye, the Clerk of the Senate of the Republic Kenya and Secretary to the Parliamentary Service Commission; and 2.Uponconsidering the Applicant’s Notice of Motion Application together with its written submissions dated 28th February 2022 in response to the 1st and 7th respondents’ preliminary objections, wherein the applicants contended that this Court has jurisdiction to consider the application and the petition of appeal as the Court has previously held that it has limited jurisdiction in so far as considering appeals arising from Rule 5(2) (b) of the Court of Appeal Rules.  3.Further,noting the applicants’ submission, where the applicants argued that their right to a fair hearing as provided for under Articles 48 and 50 of the Constitution was violated by the Court of Appeal in failing to grant stay to protect the substratum of the appeal before it. Furthermore, that in declining to grant the stay application and giving the applicants only 7 days to recover Kshs. 1.2 Billion which monies had been paid out to the MPs as accommodation facilitative allowance rendered the appeal nugatory. ","We Now Determineas follows:i.That the substantive appeal is still pending before the Court of Appeal for hearing and determination; there is no determination of any constitutional question by the Court of Appeal so far; and recalling that this appeal emanates from an interlocutory Ruling and having considered the application, preliminary objections and submissions;ii.This Court settled with finality the question of its jurisdiction to hear and entertain appeals arising from interlocutory orders of the Court of Appeal made pursuant to Rule 5(2) (b) in the case of {{> Teachers Service Commission v Kenya National Union of Teachers & 3 others SC Application No 16 of 2015 [2015] eKLR where it stated:“The application before us contests the exercise of discretion by the Appellate Court, when there is neither an appeal, nor an intended appeal pending before this Court. Moreover, the appeal before the Court of Appeal is yet to be heard and determined. An application so tangential, cannot be predicated upon the terms of Article 163 (4) (a) of the Constitution. Any square involvement of this Court, in such a context, would entail comments on the merits, being made prematurely on issues yet to be adjudged, at the Court of Appeal, and for which the priority date of 22nd September, 2015 has already been assigned. Such an early involvement of this Court, in our opinion, would expose one of the parties to prejudice, with the danger of leading to an unjust outcome.In these circumstances, we find that this Court lacks jurisdiction to entertain an application challenging the exercise of discretion by thCourt of Appeal under Rule 5 (2) (b) of that Court’s Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court”",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/21/eng@2022-05-19
Petition 41 of 2018,Muriithi v Mohammed (as the executrix of the estate of Hon. Daniel Toroitich Arap Moi) & another (Petition 41 of 2018) [2022] KESC 9 (KLR) (9 May 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",9 May 2022,2022.0,Nairobi,Civil,Muriithi v Mohammed (as the executrix of the estate of Hon. Daniel Toroitich Arap Moi) & another ,[2022] KESC 9 (KLR)               ,,The instant application sought substitution of the deceased petitioner (deceased) with the applicant as the legal representative of the deceased’s estate. The deceased passed away in June 2021 and had appointed the applicant as the sole executor of his written will hence in September 2021 the High Court issued a grant of probate in his favour being the legal representative of the deceased’s estate. The applicant claimed that he was the proper person in law to substitute the deceased in the instant proceedings and that the substitution was necessary to enable continuation of the petition of appeal to its conclusion.,"The sources of law that governed proceedings before the court were; the Constitution of Kenya, 2010, the Supreme Court Act, the Supreme Court Rules and any Practice Directions made by the court or the Chief Justice. The instant motion was erroneously anchored on the Civil Procedure Rules which were not applicable to proceedings before the court. A court of law had to be moved under the correct provisions of the law; and the failure to identify the proper legal framework rendered a motion, such as the instant one liable to be struck out.The court in granting the deceased leave to file the appeal, not only certified but also framed two issues of general public importance arising from the appeal which warranted its consideration. The motion of substitution was lodged within 12 months of the deceased’s demise and the respondents had not filed any response to indicate whether an order of substitution would cause them any prejudice. ",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/9/eng@2022-05-09
Petition 12 of 2021,"Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment) (with dissent)",Judgement,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",31 March 2022,2022.0,Nairobi,Civil,Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others,[2022] KESC 8 (KLR)               ,,"Having considered the seven (7) issues framed by this Court for determination the final Orders are as follows: (i) (a) The basic structure doctrine is not applicable in Kenya. (Ibrahim, SCJ dissenting). (b) In order to amend the Constitution of Kenya 2010, the four sequential steps as pronounced by the two superior courts below are not necessary. (Ibrahim, SCJ dissenting). (ii) (a) The President cannot initiate Constitutional amendments or changes through the popular initiative under Article 257 of the Constitution. (Njoki Ndungu, SCJ dissenting). (b) The President initiated the amendment process in issue (Njoki Ndungu & Lenaola SCJJ dissenting). (c) Consequently, under Article 257 of the Constitution, the Constitution (Amendment) Bill, 2020 is unconstitutional (Njoki Ndungu & Lenaola SCJJ dissenting). (iii) The Second Schedule of the Constitution of Kenya (Amendment) Bill, 2020 is unconstitutional for being in breach of Articles 10(2) and 89(7)(a) of the Constitution of Kenya 2010 for lack of public participation. (Unanimous). (iv) Civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done under the Constitution of Kenya 2010. (Unanimous). (v) (a) There was no obligation under Article 10 and 257 (4) of the Constitution, on IEBC to ensure that the promoters of the Constitution of Kenya (Amendment) Bill, 2020 complied with the requirements for public participation. (Unanimous). (b) There was public participation with respect to the Constitution of Kenya (Amendment) Bill, 2020. (Mwilu; DCJ & V-P; Ibrahim and Wanjala, SCJJ dissenting). (vi) IEBC had the requisite composition and quorum to undertake the verification process under Article 257(4). (Ibrahim, SCJ dissenting) (vii) The question raised regarding the interpretation of Article 257(10) of the Constitution on whether or not it entails or requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination. (Njoki Ndungu, SCJ concurring). (viii) Each party shall bear their own costs, this being a public interest matter. 360. Consequently, the consolidated appeal is determined as follows: (1) The appeal is allowed on the issue No 1; The basic structure doctrine is not applicable in Kenya. (2) The appeal is allowed on issue No 4; Civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done contrary the Constitution of Kenya, 2010. (3) The appeal is allowed on issue No 5; There was no obligation under Article 10 and 257 (4) of the Constitution, on IEBC to ensure that the promoters of the Constitution of Kenya (Amendment) Bill, 2020 complied with the requirements for public participation. and there was public participation with respect to the Constitution of Kenya (Amendment) Bill, 2020. (4) The appeal is allowed on issue No 6; The IEBC had the requisite composition and quorum to undertake the verification process under Article 257(4). (5) The appeal is allowed on issue No 7; The question raised regarding the interpretation of Article 257(10) of the Constitution on whether or not it entails or requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination. (6) The appeal is disallowed on issue No 2; The President cannot initiate Constitutional amendments or changes through the popular initiative under Article 257 of the Constitution; that the President initiated the amendment process in issue. Consequently, under Article 257 of the Constitution, the Constitution (Amendment) Bill, 2020 is unconstitutional. (7) The appeal is disallowed on issue No 3; The Second Schedule of the Constitution of Kenya (Amendment) Bill, 2020 is unconstitutional for being in breach of Articles 10(2) and 89(7)(a) of the Constitution of Kenya, 2010. (8) Each Party shall bear their own costs.",,Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/8/eng@2022-03-31
Application 32 (E043) of 2020,Board of Management Visa Oshwal Primary School v Shree Visa Oshwal Community Nairobi Registered Trustees & 4 others; National Land Commission (Interested Party) (Application 32 (E043) of 2020) [2022] KESC 4 (KLR) (17 February 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",17 February 2022,2022.0,Nairobi,Civil,Board of Management Visa Oshwal Primary School v Shree Visa Oshwal Community Nairobi Registered Trustees & 4 others; National Land Commission,[2022] KESC 4 (KLR)               ,,"The matter was an application for leave to appeal, an extension of time to file and to serve a notice of appeal and the appeal, joinder of an interested party and stay of execution against the judgment and order of the Court of Appeal at Nairobi delivered on February 22, 2019 in Nairobi Civil Appeal No. 126 of 2014. The applicant contended that it only became aware of the Court of Appeal’s judgment and the consequential orders upon service of an eviction notice by the 1st respondent’s Advocate on or about November 11, 2020.","For the Supreme Court’s appellate jurisdiction to be invoked under article 163(4)(a) of the Constitution, the litigant had to demonstrate that the matter in issue was deserving the court’s settlement. It ought to revolve around the constitutional contestation that had come up the judicial hierarchy, running up to the Court of Appeal and requiring the Supreme Court’s settlement as the apex court. In the instant matter, the applicant failed to persuade the court that it properly invoked its jurisdiction.Previously the Supreme Court had found that it was not plausible that its jurisdiction, as enshrined in article 163(4)(a) of the Constitution, contemplated that a person who was not party to the proceedings at the superior Courts below the Supreme Court, would file an appeal. Accordingly, the applicant did not have locus standi to institute a matter under article 163(4)(a) of the Constitution having not properly invoked the instant Court’s jurisdiction.The foregoing notwithstanding, there existed obvious public interest involving the fate of a public school and the 2000 primary school students that the court could not close its eyes to. There was a clear thread, both in the High Court and the Court of Appeal, relating to the existence of a public school on the land whose title was in controversy, and that the decision of the court would impact on that school despite the school not being a party in both superior courts.The foregoing notwithstanding, there existed obvious public interest involving the fate of a public school and the 2000 primary school students that the court could not close its eyes to. There was a clear thread, both in the High Court and the Court of Appeal, relating to the existence of a public school on the land whose title was in controversy, and that the decision of the court would impact on that school despite the school not being a party in both superior courts.The applicant had a legitimate claim and  the judgment of the Court of Appeal had affected its interest even though it was not a party to the proceedings at the High Court and the Court of Appeal.The fate of a public school was a matter of public interest and the applicant ought to have been allowed to ventilate its issues albeit in a proper forum. Therefore, the Applicant  ought to have pursued its claim by instituting a suit at the Environment and Land.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/4/eng@2022-02-17
Petition 15 of 2017,Imanyara & 2 others v Attorney General (Petition 15 of 2017) [2022] KESC 78 (KLR) (Constitutional and Human Rights) (17 February 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",17 February 2021,2022.0,Nairobi,Civil,Imanyara & 2 others v Attorney General,[2022] KESC 78 (KLR)               ,,"The appellants filed petitions at the High Court seeking among other orders damages for violations of their fundamental rights and freedoms. The appellants alleged that on various dates, between 1985 and 1994 their fundamental rights and freedoms were systematically contravened and grossly violated. It was the appellants’ contention that they were severally arrested, subjected to torture, had trumped-up charges brought against them, were improperly convicted and imprisoned, and held in solitary confinement at the notorious E Block at Kamiti Maximum Prison, where insane prisoners were held. The appellants stated that their sources of livelihood were destroyed by various Government agencies. It was the appellant’s contention that they suffered psychological torture, post-traumatic stress disorder, and economic loss.The appellants recorded a consent with the Attorney General stating that liability was not contested save in respect of any lawful conviction which issue was left for the adjudication by the court on the basis of the parties’ written submissions, evidence, authorities, and highlighting. The High Court awarded the 1st, 2nd, and 3rd appellant general damages of Kshs 15 million, Kshs 10 million and Kshs 7 million respectively. Dissatisfied, the appellants filed an appeal at the Court of Appeal seeking among other orders; a declaration that the awards were grossly inadequate redress for the admitted breaches of the Constitution. The Court of Appeal dismissed the appeal with no order as to costs. Aggrieved, the appellants filed the instant appeal.","The court took judicial notice of the fact that the clamor for the second liberation was marred by extra-judicial repression, in which oppression and suppression of freedoms such as liberty, expression, association and assembly were stifled at every instance. Sedition, treason, foreign exchange restrictions, and other laws were used to subdue the populace into submission. Detention without trial, torture, and prosecutions on trumped-up charges characterized the regime. Through various amendments to the repealed Constitution, presidential declarations and decrees, the President had control over Parliament, Judiciary and the Electoral Commission.That consolidation of power by the Executive weakened institutions such as the Judiciary and the Police Force, thereby eroding the protection and enforcement of human rights. Security agencies backed that system and spying agencies acquired notoriety not only in conducting surveillance in the interest of State security but also using the excuse of State security to harass, apprehend, detain, and torture real or perceived enemies of the Government at that time. The infamous prominence acquired by Nyayo House (torture chambers) and Nyati House in the 1980s and early 1990s was a reflection of how extra-judicial means were used to asphyxiate civil society discourse.The constitutional amendments that began in 1990 marked a paradigm shift from the dark days of struggle for democracy into the culmination of the promulgation of the Constitution of Kenya, 2010. The Constitution enshrined vital elements of democracy such as good governance, integrity, transparency, human dignity, equality, human rights, and non-discrimination among other national values and principles as set out in article 10 of the Constitution. As such, and as the apex court, the court was called upon to interpret the Constitution in a manner that advanced the rule of law, human rights and fundamental freedoms.Under article 163(4)(a) of the Constitution, the court had jurisdiction to entertain appeals as of right in any case involving the interpretation and application of the Constitution. The guiding principles for admitting a matter under article 163(4)(a) of the Constitution were that:An appeal must originate from a Court of Appeal case where the issues in contestation revolved around the interpretation or application of the Constitution.
An appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum.Such a party must be faulting the Court of Appeal on the basis of such interpretation.The matter before the court for consideration had progressed through the normal appellate mechanisms to reach the court, and involved interpretation and application of article 23(3) of the Constitution. Therefore, the court was well clothed with jurisdiction to determine the appeal.
Each of the appellants recorded a consent on liability on January 11, 2012. Therefore, the only issue for determination was the assessment of damages for the constitutional violations. The 1st appellant did not specifically plead for the amount of Kshs 146,603,604.15 in the High Court, as enumerated in the instant appeal. Further, he did not specifically claim any reliefs in regard to the losses suffered by the Nairobi Law monthly as a result of the violation of his fundamental rights.
In the absence of specific pleadings, evidence if any, produced by the parties could not be considered. Therefore, KPMG’s report produced by the 1st appellant could not be considered as there was no specific prayer for the award of damages for losses suffered by the Nairobi Law Monthly in the High Court. That claim had not gone through the appropriate appellate mechanisms. Therefore, the court was constrained not to interrogate the same.
The court in addition to exercising its jurisdiction under article 163(4)(a) of the Constitution was also mandated under article 23(3) of the Constitution, and section 21 of the Supreme Court Act to grant the appropriate reliefs to remedy a violation of the fundamental rights and freedoms.
Liability was admitted and a consent recorded. In essence, the Attorney General acknowledged willful and intentional violation of the 1st appellant’s rights. In the circumstances, a remedy, even where it was not considered compensatory and particularly when there was a willful and intentional violation of constitutional rights, needed to meaningfully vindicate the rights and freedoms of a claimant.
The parameters to be considered in assessing damages for constitutional violations were:

    The duration of the claimant’s detention.
    The level of physical and mental suffering endured by the claimant.
    The degree of responsibility of the individual(s) responsible for the suffering caused to the claimant.
    The extent of the action or inaction complained of, and any other incidental rights that may have been violated as a consequence of the first breach(es).
    Award was discretionary and would depend on the facts and the circumstances of each case.
    Award was not compensatory or punitive but a vindication of the violated rights.

The Government, through the Attorney General admitted 100% liability for violating the appellants' fundamental rights and freedoms. In the peculiar circumstances of the case, referring the matter back to the High Court for purposes of assessing general damages while the instant court had the power to grant appropriate reliefs for constitutional violations, would further delay access to justice. The issue of general damages had been the subject of determination by both the High Court and the Court of Appeal and therefore, nothing impeded the court from making such orders for general damages, as it deemed fit.
It was the 1st appellant’s case that he was held at various prisons including Kamiti Prison. Unlike other political detainees, he was held in solitary confinement where insane prisoners were held for about 3 years; denied basic rights for instance lack of proper medical care; tortured at Nyayo House, where he was held in a waterlogged underground cell for ten days, his chest and ears were blocked as a result, the toenails fell off and he was paraded naked before 20 masked security officers. Those extreme circumstances ought to have been taken into account when crafting appropriate remedies.
The amounts awarded to the 1st appellant by the High Court and affirmed by the Court of Appeal were manifestly low to justify interference.
There was no claim for Kshs 799,515, 675.59 and costs of US$77,626.00 at the High Court by the 2nd appellant. The amount subject of determination by the two superior courts was Kshs 95,000,000 and as such, the court limited its analysis to Kshs 95,000,000.  The Attorney General admitted liability for the losses suffered by the Finance Magazine as a result of the constitutional violations meted against 2nd appellant. As such, the only duty due to the trial court was to assess quantum.
A company was a separate legal entity from its owners, and had a right to sue and be sued as a separate and distinct personality, and an action for losses and damages suffered by the company should be brought by the company. However, there were circumstances under which a party could claim for losses suffered by the company as a result of constitutional violations visited upon that party.
The 2nd appellant’s claim for special damages suffered by the Finance Magazine was based on violations that constituted an infraction to his own right to property. Further, his claim was not a claim in private law for damages but a claim in public law for compensation for the deprivation of fundamental rights, and freedoms and compensation could include loss of earnings consequent due to the constant police harassment and incarcerations.
The 2nd appellant’s claim was a public law claim for infractions to his rights under the Constitution, and therefore, the principles enunciated in Salmon case did not apply. The 2nd appellant was entitled to damages for loss of income, arising from the losses incurred by Finance Magazine, if he could prove and quantify that his losses were personal and distinct losses which were directly linked to a claim with reference to the loss of income suffered by the company, provided that he did not fall into the trap of regarding the loss to the company as automatically and necessarily equivalent to their personal loss.
To prove his loss, the 2nd appellant sought to rely on a report prepared by KPMG. The High Court made no finding at all on the report, explaining that having disallowed the claim by Finance Magazine, it was of no consequence to interrogate the report. That was a misdirection as the 2nd appellant’s claim was premised on the report. Therefore, the losses suffered by the Finance Magazine was as a result of an infraction of the 2nd appellant’s fundamental rights and freedoms. Consequently, his prayer was allowed but subject to the matter being referred back to the High Court to determine the 2nd appellant’s claim and quantum for special damages based on the evidence on record.
The 3rd appellant failed to specifically claim losses suffered by the Beyond Magazine and the People Daily at the High Court. Therefore, that claim must fail. That was because the claim had not progressed through the appropriate appellate mechanism.
The 1st appellant filed an appeal arising from the conviction and sentence by the Magistrate’s Court being Criminal Appeal Number 1762 of 1984. The 1st appellant’s claim having undergone the rightful appellate channel as anticipated in Kenya’s laws and there being no evidence tendered to show that his trial and the subsequent appeal was unfair or violated his rights, the appellants claim seeking to set aside his conviction was dismissed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/78/eng@2022-02-17
Petition 1 of 2021,National Rainbow Coalition Kenya (NARC Kenya) v Independent Electoral & Boundaries Commission; Tharaka Nithi County Assembly & 5 others (Interested Parties) (Petition 1 of 2021) [2022] KESC 6 (KLR) (17 February 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",17 February 2022,2022.0,Nairobi,Civil,National Rainbow Coalition Kenya (NARC Kenya) v Independent Electoral & Boundaries Commission; Tharaka Nithi County Assembly & 5 others ,[2022] KESC 6 (KLR)               ,,"Following the declaration of the results of the 2017 general election, the petitioner had expected that its candidates would be nominated in Tharaka-Nithi, Mandera, Garissa, Embu, Meru and Nairobi counties (interested parties) in fulfillment of the gender top-up rule in accordance with article 177 of the Constitution of Kenya, 2010 (Constitution). According to the petitioner, to the contrary, the Independent Electoral Boundaries Commission (the respondent) adopted a policy and criteria for gender top-up list that discriminated against the petitioner and favoured certain political parties.Aggrieved, the petitioner approached the High Court with an amended constitutional petition seeking among others, orders that; a declaration is issued that the petitioner was entitled to access to the information upon which the names of the nominated members of the interested parties’ counties were selected, and a declaration be issued that the petitioner was entitled to have its members especially women in its party lists nominated in the county assemblies of the interested parties.In response, the respondent filed a notice of preliminary objection challenging the jurisdiction of the High Court to entertain the petition, on among others the ground that it contravened section 6 of the Elections (Parliamentary and County Elections) Petition Rules, 2017 which required an election court to be gazetted by the Chief Justice. The High Court sustained the objection. Aggrieved by the High Court’s decision, the petitioner moved to the Court of Appeal, which affirmed the decision of the High Court, hence the filing of the instant appeal at the Supreme Court.","Jurisdiction was everything and without it, a court had no power to make one more step. In addition, where the Constitution exhaustively provided for the jurisdiction of a court, the court had to operate within those limits. It could not expand its jurisdiction through judicial craft or innovationAppeals from the Court of Appeal lay to the instant court under article 163(4) of the Constitution specifically, either on matters of constitutional interpretation and application or upon certification, by either the Court of Appeal or the instant court, on matters of general public importance. The instant appeal was expressed to be brought pursuant to the Constitution, section 15(2) of the Supreme Court Act and other enabling provisions of the law. It, therefore, did not specify the provision of the Constitution upon which it was brought. The court was only properly moved by invoking the correct constitutional or statutory provision that clothed it with jurisdiction.
Given the specialized nature of the jurisdiction of the Supreme Court as far as appeals from the Court of Appeal were concerned in terms of article 163(3) of the Constitution, it was of paramount importance to identify on which one of the two limbs (a) or (b) the court was being moved. The court would not entertain an appeal on an ordinary question in contest.
To admit an appeal under article 163(4)(a) of the Constitution, it was not the mere allegation in pleadings by a party that clothed the court jurisdiction. For the court to entertain an appeal from the Court of Appeal on the question of constitutional interpretation or application, it had to be shown that the issues of contestation in both courts below revolved around the interpretation or application of the Constitution. In other words, an appellant had to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party had to be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation of the Constitution, it could not support a further appeal to the Supreme Court under the provisions of article 163(4)(a).
The impugned decision of the Court of Appeal had no bearing on the merits of the original main cause as laid before the High Court. The preliminary objection raised at the High Court itself did not invoke any issue that would require constitutional interpretation or application. It was brought pursuant to the provisions of the Elections Act and the Rules made thereunder. Naturally, the decisions of the courts below concentrated on the point raised in the preliminary objection and only referred to the Constitution in so far as the jurisdiction of the High Court was concerned.
The only argument around the Constitution raised in the petition was about article 165 of the Constitution; that the High Court erred in failing to find that its jurisdiction to supervise administrative and quasi-judicial functions of the respondent under that article could never be ousted by the provisions of the Elections Act. Clearly, that was not the question presented to the High Court and upon which that court and indeed the Court of Appeal’s determination had been founded.
By failing to observe the well-known practical guidelines on the court’s admission criteria for appeals from the Court of Appeal; by failing to outrightly invoke the particular jurisdiction of the court; by leaving the whole question on the court’s jurisdiction to conjecture; and by failing to show that the issues of contestation in the courts below revolved around the interpretation or application of the Constitution, the petition was incompetent and the court had no jurisdiction to entertain it.
Article 23(3)(f) of the Constitution declared that a court could grant such reliefs as an order of judicial review. Mandamus, by section 8 of the Law Reform Act, was indeed an order. Therefore, including mandamus after the word “order” was merely to create an artificial distinction where in fact or in law no real difference existed.
An order of mandamus would compel the performance of a public duty which was imposed on a person or body of persons by a statute and where that person or body of persons had failed to perform to the detriment of a party who had a legal right to expect the duty to be performed.
The true character of the appellant’s cause, despite being disguised as a constitutional petition, was in fact an election petition, questioning the validity of nomination of elected members of the county assemblies who had been gazetted; and that such a challenge could only be commenced in the election court, in that case, under section 75(1A) of the Elections Act. The gazette notice of party nominees signified the completion of the election by nomination. The process came to an end and the county assemblies were constituted.
The court did not agree with the position that the appellant had two legal pathways to come to court; by invoking the Elections Act or judicial review under the Constitution; that it was open to the court to dismiss a relief not properly brought but consider those that touched on the violations of the Constitution; and that, that way the court would be doing substantive justice without undue regard to procedural technicalities under article 159 of the Constitution. In the circumstances, considering the clear cause of action and the reliefs in the amended petition, there were no two pathways for the appellant. The appellant chose a pathway that could only and inevitably lead it, as it had, to a dead end.
Constitutional remedies were sacrosanct and transcendental in importance to be invoked in all and conceivable situations. They were reserved only for true and verifiable breaches of the Constitution and not for correction of errors which could be resolved by alternative means of redress provided in statute. Though constitutional provisions could be breached in the course of the elections, that per se would not convert the nature of dispute from an election contestation to a constitutional question.
Where there existed an alternative method of dispute resolution established by legislation, the courts had to exercise restraint in exercising their jurisdiction conferred by the Constitution and had to give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance. The cause was instituted solely for the purpose of avoiding the necessity of applying in the normal way to the election court for the appropriate remedy under the Elections Act.
Article 159(2)(d) of the Constitution had repeatedly been invoked as a cure-all, a magic bullet even where, as in the instant case, it was inapplicable. It was never the intention of the framers to oust the obligations of litigants and parties to comply with the law or procedural imperatives as they sought justice from the courts.
The proceedings were conducted virtually. Whether in open or virtual court, court proceedings remained dignified and solemn. As part of courtroom customs, etiquette and decorum had to be observed by both the court and counsel, who were officers of the court. The highest standard of behavior was expected of advocates who appeared before the apex court and judges in that court would demand the observance of and adherence to those customs, because arguably, they engendered public respect, authority, and dignity of the court and advocates as representatives of a learned profession. Counsel representing the 4th interested party was, of all the counsel virtually appearing before the court on the morning of the hearing, the odd one out. The court could neither see nor hear him on account of his inappropriate attire. Since the establishment of the court, it had been its tradition that counsel appearing at hearings in open court or virtually before judges who were themselves robed had to be robed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/6/eng@2022-02-17
Petition 25 of 2019,Senate & 2 others v Council of County Governors & 8 others (Petition 25 of 2019) [2022] KESC 7 (KLR) (Constitutional and Human Rights) (17 February 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",17 February 2022,2022.0,Nairobi,Civil,Senate & 2 others v Council of County Governors & 8 others,[2022] KESC 7 (KLR)               ,,"At the High Court, the respondents challenged the constitutionality of section 91A (that established, for each county, a County Development Board (Board), section 91B (that provided for the operational expenses for the Boards), and section 91C (that created an offence for unlawful obstruction, or undermining of the Board from discharging its functions) of the County Governments (Amendment) Act No. 13 of 2014.Both the Court of Appeal and the High Court were in agreement that the impugned amendment did not meet the test of constitutionality and were in violation of articles 1(3)(b), 1(4), 6(2), 10(2), 179(4), 183, 185(1), 189(1) and 225(1)(i) of the Constitution as they were antithetical to the oversight role of the Senate, interfere with the legislative power of the county assembly, violated the functional integrity of county governments and introduced unnecessary penal sanctions. For those reasons, the courts unanimously declared the amendment unconstitutional, void, and invalid.Dissatisfied with the decisions of the High Court and Court of Appeal, the appellants filed the instant appeal, challenging the decisions of the superior courts on the grounds that Kenya was a federal and not a unitary state and that the disputed amendments were constitutional. ","
    By the design and architecture of the Constitution and by the language of article 1(3) and (4) of the Constitution, the people of Kenya intended that their sovereign power be exercised at two levels of government: the national and county levels. The Constitution also declared that the two levels were distinct but interdependent. They were bound to conduct their mutual relations on the basis of consultation and cooperation. However, to avoid gridlock in their operations, even as they consulted and cooperated, the two levels of government had to perform their functions and exercise their powers in a manner that respected the functional and institutional integrity of each other. At the county level, the county government consisted of a county assembly and a county executive. The executive authority at the county was vested in, and exercised by a county executive committee, consisting of the county governor, the deputy county governor, and members appointed by the county governor, while the county assembly exercised legislative authority at that level. The form, content, and timing of budgets of the national and county governments had to be coordinated through consultations.
    A court could not expand its jurisdiction through judicial craft or innovation. Parties could not, by consent or acquiescence, confer jurisdiction upon a court. To bring the appeal to the Supreme Court within the terms of article 163(4)(a) of the Constitution, it had to be demonstrated that the issues of contestation revolved around the interpretation or application of the Constitution. It was the interpretation or application of the Constitution by the Court of Appeal that formed the basis of a challenge to the Supreme Court. Where the dispute had nothing or little to do with the interpretation or application of the Constitution, the Supreme Court under article 163(4)(a) would have no jurisdiction to entertain an appeal brought under article 163(4)(a).
    The instant appeal met the frontiers of the appellate regime of the Supreme Court embodied under article 163(4)(a) of the Constitution. From the High Court to the Supreme Court, the central issue had been whether the amendment to the County Governments Act was inconsistent with the principles of the Constitution. The instant appeal fell within the ambit of article 163(4)(a) of the Constitution, and the Supreme Court had the jurisdiction to determine it.
    Any law, including customary law, that was inconsistent with the Constitution was void to the extent of the inconsistency, and any act or omission done or not done in contravention of the Constitution was also outrightly invalid. Once declared invalid, a statute or statutory provision, to the extent of the declaration, ceased to be law.
    Questions entailing the interpretation and application of the Constitution had to, for good order and efficiency in the administration of justice commence at the High Court, with the effect that the interpretation of the Constitution by both the Court of Appeal and the Supreme Court was limited to the appellate stages.
    In construing whether statutory provisions offended the Constitution, courts had to subject the same to an objective inquiry as to whether they conformed with the Constitution. To fully comprehend whether a statutory provision was unconstitutional or not, its true essence had to also be considered. The court had to consider the purpose and effect of such a statutory provision. A purposive interpretation should have been given to statutes to reveal the intention of the legislature and the statute itself.
    Both the purpose and effect were relevant in determining whether or not the amendment was constitutional. An unconstitutional purpose or an unconstitutional effect could lead to the invalidation of legislation. The words used and the language of the provision or provisions in question had to be given their literal meaning, and the court had to seek to identify the mischief sought to be remedied by considering the historical background of the legislation.
    The provisions of article 259 of the Constitution required the Constitution to be interpreted in a manner that promoted its purposes, values, principles and contributed to good governance.
    The County Development Board’s (the Board('s)) membership consisted of, among others, the Senator, the member of the National Assembly, the Woman Representative, the Governor and the Deputy, the Leaders of the Majority and Minority parties in the County Assembly, the Chairperson of the County Assembly Committee responsible for finance and planning and that responsible for budget, the County Commissioner, and the head of a department of the national government or the county government or any other person invited by the Board to attend a specific meeting of the Board. The senator was designated the chairperson of the Board and convener of the Board's meetings, the governor was to deputize him, while the County Secretary was the secretary of the Board. The main object for the establishment of the Boards was expressed in the amendment to be a forum for consultation and coordination between the national and the county governments on matters of development and projects.
    The intention was informed by articles 6(2), 10, 174, 220(2)(c) and 232 of the Constitution that stipulated that the governments at the national and county levels were distinct and interdependent and were to conduct their mutual relations on the basis of consultation and cooperation.
    The commonality of purpose of the two levels of government and the need to ensure harmony in the discharge of their respective functions, could only be achieved through consultation and cooperation. The two levels were bound by national values and principles of governance espoused in article 10 and guided by the objects of devolution in article 174 of the Constitution. In the process of budgeting and planning, consultation between the national government and county governments was a key requirement under article 220(2)(c). The form and manner of such consultations were provided for in the national legislation. In the process of policymaking, the people had to be involved.
    Public participation or consultation were constitutional imperatives. Article 196(1)(b) of the Constitution demanded of the County Assemblies, in their legislative duties, to facilitate public participation and involvement. On the other hand, article 201 required that in all matters of public finance, there had to be openness and accountability, including public participation. Years of deeply entrenched disparities between regions in Kenya; low level of responsiveness and accountability by the government to citizens, had to have led to the enactment of sections 87 to 115, 125, 128, 131 and 137 of County Government Act, sections 47, 91, 99 and 100 of the Public Finance Management Act 2012 and sections 21 and 22 of the Urban Areas and Cities Act, all of which emphasized the need for public participation in national and county planning, budget priorities and accountability. The establishment of the Boards was driven by an honest and noble purpose; to provide a forum, at the county level, for engagement, consultation and coordination of national and county governments’ development programs.
    Mere participation of members of Parliament in the boards did not breach the doctrine of separation of powers. The governments at the national and county levels had to conduct their mutual relations on the basis of consultation and cooperation; the two levels of government had to cooperate in the performance of their functions and in the exercise of their powers and, that for that purpose, they could set up joint committees and joint authorities and that the form and manner of consultation between the national government and county governments in the process of preparing plans and budgets was to be prescribed by national legislation. Those were express provisions of articles 6(2), 189(2) and 220(2)(c) of the Constitution.
    Section 91(f) of the County Governments Act, before it was amended by section 3 of the Amendment Act provided for modalities, platforms, town hall meetings, budget preparation and validation fora for citizens to participate in the activities of the counties and enjoined the counties to facilitate the establishment of structures for citizen participation including avenues for the participation of peoples’ representatives including but not limited to members of the National Assembly and Senate. Subsection (f) above was deleted by the amendment effectively removing the peoples’ representatives; members of the National Assembly and Senate from the county platforms envisaged by that section. It was informed by the fact that their participation had been moved to a new platform, the Board. With the deletion of (f) above, the modalities and platforms that were to be established under the section were reserved for citizen participation. The entire Part VIII was devoted to citizen participation in counties. The effect of the courts declaring the amendment unconstitutional restored section 91(f).
    There was nothing irregular in the members of parliament and national executive engaging, consulting, cooperating, and coordinating with the devolved units for the sake of protecting devolution and achieving its objects. The engagement, consultation, cooperation, and coordination envisaged had to be done in a manner that respected the functional and institutional integrity, constitutional status, and institutions of the county government, as decreed by article 189(1) of the Constitution.
    There were many examples of the existence in the law of multi-stakeholder platforms or forums which were set up as vehicles to promote harmonious coexistence between the two levels of government so as to have a holistic edifice. Examples included the National and County Government Coordinating Summit, the Inter-Governmental Budget and Economic Council, the Council of County Governors and the County Budget and Economic Forum. The two levels had to embrace devolution architecture by displaying collaborative coexistence and interdependence so as to avoid any possible constitutional discord. At all times, that arrangement had to maintain a balanced structure, where the national government did not usurp, undermine or interfere with the mandate of or with matters that exclusively fell within the domain of county governments.
    The limitations had to be borne in mind even as the special role of the Senate in the devolved governance system was acknowledged. Under article 96(1) of the Constitution, the Senate represented the counties and served to protect their interests. The Senate participated in the law-making function of Parliament by considering and approving Bills concerning counties. It had the power to determine the allocation of national revenue among counties, and to exercise oversight over the use of those resources. To discharge those responsibilities, the Senate was not expected to relocate to the counties to exercise supervisory powers at that level. That would be intrusive into the functional and institutional integrity of the county government and unacceptable overreach. It was not to be involved in the administrative nitty-gritty details of the counties. Its oversight, as indeed its legislative roles, were to be exercised in accordance with the Constitution and the law.
    If the presence of members of parliament and representatives of the national executive in the Boards was merely to contribute by way of public participation in matters affecting counties, there would be no concern as their given views per se could not violate the Constitution.
    Construing section 91A(2)(b) and (c) of the amendment; that the Board would consider and give input on any county development plans before they were tabled in the county assembly for consideration and to consider and give input on the county annual budget before they were tabled in the county assembly for consideration; the word “before”, taking everything into context, could only connote a condition antecedent, a precondition to the tabling of the county development plans and county annual budget. To that extent, the amendment donated excessive powers to the Board beyond what the Constitution permitted, thereby subordinating county organs.
    The second grievance was the role of the governor, vis-à-vis, the Senator for the county. The latter, was the chairperson of the Board and convener of the Board's meetings, according to section 91A(1)(a). The Governor, though the chief executive of the county government, was named as the vice-chairperson, to deputize the Senator in the Board.
    The Constitution did not contemplate a situation where the chief executives of the counties, the governors were inferior in rank to senators in the execution of county functions. Section 91A(1)(a) and (d) was antithetical to articles 179(4) (5) and (6) of the Constitution to the extent that it altered the hierarchical structure of the county government. The governor was the chief executive of the county, and the only time someone else besides him could exercise the functions of that office was when he was absent. Article 179(5) of the Constitution permitted the deputy county governor, in the circumstances to step in and act in the office of Governor. Members of the county executive committee, on the other hand were only accountable to the county governor for the performance of their functions and exercise of their powers.
    It was inconceivable as it was absurd to have a Senator whose functions were clearly delineated by the Constitution, and who was expected to provide oversight of the county government,  at the same time take charge of a Board which was essentially a county organ. That was a legislative overreach that did not honour the constitutional guardrails that donated specific and distinct powers to the Senate and the devolved units.
    Article 186 of the Constitution demanded that a function or power not assigned by the Constitution or national legislation to a county was a function or power of the national government, and vice versa. The amendment, in purporting to impose on the Governor a principal, failed to meet the test of cooperation, coordination, and consultation. It failed to respect the functional and institutional integrity of the county government, its institutions, and its constitutional status, as stipulated in article 189. Section 91A of the amendment was inconsistent with and in breach of articles 96 (2) and (3), 179 and 185 of the Constitution, and were, to that extent, void and invalid. Though the intended purpose for the amendment was virtuous, its implementation was bound to produce an unconstitutional effect.
    It was an offence under section 91C of the Amendment Act to knowingly and unlawfully obstruct, hinder, undermine or prevent the Board from discharging its functions. The offence was punishable, upon conviction, by a fine not exceeding one million shillings or imprisonment for a term not exceeding one year, or both.
    The introduction of criminal penalties and sanctions in civil legislation were an increasingly common feature in Kenya’s legislation today. The Environmental Management and Co-ordination Act No. 8 of 1999, the Leadership and Integrity Act No. 19 of 2012, and the Physical and Land Use Planning Act No. 3 of 2019, were some of the examples of such laws. By imposing penal sanctions upon persons who contravened such laws, the legislature sought to ensure compliance with the key provisions of its statutes. Their presence in civil legislation per se did not invalidate them.
    There was no nexus between the offence created by section 91C of the Amendment Act and the amendment which only established the Boards. There was no mischief that the provision was intended to cure. The provision was intended to transform the Board into a decision-making organ whose authority, if undermined or hindered, was punishable in law. That appeared to elevate the Board to a pedestal higher than the Governor, County Executive and County Assembly. So that any action or omission to act in a certain way by any of the county organs would be interpreted to constitute obstruction or hinderance so as to attract criminal sanction. If the Board’s input or advice on the county development plans and the annual budget were not taken on board at the time they were tabled in the county assembly for consideration, those involved including the county assembly and the county executive committees could be in violation of section 91C and risk punishment. That would undermine the constitutional administrative, legislative and decision-making powers and authority of the governors, County Assemblies and the County Executive Committees.
    No such outcome was intended by the Constitution when it created different offices in the counties or when it decreed consultation between the national and county governments in the process of preparing plans and budgets. Section 91C not only failed the test of proportionality but was also outrightly excessive, arbitrary, unfair, and based on irrational and unknown considerations. Section 91C of the Amendment Act was inconsistent with article 189(1)(a) of the Constitution.
    Whereas there was a duty on all public offices under article 201(d) of the Constitution to use public money in a prudent and responsible way, so long as the establishment and functions of the Boards could be justified, there would be nothing objectionable for the county governments to meet the Boards’ operational expense.
    The independence of national and county governments was provided for through a devolution model that rested upon a unitary, rather than a federal system of government. The Senate (which brought together county interests at the national level) and the National Assembly (a typical organ of national government), dealt expressly with matters affecting county government; and certain crucial governance functions at both the national and county levels dovetailed into each other and operated in unity.
    The Constitution did not alter Kenya’s constitutional design from unitary to federal. The devolved system in Kenya was based on a unitary system of Government that decentralized key functions and services to the county unit. The Kenyan State model was not federal in nature and did not envisage the workings of a county as a politically and financially independent state. Although Kenya was a constitutionally devolved State, it did not have a federal constitution and that the county governments were not independent but semi-autonomous and an integral part of the unitary state, exercising delegated sovereign power for purposes of governance.
    While the court could depart from its previous decision if it was shown that such decision was given per incuriam, it was a serious suggestion that the apex court made a decision through ignorance or was ill informed about the applicable law. The decision of a superior court was not to be perceived as having been arrived at per incuriam, merely because it was thought to be contrary to some broad principle, or to be out of step with some broad trend in the judicial process.
    The test of per incuriam was a strict one, the relevant decision having not taken into account some specific applicable instrument, rule or authority. A decision per incuriam was one rendered in ignorance of a constitutional or statutory prescription, or of a binding precedent: but if a decision was such, that, by and of itself, did not, perforce, render it inappropriate, or mistaken, or wrong, for the decision could rest upon its own special merits, and be in every respect sustainable as a matter of principle. It could not be said that the Supreme Court in its previous decisions arriving at the conclusion that the Constitution did not create a federal government, the court did not take into account some specific applicable instrument, rule or authority, or that all those decisions were rendered in ignorance of a constitutional or statutory prescription.
    By article 163(7) of the Constitution, all courts, other than the Supreme Court itself, were bound by the decisions of the Supreme Court. Save for the slip rule in section 21(4) of the Supreme Court Act, neither the Constitution, nor the Supreme Court Act conferred upon the Supreme Court, powers, to review its decision. As the final court, the Supreme Court would not review its own judgments, rulings, or orders, except in circumstances contemplated by section 21(4) of the Supreme Court Act, to correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order; that once it makes a final decision, the court became functus officio, and would not entertain requests for further re-consideration of its decision, because litigation had to come to an end.
    Notably, in exercise of its inherent powers, the Supreme Court could, upon application by a party, or on its own motion, review, any of its judgments, rulings or orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances were to be limited to situations where:
        the judgment, ruling, or order, was obtained, by fraud or deceit;
        the judgment, ruling, or order, was a nullity, such as, when the court itself was not competent;
        the court was misled into giving a judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
        the judgment or ruling was rendered, based on a repealed law, or as a result of, a deliberately concealed statutory provision.
    Just as it was a serious matter to suggest that the decision of the Supreme Court was made per incuriam, it was equally not a simple matter for the Supreme Court to depart from its decisions that had been, over time applied as ratio decidendi, binding the courts below. For the Supreme Court to reconsider its decision, it had to be not to only appropriately moved but also the grounds upon which it was moved had to be weighty.
    The phrase, ‘when properly moved’ entailed that for the Supreme Court to depart from its previous decision, or for it to review its decision, it could only be moved by a formal application.
    Questions entailing the interpretation and application of the Constitution had to for good order and efficiency in the administration of justice commence at the High Court, with the effect that such a question could only be raised before the Court of Appeal and the Supreme Court as an appeal from the decision of the High Court and eventually to the Supreme Court as a challenge to the determination of the Court of Appeal. That process was not followed. The issue, though important, was not diligently prosecuted.
    To move the court to reconsider its previous decisions, an appropriate formal application had to be made to it. Had the 55th respondent considered that question to be important, it ought to have raised it in the first instance before the High Court, or taken out a motion before the Supreme Court which would have afforded all parties sufficient opportunity to respond comprehensively to the contention. Raising the question for the first time in the Court of Appeal, the Court of Appeal could not overturn Supreme Court decisions which bound it in terms of article 163(7) of the Constitution.
    Whereas it was essentially in public interest that a final judgment of the apex Court in the land should not be open to challenge, a departure from that principle could be justified only when circumstances of a substantial and compelling character made it necessary to do so or where to decline a request to reconsider the judgment would be oppressive or occasion irremediable injustice.
    No additional material had been presented for the Supreme Court to reconsider the position that the Constitution did not create a federal state. The preamble to the Constitution summed up the true expression of the will of the people of Kenya on the systems of government it created. The Constitution retained its supremacy, the sovereignty and unity of the people, as well as the oneness and indivisibility of the nation.
    The County Governments (Amendments) Bill 2021, Senate Bill No. 38 of 2021 (the Bill) was an attempt to address the concerns brought about by the Amendment Act and to comply with the courts' decisions. The Bill, according to the Senate Bill Tracker Portal, after its introduction in the Senate went through the 1st reading and was referred to the Devolution and Inter-Governmental Relations Committee of the Senate. It was scheduled for the 2nd reading. The court did not know the current status of the Bill.
    The Bill had renamed the Board, “County Leaders Forum” (Forum.) It made the Governor the chairperson and the senator the vice-chairperson of the Forum. The language used in describing the functions of the Forum were carefully chosen to avoid the impression that the Forum had any executive mandate. The functions were purely advisory. The fate of sections 91B and 91C was unclear as the Bill, in so far as the instant petition was concerned, only amended section 91A of the Amendment Act. Legislative steps were being taken to align the Amendment Act to the Constitution.
    Participation permitted citizens to take part in decision-making in matters that affected them. Members of Parliament (National Assembly and Senate) had specific and defined roles in the Constitution and relevant statutes, vis-à-vis, the counties. Senators represented and protected the interests of the counties through their law-making function by considering and approving Bills concerning counties. They also determined the allocation of national revenue among counties, in addition to providing oversight over national revenue allocated to the counties.
    Whereas the Senators played those roles in the Senate, at the national level, the county assembly played an oversight role over the county’s fiscal management at the county level. While the two levels of government had to work in consultation and cooperation with each other, the Senators could not oversight the County governments at the county level. That role was reserved for the County Assembly. They could not be involved in the co-ordination of programs that were purely county programs, or county project approvals or actual implementation of county projects as those were county executive functions. It was untenable for Senators, who oversight county resources from the national government, to convene and chair county committees. That was why the Constitution proclaimed that, as between the two levels of government, there had to be respect for the functional and institutional integrity.
    Parliament, as the institution with the legislative powers, was constitutionally bound to enact laws that assisted and strengthened the county governments in the discharge of their roles. Laws made pursuant to that power were never to have the effect of undermining the running of the county governments. Conversely, other organs of the national government had to keep to their lanes as drawn by the Constitution and utilize the structures and channels in the Constitution to carry out their legislative and oversight duties and to trust the competence of the county governments’ structures and organs to discharge their functions.
    Public participation was encouraged as a constitutional principle and as a national value. It permitted the citizens and their political representatives to take part in decision-making in matters that affected them, like county planning, budget priorities, and accountability. In enacting the County Governments (Amendment) Act, the legislature may have had the noblest of intentions. However, that intention and the effect it produced had not met the constitutional test of validity.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/7/eng@2022-02-17
Petition 34 of 2014,Shollei v Judicial Service Commission & another (Petition 34 of 2014) [2022] KESC 5 (KLR) (17 February 2022) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",17 February 2022,2022.0,Nairobi,Civil,Shollei v Judicial Service Commission & another,[2022] KESC 5 (KLR)               ,,"On September 10, 2013, the 1st respondent (the Judicial Service Commission (JSC)) wrote to the appellant inviting her to respond in writing, to allegations about procurement, employment, administration, finance, and corporate governance within 21 working days. The appellant responded to the allegations through an interim and final report. JSC then scheduled proceedings for hearing on October 16, 2013, at which hearing the appellant raised objections based on impartiality, bias, and JSC’s jurisdiction to institute proceedings against her. JSC overruled the objections and set the proceedings for hearing.The appellant's efforts to have the matter adjourned on that date to allow her to further prepare her defense and call witnesses bore no fruit. JSC, vide its letter dated October 18, 2013, resolved to terminate the appellant’s appointment, and removed her from office as the Chief Registrar of the Judiciary. In that letter, JSC stated that following the disciplinary proceedings initiated by itself as per the allegations set out in its letter dated September 10, 2013, it was satisfied that the requirements set out under section 12(1)(b), (c), (d), (f) and (g) of the Judicial Service Act (the Act) had been met.Aggrieved, the appellant filed a petition at the High Court, which was later transferred to the Industrial Court, claiming that JSC in terminating her employment, violated her constitutional rights to fair trial; fair administrative action; public hearing; presumption of innocence; to be informed of charges in sufficient detail and to have adequate time to prepare her defense; to be heard by an impartial tribunal; due process of the law; access to information; and human dignity. The appellant also pleaded that in reaching its decision, JSC exercised powers it did not have.","
    The Supreme Court’s appellate jurisdiction was set out under article 163(4) of the Constitution. Section 15(1) of the Supreme Court Act provided that appeals to the court would be heard only with the leave of the court. Section 15(2) specified that section 15(1) would not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution. An appeal had to originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant had to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party had to be faulting the Court of Appeal based on such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court under article 163(4)(a).
    The test to evaluate the jurisdictional standing of the court in handling the appeal was whether the appeal raised a question of constitutional interpretation or application and whether the same had been canvassed in the superior courts and had progressed through the normal appellate mechanism so as to reach the court by way of an appeal as contemplated under article 163(4)(a) of the Constitution.
    A perusal of the record (volume iv of the record of appeal age 1919-1923) indicated that the High Court interpreted and applied articles 161, 226(2) 227, and 172(1) (c) of the Constitution to arrive at the conclusion that JSC had jurisdiction to institute disciplinary proceedings against the appellant. On page 1953 Volume IV of the record of appeal, the High Court concluded that JSC not only acted ultra vires the Act and the Regulations thereunder but also violated the constitutional rights of the appellant under articles 27(1), 35(1)(b), 47(1) and (2), 50(1) and (2) and 236(b) of the Constitution.
    At the Court of Appeal, from the record (volume v at pages 2127 -2135), the Court of Appeal interpreted and applied several articles of the Constitution such as article 164(3)(b), 162(2)(a), 23(1) and (3), 20(3), 165(3)(b) to arrive to the conclusion that the Industrial Court and the appellate court were conferred with the jurisdiction to determine the matter. The court also interrogated articles 172(1)(c), 259(11) and 252 to decide that JSC had jurisdiction to initiate proceedings against the appellant suo moto without any recommendations or report from any external oversight bodies. Further, the Court of Appeal interrogated articles 27(1), 35(1)(b), 47(1) and 47(2), 50(1) and 50(2) and 236(b) of the Constitution to find that the High Court erred in its findings  regarding the violation of the constitutional rights of the appellant. The appeal fell within the realm of article 163(4)(a) of the Constitution and was properly before the court.
    The Fair Administrative Action Act No. 4 of 2015 was assented to on May 27, 2015, and came into force on June 17, 2015, almost 2 years after the cause of action. Therefore, the court’s finding was premised on the applicable law as at the time the cause of action arose. Article 47 of the Constitution guaranteed every person the right to administrative action that was expeditious, efficient, lawful, reasonable, and procedurally fair. If a right or fundamental freedom of a person had been or was likely to be adversely affected by administrative action, the person had the right to be given written reasons for the action.
    Article 236(b) of the Constitution provided that a public officer would not be dismissed, removed from office, demoted in rank, or otherwise subjected to disciplinary action without due process. Article 240 of the Constitution defined a public officer as any State officer; or any person, other than a State Officer, who held a public office. From the list provided under article 240, the appellant was not a State officer.
    A public office was defined under article 240 of the Constitution to mean an office in the National Government, a county government, or the public service, if the remuneration and benefits of the office were payable directly from the consolidated fund or directly out of money provided by Parliament. Although article 236(b) of the Constitution was pleaded at the Industrial Court, the same was not applicable either to the appellant or to JSC.
    Section 12(2) of the Judicial Service Act provided that before the removal of the Chief Registrar under section 12(1), the Chief Registrar was to be informed of the case against him or her in writing and was to be given reasonable time to defend himself or herself against any of the grounds cited for the intended removal. From the record of appeal, the appellant was duly informed of the case against her.
    In usual judicial proceedings, the reasonable timeline for filling a defense in courts was 14 days unless time was enlarged by a court. The appellant was accorded a period of 39 days to respond to her claim which was reasonable.
    Under article 47 of the Constitution, a person against whom an administrative action was being taken had a right to be given written reasons for the action if a right or fundamental freedom of that person had been or was likely to be adversely affected by an administrative action. The “if” in clause 2 of article 47 implied that giving written reasons for an administrative action was not an automatic right, it had to be demonstrated that a person had been or was likely to be affected by an administrative action.
    The burden to demonstrate the effect of an administrative action lay with the person against whom the action had been taken, and in the instant case, it was the appellant. The appellant discharged that burden vide a letter from her advocates asking for among other things, reasons for the appellant’s removal. The letter further indicated that the demand was made pursuant to articles 22, 35, 48, 73 and 159 of the Constitution.
    The JNR v Judicial Service Commission, Petition 92 of 2019 [2019] eKLR (JNR case) could be distinguished from the instant case, in that, some records in the JNR case were supplied by JSC to the petitioner after the court had given directions unlike in the instant case where there were no such orders. Furthermore, the court found that the right to access to information could be restricted in terms of legislation, and that apart from setting out the impugned regulation, the petitioner did not outline how the regulation was inconsistent with the provisions cited. Therefore, the circumstances in the JNR case were not applicable in the instant case.
    In Bildad Rogoncho Kamwele v Judicial Service Commission, Petition 103 of 2019 [2020] eKLR (Bildad Rogoncho case), the court held that the finding of the court in Simon Rotich Ruto v Judicial Service Commission & another [2019] which declared the provisions of regulation 23 of the Third Schedule to the Act unconstitutional did not extend to the provisions of section 6(h) and (i) of the Access to Information Act which limited the right to access of information under article 35 of the Constitution. The Bildad Rogoncho case was distinguishable from the appellant’s case because in that case, the court did not dispute the declaration of section 23 of the Third Schedule as unconstitutional, but stated that notwithstanding the declaration, the petitioner’s right to access to information was limited under section 6(h) and 6(i) of the Access to Information Act. The Access to Information Act came into force on September 21, 2016, way after the cause of action in the instant case. That authority was inapplicable.
    The courts below had made contradictory findings on the constitutionality of section 23 of the Third Schedule to the Judicial Service Act. The instant court could exercise its jurisdiction to clarify uncertainty in the law arising from contradictory precedents of the Court of Appeal by either resolving the uncertainty, as it could determine, or referring the matter to the Court of Appeal for its determination. Even though the instant matter was not filed under article 163(4)(b) of the Constitution, it was necessary for the court to settle, with finality, the issue as to whether section 23 of the Third Schedule was constitutional.
    Any limitation of the right to access to information under article 35 of the Constitution could only be done by legislation under specific prescribed criteria. The impugned section 23 was a subsidiary legislation found in the Third Schedule of the  Judicial Service Act which was enacted in 2011 (after the effective date). The Third Schedule was premised on section 32 of the Act which made provisions for appointment, discipline and removal of judicial officers and staff. Nowhere in the parent Act, and in particular section 32, was it specifically expressed that there was an intention to limit the right to information of an officer in respect of whom disciplinary proceedings were to be held. Neither, was there an explanation of the nature and extent of the limitation.
    It was not the intention of the drafters of the Constitution that a vague provision in a schedule, such as the one in section 23 of the Third Schedule to the Act, could limit a constitutional right or fundamental freedom, in a manner that was reasonable and justifiable in an open and democratic society. In view of the set criteria under article 24(2) of the Constitution, section 23 of the Judicial Service Act on its own did not qualify as a legal basis for the purpose of justifying a limitation of a right or fundamental freedom under article 24.
    JSC’s reliance of the proviso in section 23 of the Third Schedule to the Judicial Service Act to limit the appellant’s right to access to information guaranteed in the Constitution was unfounded. JSC’s refusal prejudiced the appellant who could not adequately challenge its decision to remove her from office. Section 23 of the Third Schedule was therefore unconstitutional.
    The instant court faulted the Court of Appeal’s finding that it would have been impractical for JSC to give specific reasons regarding the 87 allegations in the termination letter and that a press statement issued by JSC on October 19, 2013 gave detailed reasons for the termination of the appellant’s employment. The least that JSC could have done was to enclose its reasons in the removal letter, the same way it enclosed the allegations against the appellant in its letter dated September 10, 2013. Therefore, refusal to give the appellant reason(s) for her removal, was without justification. The appellant’s right to fair administrative action under article 47 of the Constitution, and the right to access information were violated.
    Article 50(1) of the Constitution referred to the right to a fair hearing for all persons, while article 50(2) accorded all accused persons the right to a fair trial. Article 25(c) of the Constitution listed the right to a fair trial as a non-derogable fundamental right and freedom that could not be limited. Often the terms ""fair hearing"" and ""fair trial"" were used interchangeably, sometimes to define the same concept, and other times to connote a minor difference.
    Although the right to a fair trial was encompassed in the right to a fair hearing in the Constitution, a literal construction of article 50(1) and 50(2) of the Constitution could be misconstrued in some quarters to mean that article 50(1) dealt with the right to fair hearing in any disputes including those of a civil, criminal or quasi criminal nature whereas article 50(2) was limited to accused persons thereby arguing that the protection of such right only related to criminal matters. That was not an acceptable interpretation or construction within the parameters of articles 19 and 20 of the Constitution on the Bill of Rights, which called for an expansive and inclusive construction to give a right its full effect.
    Fair hearing in principle incorporated the rules of natural justice, which included the concept of audi alteram partem(hear the other side or no one was to be condemned unheard) and nemo judex in causa sua (no man shall judge his own case) otherwise referred to as the rule against bias. Although JSC’s letter of September 10, 2013 referred to an earlier letter of August 20, 2013, that letter was not part of the record for unknown reasons. The letter of August 20, 2013 would have been useful to enable the court to discern whether the process was without notice and turned from investigatory to disciplinary. Disciplinary proceedings against the Chief Registrar were not restricted to financial mismanagement and hence, need not be preceded by an investigatory process. JSC had jurisdiction to initiate disciplinary proceedings against the appellant suo motu without any recommendation or report from any external oversight bodies.
    The right to a public hearing was provided for under article 50(1) of the Constitution. From the wording of article 50(1), the right to a public hearing was only automatic when the matter being heard was before a court, otherwise, any other hearing be it before a tribunal or body, could only be allowed, if appropriate. That being a discretionary power, it could only be exercised by the body or tribunal conducting the proceedings.
    The reasons given by the Court of Appeal to uphold JSC’s refusal to accord the appellant a public hearing were not the same as those given by JSC in its ruling of October 16, 2013. If those were JSC’s reasons for denying the appellant a public hearing, they ought to have been reflected in JSC‘s ruling. Consequently, the court faulted the Court of Appeal for arriving at that conclusion. Further, the JSC’s reasons for denying a public hearing on the basis that it was an internal process, that was its common practice in other disciplinary matters was vague, and not sufficient basis to deny a specific request. Without justifiable reasons for the refusal, the appellant’s right to fair administrative action through public hearing under article 47 of the Constitution was violated.
    Without the Hansard Reports and minutes of JSC for October 18, 2013 on record, the court was unable to confirm if the request to call witnesses was made. The court was also not able to authenticate the appellant’s allegations that JSC in violating her right to a fair hearing, did not consider the reports and written submissions in reaching the final decision. Even if the court presumed that the issue of the appellant requesting for an adjournment on October 18, 2013 to call witnesses was raised, as it had not been controverted by JSC in its submissions, the court was not able to conclusively determine the same without the copies of those proceedings. In the absence of JSC’s proceedings of October 18, 2013, it was impossible even for the Court of Appeal to conclusively determine the issue, and therefore the instant court faulted its finding on the same.
    The tribunal should not have been reconstituted on account of the alleged perceived bias by the named commissioners and the chairman. Counsel for the appellant admitted to JSC by stating that he could not authenticate the emails upon which the allegations of bias were made. In fact, counsel stated that the same could be true or fake. Without authenticating the emails, it was impossible to conclude that there was actual or reasonable apprehension of bias. The appellant’s right to a fair hearing regarding that aspect was not violated.
    Article 24 of the Constitution was permissive on limitation of rights and fundamental freedoms. The limitation was permissible on two conditions;
        that a right or fundamental freedom in the Bill of Rights should only be limited by law; and
        to the extent only that the limitation was reasonable and justifiable in an open and democratic society. Even where the right or fundamental freedom had been limited by law, the yardstick for determining the reasonableness and justifiability of the limitation was whether such limitation was acceptable in an open and democratic society.
    The court in considering the limitation under article 24(1) of the Constitution had to bear in mind that there was no superior right and take into consideration factors such as the nature of the right to be limited, the importance and purpose of the limitation, the nature and extent of the limitation and the need to ensure that enjoyment of rights and fundamental freedoms by one individual did not prejudice the rights of others. That called for balancing of rights under the principle of proportionality because rights had equal value and therefore maintained the equality of rights.
    JSC did not state the importance or purpose for denying the appellant access to the documents requested through her advocate vide a letter dated October 25, 2013. Without the reasons, the appellant could not adequately challenge the decision to remove her from office in a court of law. The burden to justify a limitation of a fundamental right or freedom lay with the person limiting the same. The appellant specified the documents she needed, and the date of the documents. There was no merit in the Court of Appeal’s finding that the appellant’s request for documents vide a letter dated October 25, 2013, was vague. JSC’s limitation of the appellant’s right of information under article 35 of the Constitution was unreasonable and unjustifiable.
    The following guiding principles ought to assist the courts when considering a matter concerning disciplinary proceedings before JSC:
        the JSC should comply with the procedure set out in article 47 of the Constitution and the Fair Administrative Actions Act.
        JSC should always give an employee reasonable time to defend himself or herself.
        an employee should be informed of the basis of the complaint(s) or who their accusers were to enable the employee to defend themselves.
        JSC should furnish an employee with details of allegations against them.
        JSC had to always be clear from the start whether the administrative action against an employee was of an investigatory nature or of a disciplinary nature. Should an investigatory process turn into a disciplinary one, an employee had to be accorded a fresh notice to prepare his/her defence.
        an employee should be accorded a public hearing if they desired to have one. A decision to decline such a request had to be accompanied with reasons which would be given to the employee.
        an employee should be given detailed reasons for any administrative action/decision by JSC.
        an employee should access and receive any relevant documents relating to their matter. Any decision to the contrary had to be accompanied by a written reason.
        an employee should be accorded opportunity to attend proceedings, in person or in the company of an expert of their choice.
        an employee undergoing disciplinary proceedings should be given an opportunity to call witnesses, be heard; cross-examine witnesses; and request for an adjournment of the proceedings upon providing good reasons and where necessary to ensure a fair hearing.
    In order to achieve compliance with the guidelines, the JSC was directed to publish and publicize procedures for all its disciplinary and investigative processes, and that such publication be undertaken and effected through the Kenya Gazette, within 90 days from the date of the judgment.
    The court took judicial notice that the issue of relief was not substantively addressed by any of the superior courts below. A matter coming on appeal to the court had to have first been the subject of litigation before the High Court and risen through the judicial hierarchy on appeal.

Appeal allowed. ",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/5/eng@2022-02-17
Application 11 (E020) of 2021,Agatha v Azad & 3 others (Application 11 (E020) of 2021) [2022] KESC 1 (KLR) (Civ) (10 February 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",10 February 2022,2022.0,Nairobi,Civil,Agatha v Azad & 3 others,[2022] KESC 1 (KLR)               ,,"The applicant sought leave of the court to file the appeal out of time, or to deem the appeal already lodged to have been so lodged with the court’s leave. The applicant had within three (3) days lodged the notice of appeal on of June 7, 2021, and on the same day requested for typed proceedings and even paid the court charges. The proceedings were, however, not availed until September 20, 2021. Nine (9) days later, the instant application was made on September 29, 2021. Time began to run from June 7, 2021, being the date the notice of appeal was lodged. Within 30 days of that date, namely on July 19, 2021, in terms of section 57 of the Interpretation and General Provisions Act, the appeal ought to have been filed. The delay was attributed to the court’s failure to furnish the applicant with a copy of the proceedings. They were subsequently availed on September 20, 2021.The 1st respondent opposed the application on grounds that the whole period of delay had not been declared or explained satisfactorily; and that the applicant had not provided a certificate of delay from the Deputy Registrar of the Court of Appeal, as proof that the delay was occasioned elsewhere, nor has she explained the steps, if any, taken to follow up the proceedings. The 1st respondent also contended that even if time was enlarged, the intended appeal was not arguable as it did not raise matters of general public importance or of novel constitutional nature.","
    Under rule 15(2) of the Supreme Court Rules, 2020, the Supreme Court had unfettered discretionary powers to extend time limited by the rules or by any of its decisions. Any person intending to appeal to the court was required by rule 36(1) of the Supreme Court Rules, 2020, to file a notice of appeal within fourteen days from the date of the decision intended to be challenged; and that, subsequently, within thirty days of the date of lodging the notice of appeal, an appeal had to be filed. In terms of section 57 of the Interpretation and General Provisions Act, the appeal ought to have been filed. The delay was attributed to the court’s failure to furnish the applicant with a copy of the proceedings. They were subsequently availed on September 20, 2021.  The fact that a court had contributed to the delay would not automatically lead to a favourable outcome to an applicant as each case will be determined on its peculiar circumstances.
    The proceedings were availed on September 20, 2021. Before that period the applicant could not take any step towards lodging the appeal. So that time could only start running from September 20, 2021. Therefore, the period in contention was between September 20, 2021 and of September 29, 2021, the date this application was made, in total a delay of 9 days.
    The following principles guide parties in an application for the enlargement of time:
        extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party, at the discretion of the court;
        a party who sought extension of time had the burden of laying a basis, to the satisfaction of the court;
        whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis;
        where there was a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the court;
        whether there would be any prejudice suffered by the respondents, if an extension was granted;
        whether the application had been brought without undue delay; and
        whether in certain cases, like election petitions, public interest should be a consideration for extending time.
    The delay not being inordinate and the applicant having sufficiently explained her predicament, the explanation was consistent with the court’s position that an appeal filed out of time without leave of the court was irregular.

Application allowed. ",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/1/eng@2022-02-10
Petition 13 of 2020,Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition 13 & 18 of 2020 (Consolidated)) [2022] KESC 2 (KLR) (10 February 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          W Ouko",10 February 2022,2022.0,Nairobi,Civil,Kenya Railways Corporation & 2 others v Okoiti & 3 others,[2022] KESC 2 (KLR)               ,,"The applicant filed the instant application seeking leave to file its supplementary record of appeal being the replying affidavit of its then managing director. The applicant claimed that it inadvertently, by omission, failed to include as part of the record the replying affidavit by the then managing director of the applicant and that the omission was only discovered while the applicant was preparing submissions to the petition. Further, that upon realization, the applicant proceeded to file the instant application in good faith. The applicant also claimed that the replying affidavit formed the crux of the interpretation of the law by the Court of Appeal and was integral to the disposition of the Court of Appeal.","Though the applicant had invoked the court’s jurisdiction to extend time under rule 15(2) of the Supreme Court Rules, 2020, the application did not seek any express relief for extension of time. Nevertheless, rule 40 of the Supreme Court Rules, 2020 dealt with the contents of a record of appeal which included the relevant pleadings required to determine the appeal. Under rule 40(4) where a document was omitted from the record of appeal under that rule, the appellant could within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/2/eng@2022-02-10
Application 12 (E021) of 2021,Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others (Application 12 (E021) of 2021) [2022] KESC 3 (KLR) (10 February 2022) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",10 February 2022,2022.0,Nairobi,Civil,Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others,[2022] KESC 3 (KLR)               ,,"The applicants’ appeal to the instant court was struck out for want of form. The court noted that the appeal did not contain any prayer for any specific relief; further, the appellant had failed to include in the record of appeal, substantial and essential parts of the petition in the High Court. The applicant filed the instant application for leave to extend time to file a fresh notice of appeal or in the alternative, that time to file an appeal out of time be extended.",It was well over fifteen days and indeed over one year between the filing of the record of appeal and the instant application. The applicant’s counsel merely stated in his affidavit that he discovered the absence of the supplementary record of appeal when preparing the submissions for the petition making it difficult to address the question of delay. The applicant had not explained the delay or when he made the discovery.,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/3/eng@2022-02-10
Petition 1 of 2020,Attorney General v Zinj Limited (Petition 1 of 2020) [2021] KESC 23 (KLR) (3 December 2021) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          W Ouko",3 December 2021,2021.0,Nairobi,Civil,Attorney General v Zinj Limited,[2021] KESC 23 (KLR)               ,,"The appellant challenged the decision of the Court of Appeal which partly allowed an appeal against the decision of the Environment and Land Court (the trial court) on the award of damages. The respondent was the registered owner of the suit property pursuant to a grant issued under the repealed Registration of Titles Act, (Cap 281) Laws of Kenya. The respondent claimed that in 2007, the appellant, without reference to or concurrence of the former, unilaterally issued duplicate title deeds over portions of the suit property in favour of third parties under the repealed Registered Lands Act (Cap 300) Laws of Kenya. It was the respondent’s further claim that among other groups of people, the Department of Defence through the then Permanent Secretary to the Treasury, was granted a duplicate title over a parcel of land which was part of the suit property. Aggrieved, the appellants filed a petition at the trial court and claimed that the duplicate titles were issued to trespassers who had encroached on the suit property. The appellant’s case was that the respondent’s act of issuing titles over the suit property was illegal and amounted to unlawful compulsory acquisition and deprivation of its property. It further claimed that the respondent’s actions amounted to a violation of its rights under article 40 (1) and (3) of the Constitution, and sought two declarations to that effect, and a consequential award of damages. The trial court held that the issuance of duplicate titles over the appellant’s land, in favour of third parties, amounted to unlawful compulsory acquisition, and a violation of its right to property under article 40(3) . The trial court determined that the acreage unlawfully acquired was 51.129 ha and awarded the respondent a sum total of Kshs. 413,844,248.70 as compensation for the land encroached and Kshs. 51,129,000 as general damages for breach of the respondent’s right to property. 
The Court of Appeal upheld the trial court’s finding that the respondent’s right to property was violated, and determined that the appellant’s acts amounted to compulsory acquisition of portions of the suit property. Further, the appellate court held that the respondent was entitled to compensation under article 40(3) of the Constitution, on account of the compulsory acquisition. Additionally, the court faulted the trial court for failing to properly exercise its discretion in the computation of damages and determined that the respondent was entitled to compensation for the entire suit property. It found that upon payment of the compensation, the respondent would be deemed to have relinquished its title to the suit property. Finally, the Court of Appeal awarded damages of Kshs. 449, 434, 800 for the compulsory acquisition of the suit property and Kshs. 42, 570, 000 as damages for violation of the appellant’s right to property. Aggrieved, the petitioner filed the instant appeal.","During the proceedings at both the trial and appellate courts, the ownership status of the suit property was never in doubt. It remained an uncontroverted fact that the respondent acquired the suit property pursuant to a grant of lease by the government. By the time the cause of action arose, the lease in favour of the respondent was intact.The only way the Government could lawfully deprive the respondent of part or all of its property, was through a compulsory acquisition, in conformity with the provisions of article 40(3) of the Constitution, and the procedure stipulated in the repealed Land Acquisition Act which was the applicable law at the time. The Government did not acquire the portion of the suit property compulsorily. The facts on record did not point towards compulsory acquisition. Being the custodian of the land register, and the guarantor of titles emanating there-from, the Government was acutely aware that the suit property was privately owned by the respondent.
Any compulsory acquisition process, ought to have commenced with a requisite notice to the respondent, and any other persons claiming an interest in the land. The public purpose for which the land was to be acquired, ought to have been clearly stated. Most critically, the resultant acquisition ought to have been attended with prompt payment in full of a just compensation to the respondent. There was nothing on the record to show, that any of those mandatory processes was followed before a portion of the suit property was acquired. The issuance of titles over a portion of the suit property in favour of third parties was unlawful, un-procedural, and an egregious violation of the respondent’s right to property. The issuance of titles to third parties over a portion of the suit property, amounted to a violation of article 40(3)(a) and (b) of the Constitution.
The trial court and Court of Appeal granted special and general damages. There was no reason to interfere with the findings of the two superior courts in that regard. In arriving at the quantum of special damages, the trial court placed reliance upon a valuation report by a private valuer. The main basis upon which special damages could be granted for the deprivation of property, was the market value of the suit property. In case of general damages, a court of law exercised discretion guided by the circumstances of each case. In granting special damages, the trial court was guided by the valuation report tabled by the respondent. In the absence of a contrary report on record, there was no basis upon which to interfere with the award. Even if there had been one such other report, the Supreme Court’s jurisdiction to interfere would have been largely circumscribed, unless the award had clearly ignored the fundamental principles of valuation as demonstrated by the counter-report.
The principles governing compensation for compulsorily acquired land, could not be applicable to the suit land, as the same had not been so acquired. The most appropriate remedy was an award of damages. The Supreme Court approved of the Court of Appeal’s decision to award compensation in difficulty, not just with regard to a portion of the land, but for the whole of the suit property including the un-acquired portion. Nor could the Supreme Court justify an award of damages that extended to that part of the land that had neither been compulsorily, nor unlawfully acquired. The respondent’s contention that the unlawful acquisition of a portion of its land had resulted in the diminution of the value of the whole of the suit property was a matter of fact, which ought to have been authoritatively established at the trial court. But even if that fact had been established at the trial court, the same would not have constituted a constructive compulsory acquisition, a legal tenet unknown to Kenyan law.
Appeal partly allowed.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/23/eng@2021-12-03
Petition 5 (E007) of 2021,Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission (Interested Party) (Petition 5 (E007) of 2021) [2021] KESC 22 (KLR) (Civ) (3 December 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",3 December 2021,2021.0,Nairobi,Civil,Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission,[2021] KESC 22 (KLR)               ,,,"The principles that guided the Supreme Court in determining applications for conservatory orders were:
        the Appeal or intended appeal was arguable and not frivolous.
        Unless the orders sought were granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.
        That it was in public interest that the conservatory orders be granted.
    The question whether an appeal was arguable, did not call for the interrogation of the merit of the appeal. The Supreme Court at an interlocutory was not to make any definitive findings of either fact or law. An arguable appeal was not one which had to necessarily succeed, but one which ought to be argued fully before the Court.
    In the time it had taken for the appeal to reach the Supreme Court, the world had been rocked by the Covid-19 pandemic which was first identified in December of 2019 and declared a global pandemic in March 2020. The Supreme Court took judicial notice that on March 25, 2020, the President, as part of the Government’s containment and treatment protocols announced a nationwide overnight curfew to take effect from March 27, 2020 between the hours of 7 p.m. to 5 a.m. The night time curfew had been continuously extended with some modifications on the effective hours being reduced but the same had since been lifted by Presidential directive on October 20, 2021. The curfew imposed after the 2015 Garissa University attack, was prompted by security concerns. However, the contested curfew orders in the application were due to the Covid-19 pandemic, which had been declared a public health emergency.
    For an appeal to lie to the Supreme Court from the Court of Appeal under article 163(4)(a), the constitutional issue must have had first been in issue at both the High Court and then the Court of Appeal for determination. The Supreme Court recognized and respected the constitutional competence of courts in the judicial hierarchy to resolve matters before them.
    The underlying challenge for the curfew orders of 2015 and the curfew orders of 2020 was the constitutionality of sections 8 and 9 of the Public Order Act on which the curfew orders were premised. The facts giving rise to the cause of actions were premised on different aspects; the 2015 curfew orders on security concerns following a terrorist attack and the 2020 curfew orders on a public health emergency following the continuing threat of a global pandemic.
    At no point were the superior courts called on or had opportunity to render themselves on the legality and constitutionality or otherwise of the 2020 curfew orders issued with a view to contain the Covid-19 virus as a public health emergency. It would be greatly dishonest for the applicant to seek to introduce that new aspect when on final appeal before the Supreme Court. More so without having argued it before both the High Court and Court of Appeal.

Application dismissed. ",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/22/eng@2021-12-03
Petition 17 (E017) of 2020,Katiba Institute v Attorney General & 9 others (Petition 17 (E017) of 2020) [2021] KESC 25 (KLR) (3 December 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",3 December 2021,2021.0,Nairobi,Civil,Katiba Institute v Attorney General & 9 others,[2021] KESC 25 (KLR)               ,,"Rule 15(2) of the Supreme Court Rules, 2020 granted the Supreme Court the discretion to extend time. The Supreme Court could, in its discretion, extend time for any action under the Rules. The guiding principles for extension of time were:
        Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court.
        A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court.
        Whether the Supreme Court should exercise the discretion to extend time, was a consideration to be made on a case to case basis
        Whether there was reasonable reason for the delay; the delay should be explained to the satisfaction of the court.
        Whether there would be any prejudice suffered by the respondent if the extension was granted.
        Whether the application had been brought without undue delay.
        Whether in uncertain cases, like election petitions, public interest should be a consideration for extending time.
    No prejudice would be occasioned to the respondents if leave was granted as prayed. The purpose of the replying affidavits was to reinforce the grounds of objections already filed. A replying affidavit was the principal document wherein a respondent’s reply was set and the basis of any submissions and/or list of authorities that may be subsequently filed.

Application allowed. ","Rule 15(2) of the Supreme Court Rules, 2020 granted the Supreme Court the discretion to extend time. The Supreme Court could, in its discretion, extend time for any action under the Rules. The guiding principles for extension of time were:
        Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court.
        A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court.
        Whether the Supreme Court should exercise the discretion to extend time, was a consideration to be made on a case to case basis
        Whether there was reasonable reason for the delay; the delay should be explained to the satisfaction of the court.
        Whether there would be any prejudice suffered by the respondent if the extension was granted.
        Whether the application had been brought without undue delay.
        Whether in uncertain cases, like election petitions, public interest should be a consideration for extending time.
    No prejudice would be occasioned to the respondents if leave was granted as prayed. The purpose of the replying affidavits was to reinforce the grounds of objections already filed. A replying affidavit was the principal document wherein a respondent’s reply was set and the basis of any submissions and/or list of authorities that may be subsequently filed.

Application allowed. ",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/25/eng@2021-12-03
Petition 10 of 2021,Lelli v Kenya Medical Training College & 2 others (Petition 10 of 2021) [2021] KESC 21 (KLR) (Civ) (3 December 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",3 December 2021,2021.0,Nairobi,Civil,Lelli v Kenya Medical Training College & 2 others,[2021] KESC 21 (KLR)               ,,"The 1st respondent had previously applied for orders to strike out the petition of the appeal by the petitioner. Following the respondent’s application, the petitioner filed an application to withdraw the petition.","While a party could move the Supreme Court to have an appeal struck out; rule 27(1) of the Supreme Court Rules, 2020, a party could, with the leave of the court, withdraw the proceedings at any time before the delivery of the judgment. A party’s liberty to withdraw a matter could not be taken away. A court had to allow a party who had approached the court to withdraw such a matter if he deemed so fit to do.Since the application to withdraw the petition had been granted, there was no need to delve into the application by the 1st respondent to strike out the petition of appeal because the petitioner on his own motion had moved to withdraw the petition in the appeal. That did not in itself connote bad faith as the appeal stood withdrawn, which was essentially what the 1st respondent sought to have the court do by seeking orders to have the appeal struck out. No prejudice would be caused to the 1st respondent by the petitioner moving the court to have the proceedings withdrawn.
The application was allowed. ",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/21/eng@2021-12-03
Petition 29 of 2020,Okoiti & another v Attorney General & another (Petition 29 of 2020) [2021] KESC 28 (KLR) (Civ) (3 December 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          MK Ibrahim,                                                                                                                          PM Mwilu,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",3 December 2021,2021.0,Nairobi,Civil,Okoiti & another v Attorney General & another,[2021] KESC 28 (KLR)               ,,"The applicants sought for the Supreme Court findings on the gender principle in Advisory Opinion No. 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, be declared unconstitutional. In opposition, the 1st respondent filed a preliminary objection on grounds the applicants lacked locus standi to seek an advisory opinion of the Supreme Court under the Constitution and therefore also lacked the legal standing to seek a review of the Supreme Court’s advisory opinion.","Article 163(6) of the Constitution granted the Supreme Court jurisdiction to issue an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government. A party that sought an advisory opinion under article 163(6) had to have locus standi.The Supreme Court had to always consider whether the party that sought to move it fell within the categories of parties decreed as having such locus standi by the Constitution. The applicants did not fall within the categories contemplated under article 163(6) of the Constitution and therefore they did not have locus standi to seek a review of orders issued by the Supreme Court in the advisory opinion. The applicants were not parties to the proceedings in Advisory Opinion No. 2 of 2012 and as such, they lacked locus standi to approach the Supreme Court to review and/or vary its orders.
Application dismissed. ",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/28/eng@2021-12-03
Application 9 of 2021,Tawai Limited v Eldoret Express Limited; National Land Commission (Interested Party) (Application 9 of 2021) [2021] KESC 24 (KLR) (3 December 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola,                                                                                                                          N Ndungu",3 December 2021,2021.0,Nairobi,Civil,Tawai Limited v Eldoret Express Limited; National Land Commission,[2021] KESC 24 (KLR)               ,,"The applicant sought to review, vary and or set-aside the Supreme Court’s ruling that upheld the Court of Appeal’s decision denying certification and to reinstate it for fresh hearing.","The extent of the Supreme Court’s review of certification jurisdiction was provided for in article 163(5) of the Constitution which provided that a certification by the Court of Appeal under clause 4(b) could be reviewed by the Supreme Court, and either affirmed, varied or overturned. Where one applied to the Court of Appeal for leave to appeal to the Supreme Court, and the party was not satisfied by the decision of the Court of Appeal, no appeal lay. The only recourse was for the party to apply for review of the matter to the Supreme Court.The Supreme Court could only vary any of its judgments, rulings or orders under the following instances:
where the judgment, ruling or order was obtained by fraud or deceit.
Where the judgment, ruling or order was a nullity, such as when the court itself was not competent;
where the court was misled into giving judgment, ruling or order under a mistaken belief that the parties had consented;
where the judgment or ruling was rendered on the basis of a repealed law, or as a result of a deliberately concealed statutory provision.
The applicant had not laid any basis, upon which the court should review its ruling. None of the conditions had been demonstrated as prevailing so as to warrant a review or variation of the court’s ruling.
 
The application for a second review was not merited",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/24/eng@2021-12-03
Petition 41 of 2019,Kenya Revenue Authority & 2 others v Mount Kenya Bottlers Ltd & 4 others (Petition 41 of 2019) [2021] KESC 26 (KLR) (26 November 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          W Ouko",26 November 2021,2021.0,Nairobi,Civil,Kenya Revenue Authority & 2 others v Mount Kenya Bottlers Ltd & 4 others,[2021] KESC 26 (KLR)               ,,"The Court of Appeal had overturned the judgment and orders of the High Court in Petition No. 72 of 2011. In dismissing the 1st to 4th respondent’s petition, the High Court had held that the petitioners had acted within the law in demanding payment of excise duty on returnable containers and that there was no breach of any constitutional rights of the 1st to 4th respondents.Aggrieved by the decision of the Court of Appeal, the petitioners filed the instant petition of appeal and the matter was eventually set for hearing. However, before the hearing and upon perusing the filed pleadings and record of appeal, the Supreme Court noted some serious anomalies: that the petition of appeal omitted any prayer for relief, and that the petition filed in the High Court as well as a substantial part of the affidavit supporting it, was missing from the record of appeal. As such, the court found that it was necessary to ascertain the status of these documents before proceeding to hear the matter. 
Counsel for the petitioners indicated that their petition of appeal contained the reliefs sought. It was their submission that the court ought to make pronouncements on the principles of taxation in terms of that paragraph. Counsel further urged the court to allow them to ventilate the matter and not strike out the appeal, arguing that such a move was too draconian and that if necessary, the petitioners should then be allowed to amend the petition. On the other hand, counsel representing the respondents submitted that the petition did not contain any reliefs sought. In that regard, he submitted that the petition could not now be amended and urged that the omission was fatal because the arguments to be advanced by the parties had to result in reliefs that the court could properly grant. It was further contended that there being no reliefs sought, proceeding to hear the matter would be undertaking an academic exercise as a court determined issues pleaded and granted reliefs sought by the parties.","There were no actual legally recognized reliefs pleaded by the petitioners for the court to grant, the petition of appeal before the court was fatally defective for lack of reliefs sought and ought to be struck out.The record indicated that the instant matter was severally mentioned before the Deputy Registrar for the petitioners to file a supplementary record of appeal. The mentions culminated into a consent dated October 5, 2020 adopted as a court order on October 8, 2020 where the court directed and ordered that the supplementary record of appeal be filed and served within 14 days from the date of recording the consent. The petitioners filed a supplementary record but it only contained the order and proceedings of the Court of Appeal. Therefore, the defect was not cured as the High Court petition and part of the affidavit were still missing.
Rule 33(4) of the Supreme Court Rules, 2012 (repealed) which rules were applicable at the time of filing stated that for the purpose of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal had to contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub rule (3) and had to further contain the following documents relating to the appeal in the first appellate court  being the certificate, if any, certifying that the matter was of general public importance; the memorandum of appeal; the record of proceedings; and the certified decree or order. The petitioners were obligated by law to include all the pleadings and documents relied upon during the hearing in the two superior courts. Failure to comply with section 33(4) of the Supreme Court Rules, 2012 (repealed) was fatal as the window for such compliance was closed. The petition was fatally defective and incurable
The Supreme Court was concerned with the demeanour of counsel appearing for the petitioners. Even when he was aware that essential documents were missing from the record of appeal, he intended to proceed with the matter without duly informing the court or the other parties in the matter. That apparent attempt by counsel to mislead the court, fell short of professional etiquette and conduct that was expected from an advocate and officer of the court. It was improper, dishonest, and discourteous for an advocate to deliberately conceal material facts that were important to arriving at a just and fair decision. The Supreme Court frowned greatly upon such behaviour.
The petition was struck out. ",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/26/eng@2021-11-26
Petition 12 (EO16) of 2020,Attorney General v David Ndii & 73 others (Petition 12 (EO16) of 2020) [2021] KESC 17 (KLR) (9 November 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",9 November 2021,2021.0,Nairobi,Civil,Attorney General v David Ndii & 73 others,[2021] KESC 17 (KLR)               ,,"The applicant sought to be joined as an interested party to the suit on grounds that it brought a fresh perspective to the appeal adopting a different view from the Court of Appeal’s finding on the basic structure. The applicant submitted that the alterations to the Constitution’s basic structure had to be subjected to a two-step inquiry that incorporated tiers of the constitutional scrutiny. The 7th, 8th, 9th; 13th and 18th respondents’ opposed the application, urging the court to dismiss it on the grounds, inter alia, that the applicant had no identifiable interest, separate and distinct from those already advanced by the parties on record, and that the application fell short of the elements required for joinder of an interested party.","An applicant for joinder as interested party had to satisfy the Supreme Court that they had satisfied the legal requirements for joinder under rule 24 of the Supreme Court Rules, 2020.The guiding principles applicable in determining an application to be joined as an interested party in were:
One had to move the court by way of a formal application. Joinder of a party was not as of right, but was at the discretion of the court; hence, sufficient grounds had to be laid before the court, on the basis of the following elements:
The personal interest or stake that the party had in the matter had to be set out in the application. The interest had to be clearly identifiable and had to be proximate enough, to stand apart from anything that was merely peripheral.
The prejudice to be suffered by the intended interested party in case of non-joinder, had to also be demonstrated to the satisfaction of the court. It had to also be clearly outlined and not something remote.
A party’s application had to set out the case and/or submissions it intended to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that those submissions were not merely a replication of what the other parties would be making before the court.
The applicant had not met the threshold for admission as an interested party as it had failed to establish a personal interest or stake that was proximate enough to occasion any prejudice to it, if not joined in the proceedings.
Application dismissed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/17/eng@2021-11-09
Petition E016 of 2021,Attorney General v David Ndii & others; Albert & another (Amicus Curiae) (Petition E016 of 2021) [2021] KESC 16 (KLR) (Civ) (9 November 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",9 November 2021,2021.0,Nairobi,Civil,Attorney General v David Ndii & others; Albert & another,[2021] KESC 16 (KLR)               ,,The applicants sought to be admitted as amici curiae (friends of the court). The applicants contended that they had expertise in constitutional law and sought to present amici briefs on whether the Constitution of Kenya (Amendment) Bill 2020 was best understood as a constitutional amendment or a constitutional dismemberment and on the meaning and importance of constitutional amendments.,"An applicant for joinder as amicus curiae had to satisfy the court that they had satisfied the legal requirements for joinder as stated under rule 19 of the Supreme Court Rules, 2020.The guiding principles applicable in determining an application for joinder as amicus curiae were:
An amicus brief should be limited to legal arguments.
The relationship between amicus curiae, the principal parties, and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
An amicus brief ought to be made timeously, and presented within a reasonable time. Dilatory filing of such briefs tended to compromise their essence as well as the terms of the Constitution’s call for the resolution of disputes without undue delay. The court could on a case-by-case basis, reject amicus briefs that did not comply.
An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.
Where, in adversarial proceedings, parties alleged that a proposed amicus curiae was biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appeared to be partisan on an issue before the court, the court would consider such an objection by allowing the respective parties to be heard on the issue.
The admission of amici curiae was useful for achieving Kenya’s constitutional mandate to develop the law with the assistance of input from parties appearing before the court. The applicants intended to address the court on the issue of constitutional amendments including questions touching on the basic structure, its scope, relevance, and applicability. The applicants' detailed amici briefs were useful to the court. No prejudice would be caused to any party if the applicants were admitted and no partiality expressed in their draft amici briefs.
Application allowed.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/16/eng@2021-11-09
Petition E016 of 2021,Attorney General v Ndii & 73 others; Akech (Intended Amicus Curiae) (Petition E016 of 2021) [2021] KESC 20 (KLR) (Civ) (9 November 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",9 November 2021,2021.0,Nairobi,Civil,Attorney General v Ndii & 73 others; Akech,[2021] KESC 20 (KLR)               ,,The applicant sought to be joined as amicus curiae (friend of the court). The applicant contended that he had the expertise and intended to submit to the court on the history of the making of the Constitution vis-à-vis the basic structure doctrine and its application.,"An applicant for joinder as amicus had to satisfy the Supreme Court that they had satisfied the legal requirements for joinder under rule 19 of the Supreme Court Rules 2020.The guiding principles applicable in determining an application to be joined as amicus curiae were:
An amicus brief should be limited to legal arguments.
The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tended to compromise their essence as well as the terms of the Constitution of Kenya, 2010’s call for the resolution of disputes without undue delay. The court could, therefore, and on a case-by-case basis, reject amicus briefs that did not comply with the principle of timeous filing.
An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.
Where, in adversarial proceedings, parties alleged that a proposed amicus curiae was biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appeared to be partisan on an issue before the court, the court would consider such an objection by allowing the respective parties to be heard on the issue.
The role of amici in court was to aid the court to arrive at a determination based on the law. The applicant wished to restrict himself to only addressing the history of the making of the Constitution vis-à-vis the basic structure doctrine and its application. The applicant was neutral on the dispute, and he would restrict his submissions to the issues raised in his amicus brief.
The applicant’s amicus brief would be of valuable assistance to the court and the applicant had demonstrated expertise in his field relevant to the Supreme Court.
Application allowed.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/20/eng@2021-11-09
Petition E016 of 2021,Attorney General v Ndii & 73 others; Dixon & 2 others (Amicus Curiae) (Petition E016 of 2021) [2021] KESC 19 (KLR) (9 November 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",9 November 2021,2021.0,Nairobi,Civil,Attorney General v Ndii & 73 others; Dixon & 2 others,[2021] KESC 19 (KLR)               ,,The applicants sought to be joined as amici curiae (friends of the court). The applicants contended that they had expertise and intended to submit to the court on constitutional issues.,"An applicant for joinder as amicus had to satisfy the Supreme Court that they had satisfied the legal requirements for joinder under rule 19 of the Supreme Court Rules 2020.The guiding principles applicable in determining an application to be joined as amicus curiae were:
An amicus brief should be limited to legal arguments.
The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tended to compromise their essence as well as the terms of the Constitution of Kenya, 2010’s call for resolution of disputes without undue delay. The court could, therefore, and on a case-by-case basis, reject amicus briefs that did not comply with the principle of timeous filing.
An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.
Where, in adversarial proceedings, parties alleged that a proposed amicus curiae was biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appeared to be partisan on an issue before the court, the court would consider such an objection by allowing the respective parties to be heard on the issue.
At the core of the petition was the application and interpretation of articles 255, 256 and 257 of the Constitution on amendment of the Constitution. The applicants had demonstrated scholarly expertise in constitutional law. The submissions advanced by the applicants would be of valuable assistance to the Supreme Court.
The court was not convinced by the arguments by the 20th and 23rd respondents on bias and lack of neutrality as the respondents had not provided anything which pointed to a lack of impartiality on the part of the applicants. With no evidence pointing to lack of impartiality on the applicants, the applicants had met the criteria set out in Mumo Matemu on joinder of amici curiae. Their participation would bring on board the much needed additional material on the subject of the petition; and that would aid the court in arriving at a judicious determination.
Application allowed.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/19/eng@2021-11-09
Petition E016 of 2021,Attorney General v Ndii & 73 others; Fombad & another (Amicus Curiae) (Petition E016 of 2021) [2021] KESC 18 (KLR) (9 November 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",9 November 2021,2021.0,Nairobi,Civil,Attorney General v Ndii & 73 others; Fombad & another,[2021] KESC 18 (KLR)               ,,"The applicants sought to be enjoined as amici curiae (friends of the court). They contended that they had scholarly expertise in constitutional matters in the African and international context and that they were authors of several books and numerous articles. Further, they stated that they intended to address the court on whether the implied limitations based on the basic structure doctrine, constitutional un-amenability and eternity clauses doctrines were applicable to the intended amendment of the Constitution of Kenya, 2010.","An applicant for joinder as amicus curiae had to satisfy the court that they had satisfied the legal requirements for joinder as stated under rule 19 of the Supreme Court Rules 2020.The guiding principles applicable in determining an application to be enjoined as amicus curiae were:
An amicus brief should be limited to legal arguments.
The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
An amicus brief ought to be made timeously, and presented within a reasonable time. Dilatory filing of such briefs tended to compromise their essence as well as the terms of the Constitution’s call for the resolution of disputes without undue delay. The court could on a case-by-case basis, reject amicus briefs that did not comply.
An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law
Where, in adversarial proceedings, parties alleged that a proposed amicus curiae was biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appeared to be partisan on an issue before the court, the court would consider such an objection by allowing the respective parties to be heard on the issue.
The admission of amici curiae was useful for achieving Kenya’s constitutional mandate to develop the law with the assistance of input from parties appearing before the court. The applicants intended to address the court on the applicability of the basic structure doctrine and the approach adopted by African countries as well as the amendment of the Constitution, its implied limitations and risks to constitutionalism, rule of law and democracy. In the circumstances, the applicants' detailed amicus briefs were to be useful to the court. No prejudice would be caused to any party if the applicants were admitted. There was no partiality expressed in their draft amicus briefs.
 Application allowed.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/18/eng@2021-11-09
Petition 12 (E016) of 2021,Attorney General v Ndii & 73 others (Petition 12 (E016) of 2021) [2021] KESC 15 (KLR) (Civ) (9 November 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",9 November 2021,2021.0,Nairobi,Civil,Attorney General v Ndii & 73 others,[2021] KESC 15 (KLR)               ,,"The 21st respondent (applicant) sought the recusal of Honourable Justices Mohammed Khadhar Ibrahim, Smokin Wanjala and Njoki Ndungu Susanna from hearing and determining the petition of appeals arising from the judgment of the Court of Appeal delivered on August 20, 2021 in Civil Appeal No. E291 of 2021 as consolidated with Civil Appeal Nos. E292 of 2021, E293 of 2021 and E294 of 2021.The applicant contended that it had lodged with the Judicial Service Commission a petition on April 6, 2016 for the removal of six judges on account of a breach of the code of conduct prescribed for judges and for gross misconduct which petition was still pending, the Judicial Service Commission being non-responsive leading the applicant to institute Petition No.301 0f 2016 Isaac Aluoch Polo Aluochier v Ahmed Issack Hassan & 24 others [2016] eKLR. The application was opposed on grounds that the application was an afterthought, ill-conceived and intended to convolute and delay the hearing and determination of the petition; that the applicant had not demonstrated and/or adduced any such evidence in support of the allegations on bias by any of the cited judges and that the application was self-defeating for the reason that whereas the applicant cited three judges for recusal he sought recusal of only two of them. Lastly, the application was opposed on grounds that the application offended the doctrine of the duty of a judge to sit.","The instant court established from the Judicial Service Commission the existence of the applicant’s petition against the three judges. The Judicial Service Commission reported that it did not have evidence of ever having received any such petition in its records. The three judges were similarly not aware of the existence of any petition for their removal filed with the Judicial Service Commission by the applicant. The applicant had not adduced any evidence as to the nature and contents of his alleged petition to the Judicial Service Commission against the judges to enable the instant court determine the extent to which the applicant was aggrieved against each of the judges. In the absence of the petition by the applicant against the judges before the court either directly or through the Judicial Service Commission, the possibility of bias or impartiality was farfetched and speculative.The applicant had not spelt out any specific allegation that was likely to impair the judges in dealing with a matter against the applicant as the applicant indicated willingness to have either of the three judges he was accusing to be part of the bench and to have his petition resolved through alternative dispute resolution mechanisms. The applicant having instituted his petition against the judges to the Judicial Service Commission, the same should have been allowed to take its course as the Judicial Service Commission was an independent constitutional body and operated separately from the Supreme Court.
Article 25 of the Constitution protected the right to fair trial under article 50(2) of the Constitution which only applied to accused persons in criminal proceedings. That was distinguishable from fair hearing alluded to by the applicant under article 50(1) of the Constitution. The doctrine of necessity and duty to sit necessitated the instant matter being heard on merits. That was owing to its public interest nature. None of the other parties in the instant matter had supported the instant application. The Supreme Court under article 163(7) of the Constitution and section 3 of the Supreme Court Act was mandated to make authoritative findings and settle points of law such as those raised in the instant appeal.
The issue as to whether the necessity and duty to sit amounted to the derogation of the right to fair hearing under article 50(1) of the Constitution did not arise under the circumstances. The judges having been appointed in their position under the Constitution including satisfying the provisions of article 73(2)(b) and 166(2)(c) of the Constitution, their impartiality and integrity could only be negated following due process which the petitioner alleged to have invoked but which was inconclusive.
Application disallowed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/15/eng@2021-11-09
Petition 11 (E015) of 2021,Omoke v Kenyatta & 83 others (Petition 11 (E015) of 2021) [2021] KESC 27 (KLR) (Civ) (9 November 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",9 November 2021,2021.0,Nairobi,Civil,Omoke v Kenyatta & 83 others,[2021] KESC 27 (KLR)               ,,"The 71st, 72nd and 73rd respondents (the applicants) sought for leave to consolidate Petition No. 11 (E015) of 2021, Petition No. 12 (E016) of 2021 and Petition No. 13 (E18) of 2021, and for an order directing parties in the three petitions to file responses to the consolidated Petition as opposed to responding to each of the individual petitions. They contended that all three petitions involved the same subject matter, raised similar issues of law, and arose from the same set of facts, and considering the number of parties involved, there was likelihood of duplication and disharmony in the submissions if leave for consolidation was not granted.","The jurisdiction to consolidate appeals in the Supreme Court was conferred by rule 21 of the Supreme Court Rules, 2020, which stipulated that the court could, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings were similar, order that the proceedings be consolidated, on such terms as the court could determine. Consolidation of suits or appeals would be ordered where there were common questions of either law or fact in two or more suits or appeals and where it was desirable that all the related matters be disposed of at the same time.Through consolidation, costs, time and other resources were saved and multiplicity of proceedings avoided. All the three petitions before the court arose from the same set of facts; the same subject matter; they raised similar issues of law; involved the same parties who were before the two Superior Courts below and ensued from the same judgment. Further, the application was not opposed in substance.
The instant application had met the threshold for consolidation and Petition No. 12 of 2021 (E016) of 2021, Attorney General vs David Ndii & 73 Others,  encapsulated most of the key grounds common to the rest of the other petitions, in contrast with the appellant’s Petitions No. 11 (E015) of 2021, which raised only one question.
The order of precedence, proceedings and presentation of arguments in the petitions would be determined on November 9, 2021 during the mention for directions by the Supreme Court.
Application allowed.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/27/eng@2021-11-09
Application 14  (E022) of 2021,Sonko v Clerk County Assembly of Nairobi City & 11 others (Application 14  (E022) of 2021) [2021] KESC 14 (KLR) (8 November 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"SC Wanjala,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",8 November 2021,2021.0,Nairobi,Civil,Sonko v Clerk County Assembly of Nairobi City & 11 others,[2021] KESC 14 (KLR)               ,,"The applicant filed the instant appeal and contended that the application was squarely within the Supreme Court’s jurisdiction in terms of article 163(4)(a) of the Constitution and sections 3(a) and 3(b) of the Supreme Court Act. Further, that the intended appeal would be rendered nugatory unless a temporary order of injunction was granted as he stood to be unfairly, unlawfully, unprocedurally and oppressively deprived of his position as Governor of Nairobi City County. The 1st and 3rd respondents filed preliminary objections on grounds that the instant application was incompetent and ought to be struck out for the reasons that, neither the petition nor the application raised any question of constitutional interpretation or application as the main dispute was yet to be determined by the Court of Appeal.","The appeal before the Court of Appeal was yet to be heard and determined and was scheduled for arguments. There was no substantive determination of a constitutional question by the Court of Appeal to warrant the invocation of the Supreme Court’s jurisdiction under article 163(4)(a) or of its inherent powers under rule 31 of the Supreme Court Rules, 2020.The appeal before the Court of Appeal was yet to be heard and determined. An application so tangential, could not be predicated upon the terms of article 163(4)(a) of the Constitution. Any square involvement of the Supreme Court, in such a context, would entail comments on the merits, being made prematurely on issues yet to be adjudged, at the Court of Appeal.
Without substantive determination of, and in the absence of a judgment of the Court of Appeal in the appeal pending before it, the application was premature and did not meet the threshold of article 163(4)(a) of the Constitution. The court lacked jurisdiction to entertain the application.
Application dismissed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/14/eng@2021-11-08
Petition 14 of 2020,"Director of Public Prosecutions v Okemo & 4 others (Petition 14 of 2020) [2021] KESC 13 (KLR) (Crim) (5 November 2021) (Judgment) (with dissent - W Ouko, SCJ)",Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          MK Koome,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",5 November 2021,2021.0,Nairobi,Civil,Director of Public Prosecutions v Okemo & 4 others,[2021] KESC 13 (KLR)               ,,"The Attorney General of Jersey made a request for the extradition of the 1st and 2nd respondents. The Attorney General of Kenya handed over the extradition request to the Office of the Director of Public Prosecutions (DPP) which was then a department in the office of the AG. The DPP after due consideration issued an Authority to Proceed to the Chief Magistrate and filed extradition proceedings.Aggrieved by the decision the applicants filed an application, alleging that in the absence of Authority to Proceed under the hand of the AG, the extradition proceedings were invalid in law. The Chief Magistrate Court (Extradition Court) held that the extradition proceedings were criminal in nature and that the AG had no role to play.
Aggrieved by the Extradition Court’s decision, the appellants appealed to the High Court. The High Court held that the court conferred with jurisdiction to conduct extradition proceedings was the Extradition Court and not the High Court and that it would not usurp the jurisdiction of the Extradition Court. The High Court held that although extradition proceedings had elements of international law, they were not sui generis proceedings but were criminal proceedings. The High Court went on to find that under the Constitution of Kenya, 2010, read with necessary adaptations, it was the DPP who had the legal authority to issue the Authority to Proceed, and thus the extradition proceedings were valid. Aggrieved by the decision the AG filed an appeal at the Court of Appeal where it was held that the Authority to Proceed issued by the DPP was a nullity as the role to institute extradition proceedings was vested in the AG. Aggrieved, the DPP filed the instant appeal. ","It was a matter of grave concern to the Supreme Court that a case as fundamental as the instant one, revolving around a critical constitutional question, had been stuck in Kenya’s justice system for over ten years for it to be finally resolved. Such dalliance with the exacting demands of justice was neither testimony to the Judiciary’s judicial rigour, nor to Kenya’s commitment to its international obligations. In view of the unacceptable delay, the Supreme Court decided to deliver the judgment in the instant shortened version, to be followed by detailed reasons, pursuant to rule 20(2) of the Supreme Court Rules 2021, on a date to be notified.A reading of article 157 of the Constitution, the relevant extradition treaties, and other applicable laws, left no doubt that extradition proceedings were criminal in nature. The fact that extradition proceedings were criminal in nature, divested the Attorney General of any authority to involve him/herself in their initiation (that was issuance of Authority to Proceed) and conduct before a court of law. The Attorney General however retained the executive authority to receive requests for extradition and to transmit the same to the Director of Public Prosecutions for necessary action.
Under the Constitution of Kenya, 2010, the powers to prosecute any conduct of a criminal nature were the exclusive preserve of the Director of Public Prosecutions. That was subject to the provisions of article 157(6)(a) regarding a court-martial, and any legislation that could be enacted by Parliament pursuant to article 157(12) of the Constitution.
Concurring Opinion; Per NS Ndungu, SCJ.
Extradition proceedings were quasi-criminal in nature, having elements of both criminal and administrative law. On the one hand, they commenced as foreign policy issues including the execution of international treaties and bilateral agreements between governments. On the other hand, they concluded as criminal processes. Therefore, they gave equal but complementary roles to both the Attorney General and the Director of Public Prosecutions, with each office required to play its part in the sequence of events that in totality amount to an act of extradition. That dual responsibility ought to be properly reflected in national legislation as Kenya’s legal provisions were vague and rather untidy.
Dissenting opinion
Per W Ouko, SCJ.
Extradition proceedings were special international legal proceedings based on reciprocity and originating from bilateral and multilateral treaties and agreements between nations, making them matters of international relations that involved the exercise of ministerial or executive responsibility. That was recognized by, most if not all local statutes, including the Extradition (Commonwealth Countries) Act itself, as well as international instruments that dealt with such matters.
Due to the fact that extradition was a process and not a prosecution undertaken in the jurisdiction of the requested state, it was only the office of the Attorney-General, in Kenya’s case, as the principal legal adviser to the Government that had the authority to commence and undertake such proceedings. Extradition was not criminal in nature but sui generis. The Director of Public Prosecutions had no powers to issue Authority to Proceed or institute extradition proceedings under the Extradition (Commonwealth Countries) Act or any law, as he did in the instant matter.
The delay in deciding which one of the two offices was responsible for matters of extradition was unconscionable and absolutely ludicrous. Whether it was the Office of the Attorney General or that of the Director of Public Prosecutions, the most important thing was that the Supreme Court had brought that circus to an end and the proceedings that had been pending in the subordinate court for over ten years could get going.
Appeal allowed.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/13/eng@2021-11-05
Petition 36 of 2019,Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) (22 October 2021) (Judgment),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",22 October 2021,2021.0,Nairobi,Civil,Gichuru v Package Insurance Brokers Ltd,[2021] KESC 12 (KLR)               ,,"The appellant was employed by the respondent on a permanent and pensionable basis as the operations manager. The appellant was diagnosed with a tumour upon which his doctor recommended that he seeks medical attention in India. The appellant proceeded to India for a spinal cord surgery where he underwent successful treatment until January 17, 2014 during which period he continued to receive his full salary.In the course of duty, the respondent became overly concerned with the appellant’s health condition while in office. They noted that the appellant was unable to move around unaided. They requested the appellant to proceed on sick leave until such time when he would be able to move around the office unaided and asked for a medical appraisal of the appellant’s condition in confidence from his medical consultant. The appellant provided the medical report late. As a consequence of the belated medical report, the respondent suspended the appellant and later summarily dismissed the appellant for gross incompetence because of improprieties that arose when the respondent conducted an audit on the appellant’s accounts that revealed a cover up for non-performing accounts contrary to the company's policy and that the appellant had failed to reconcile underwriter accounts in clear violation of his employment contract.
Aggrieved the appellant filed a suit at the Employment and Labour Relations Court (trial court) for unlawful and wrongful termination and for discrimination. The trial court held that the appellant was discriminated against and terminated without being given a chance to be heard. He was awarded Kshs. 5,000,000 as damages for discrimination, 12 months' salary as compensation for unlawful and unfair termination and one month's salary in lieu of notice.
Aggrieved the respondent filed an appeal at the Court of Appeal on grounds that the trial court erred in law and fact in finding that they had discriminated against the appellant and finding that they had unlawfully and unfairly terminated the appellant’s employment. At the Court of Appeal, the court held that although there was no discrimination, the appellant was unfairly terminated. Aggrieved, the appellant filed the instant appeal on grounds that the Court of Appeal erred in law and fact in finding that the appellant was not discriminated against by the respondent. ","Discrimination against any employee was provided for under article 27 of the Constitution as well as sections 5 and 47 of the Employment Act. No person should directly or indirectly discriminate against another person on account of health status or disability.The protection of employees against any form of discrimination at the work place was a significant matter and the burden placed upon an employer to disprove the allegations of discrimination was enormous. The employer had to prove that discrimination did not take place as alleged and that where there was discrimination, it was not with regard to any of the specified grounds in section 5(3) of the Employment Act. That however did not automatically shift the burden of proof in cases of discrimination against an employee to the employer.
According to section 5(7) of the Employment Act, an employer alleged to have engaged in a discriminatory practice had to give reasons for taking certain actions against the employee. Where such actions were shown not to have any justification against the protected group, then discrimination against such an employee had to be addressed. The appellant had discharged the burden of proof and it shifted to the respondent who failed to discharge it on their part.
Section 108 of the Evidence Act provided that the burden of proof in a suit or procedure lay on the person who would fail if no evidence at all were given on either side. Section 109 of the Act declared that, the burden of proof as to any particular fact lay on the person who wished the court to believe in its existence, unless it was provided by any law that the proof of that fact would lie on any particular person. The petitioners bore the overriding obligation to lay substantial material before the court, in discharge of the evidential burden.
Discrimination was failure to treat all persons equally when no reasonable distinction could be found between those favoured and those not favoured. Not all cases of distinction amounted to discrimination. Discrimination could be said to have occurred where a person was treated differently from other persons who were in similar positions on the basis of one of the prohibited grounds like race, sex disability or due to unfair practice and without any objective and reasonable justification.
Direct discrimination involved treating someone less favourably because of their possession of an attribute such as race, sex, religion compared to someone without that attribute in the same circumstances. Indirect or subtle discrimination involved setting a condition or requirement which was a smaller proportion of those with the attribute were able to comply with, without a reasonable justification.
In considering claims of indirect discrimination, courts were:
to identify the relevant provision, criterion or purpose, which was applicable;
to determine the issue of disparate impacts, which entailed identifying a pool for the purpose of making a comparison of the relevant disadvantage;
to ascertain whether the provision, criterion or practice also disadvantaged the claimant personally; and
to consider whether the policy was objectively justified by a legitimate aim; and to consider (if the above requirements were satisfied) whether that was a proportionate means of achieving such a legitimate aim.
The salient features of indirect discrimination were that:
in none of the various definitions of indirect discrimination was there any express requirement for an explanation of the reasons why a particular provision, criterion or practice put one group at a disadvantage when compared with others.
The contrast between the definitions of direct and indirect discrimination. Direct discrimination expressly required a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination did not. Instead it required a causal link between the provision criterion or practice and the particular disadvantage suffered by the group and the individual.
The reasons why one group could find it harder to comply with the provision, criterion or practice than others were many and various.
There was no requirement that the provision, criterion or practice in question should put every member of the group sharing the particular protected characteristic at a disadvantage.
It was commonplace for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence.
It was always open to the respondent to show that the provision, criterion or practice was justified.
The respondent’s actions to terminate the appellant bordered on outright victimization. The appellant’s medical report was not inconclusive. The appellant was not uncooperative in furnishing the report. Though the report was availed, albeit late, no prejudice would have been suffered by the respondent in considering the recommendations. It was the doctor’s recommendation that the appellant should resume duty in two months’ time subject to periodic review of the appellant’s condition. Furthermore, in the respondent’s letter of April 14, 2014, no specific timeline was given to the appellant to avail the report. It only stated, “as soon as possible”. In that regard, the respondent’s action was drastic, harsh and unwarranted in the circumstances.
The respondent ought to have considered the report or even to have at least conducted its own investigation as to the appellant’s medical condition. The onus was on the respondent to investigate the extent of the incapacity or the injury and all the possible alternatives short of dismissal. The respondent was hell-bent in wanting to get rid of the appellant from employment to an extent that they had to circumvent due process in a bid to find fault by conducting extraneous investigations when in fact prior to that they had given him a salary raise due to his hard work. In addition, there was no evidence that investigations were conducted on all other employees during that period and hence he was subjected to different treatment which emanated from his disability. The respondent also failed to demonstrate that they tried to accommodate the appellant in his current state. The actions by the respondent amounted to indirect discrimination due to differential treatment.
The burden of proving that the appellant was medically unfit to continue serving shifted to the respondent to prove the same using an expert opinion. The respondent never produced any medical assessment to demonstrate that the appellant was not capable of performing his duties any more so by virtue of his physical incapacity. The respondent disregarded the appellant’s medical report and proceeded to not only suspend him on medical grounds but eventually terminate him on grounds of gross incompetence and that was unjust and discriminatory.
The respondent was compassionate to the appellant by facilitating the appellant’s treatment and even increasing his salary a month after he resumed work. The salary increase could not be said to have been a sympathetic act by the respondent as that was done on the basis of his great performance at work. The duty to accommodate ought to have been demonstrated after the fact of his physical incapacity. Seemingly, only when it was clear that he needed assistance to move around that the respondent proceeded to suspend the appellant which eventually led to his dismissal. The respondent had an obligation to consider the medical report and to further accommodate the appellant by devising ways that could ease his movements unless they proved that accommodating the appellant would cause undue hardship to the company.
Section 2 of the Persons with Disabilities Act No. 14 of 2003 defined disability as a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacted adversely on social, economic or environmental participation. The Act was silent on what constituted a temporary or permanent disability. As long as the impairment impacted adversely on social, economic, or environmental participation of an individual, it was deemed to be a disability. A perusal of the record of appeal indicated that the appellant accepted his condition and took steps to register with the National Council for Persons with Disabilities as a Person with Disability (PWD) and was issued with a disability card.
Section 15 of the Persons with Disabilities Act No. 14 of 2003 expressly prohibited discrimination by employers. The Act went further to require employers to put in place special facilities in order to accommodate its employees with disabilities. The respondent failed to demonstrate that there was any undue hardship they would have suffered if they chose to reasonably accommodate the needs of the employee by providing amenities such as a ramp to ease the appellant’s movement or even providing flexible working hours.
The respondent expressly admitted that they did not have the facilities to accommodate the appellant in the office. The fact that the respondent expected the appellant to continue working in the same conditions as the rest of the employees was outrightly unreasonable. The respondent arbitrarily resolved that the appellant was no longer productive by virtue of his inability to walk unaided when in fact they failed to demonstrate what steps they took to accommodate him in his state.
The respondent catered for the medical expenses of the appellant through the medical cover and even continued to pay his salary for the period he was away for treatment. The respondent exhibited indirect discrimination towards the appellant.
The issue of gross incompetence was an afterthought. The respondent’s action of dismissing the appellant was extremely harsh and they had not reasonably demonstrated what measures they took to accommodate the appellant’s condition.
The procedure followed to terminate the contract was in breach of sections 41 and 45 (2)(c) of the Employment Act because the appellant was not accorded a chance to defend himself or respond to the allegations against him. Although the letter of appointment provided for no prior notice when terminating the employment due to gross misconduct, that stipulation of the contract could not be used to oust a mandatory and express statutory provision in section 41 of the Employment Act. The failure to follow fair procedure rendered the termination of the appellant’s employment unfair within the meaning of section 45 of the Act.
Although the Court of Appeal found that the summary dismissal was unfair, the court attributed the dismissal to the appellant’s conduct. They held that the appellant’s transgressions contributed to his dismissal when in fact the respondent had been lenient and compassionate to him throughout his sickness. They only took issue with the fact that he was never afforded an opportunity to be heard. Under the Employment Act, there was no express provision for dismissal on medical grounds. However, the employer was required to demonstrate that medical assessments were conducted and that there were circumstances which rendered the employee incapable of performing. In regard to dismissal in cases of incapacity, the respondent was required to have a hearing under section 41 of the Employment Act.
No hearing was demonstrated to have been conducted. The dismissal was unfair and unlawful for failing to accord the appellant a fair hearing. The respondent was required to facilitate the termination in accordance with section 41(1) of the Employment Act in order to come within the ambit of fairness. The allegations that the appellant faced would have well been explained if an opportunity to respond was granted so as to avoid the harsh sanction of a summary dismissal as contemplated under section 41 of the Employment Act. Moreover, section 44(4) of the Employment Act did not give an employer a blanket right to dismiss an employee at will. However grave the circumstances of the employee’s misconduct, the employee was entitled to be heard before he was dismissed.
The right to be heard was the cornerstone of fair labour practices. Where the circumstances did not allow a hearing before summary dismissal, the duty was upon the employer to set such out. The appellant’s summary dismissal was unfair, unjust and unlawful for want of due process.
An award of damages should not be punitive to one party but at the same time it should act as a deterrent to employers who engaged in discriminatory acts. Employment laws in Kenya had made great strides in ensuring that employees were protected from discriminatory acts by the employer and the onus was therefore on employers to ensure that they set out proper policies to govern their engagement with employees, to avoid falling into dangers of workplace discrimination. The award of Kshs 5,000,000 was inordinately high and disproportionate. The award of 12 months’ salary in compensation as awarded by the trial court was sufficient.
An award of damages was discretionary in nature. The Supreme Court could invoke its inherent powers to ensure that justice should not only be done but should  be seen to be done to all litigants.
Appeal partly allowed.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/12/eng@2021-10-22
Petition 18 of 2015,Peter Odiwuor Ngoge  t/a O.P.  Ngoge & Associates v Onyango & 5 others; Attorney General & another (Interested Party) (Petition 18 of 2015) [2021] KESC 10 (KLR) (Civ) (22 October 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",22 October 2021,2021.0,Nairobi,Civil,Peter Odiwuor Ngoge  t/a O.P.  Ngoge & Associates v Onyango & 5 others; Attorney General & another,[2021] KESC 10 (KLR)               ,,"On 5th October 2017, this Court delivered a Judgment in which it dismissed the appeal herein for want of jurisdiction and by a Ruling delivered on 23rd October 2018, the applicant’s Motion for review of that Judgment was similarly dismissed. This being the third time the applicant is having a bite on the same cherry, the facts are not pertinent to the present Ruling.Notwithstanding the finality of our decisions above, the Applicant, on 3rd November 2020, filed yet another application seeking orders to review the Judgment and Ruling on review of the same Judgment.","We have perused that application and can only but agree with the 6th respondent that;The principle of res judicata is squarely applicable to the present Motion as this court has finally and without equivocation settled both the question of the appeal and review thereof. It is an exercise in futility for us to be called upon, again, to determine the same issues – see //John Florence Maritime Services Limited & cnother v Cabinet Secretary, Transport and Infrastructure & 3 others// [2021] eKLR.
ii.
Upon delivery of Judgment and the Ruling on review, this court became {{term{refersTo } functus officio}} and there is no known jurisdiction for it to revisit any aspect of the appeal. Certainly, a review upon a review is completely alien to the Supreme Act and the Rules made thereunder. We settled the issue of functus officio in Menginya Salim Murgani v Kenya Revenue Authority [2014] eKLR.
iii.
On costs, the same principles above apply save that, as the present Motion is utterly frivolous and vexatious, the applicant shall bear the costs hereof.
4.
In the event and for reasons above:
i.
The Notice of Motion dated 14th September 2020 and filed on 3rd November 2020 is hereby struck out.
ii.
The applicant shall pay costs thereof to the 1st, 2nd and 6th respondents, the only parties that responded to the Motion.
5.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/10/eng@2021-10-22
Petition 2 of 2020,Waititu v Republic (Petition 2 of 2020) [2021] KESC 11 (KLR) (22 October 2021) (Judgment),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",22 October 2021,2021.0,Nairobi,Criminal,Waititu v Republic,[2021] KESC 11 (KLR)               ,,"The appellant was arrested and charged with three counts of alleged dealing with suspect property and a charge of conflict of interest. The appellant denied the charges and applied for admission to bail and/or bond. The trial court granted bail by ordering that the appellant could either pay a cash bail of Kshs.15,000,000 or a bond of Kshs.30,000,000 with surety of a similar amount. Further, the trial court went on to attach conditions to the grant of the bail terms by stating that the appellant could not access his public office until the hearing and determination of his case and; that the appellant and all his co-accused were also to deposit their travel documents with the court and were not to contact witnesses either directly or indirectly or in any other way tampering with the exhibits or any evidence.Aggrieved by the orders made by the trial court, the appellant filed a revision of the trial court’s order relating to the bail and bond terms. In the revision application, the appellant, inter alia, stated that the bail and bond terms were excessive, issued per incuriam and the terms amounted to a constructive denial of bail and bond without compelling reasons. The appellant further claimed that the bail terms estopped him from attending to his constitutional office and that the trial court’s orders constituted constructive removal from office. 
The High Court found that it had supervisory and revisionary jurisdiction over interlocutory issues sought to be determined in the course of trial, such as the one that was before the court. The High Court further found that attaching conditions to the grant of bail was not tantamount to removal of the appellant from office. Aggrieved further by the decision of the High Court, the appellant moved to the Court of Appeal. Upon considering the appeal, the Court of Appeal upheld the High Court’s decision and dismissed the appeal. Aggrieved, the appellant filed the instant appeal.","Article 163(4)(a) of the Constitution of Kenya, 2010, (Constitution) had to be seen to be laying down the principle that not all intended appeals lay from the Court of Appeal to the Supreme Court. Only those appeals that arose from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court. It was not the mere allegation in pleadings by a party that clothed an appeal with the attributes of constitutional interpretation or application.The appeal had to originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant had to be challenging the interpretation or application of the Constitution that the Court of Appeal used to dispose of the matter in that forum. Such a party had to be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation of the Constitution, it could not support a further appeal to the Supreme Court under article 163(4)(a) of the Constitution.
The substantive matter as originally filed was pending before the trial court and what was before the instant court was the subject of an interlocutory appeal. The court generally lacked jurisdiction to entertain appeals from interlocutory decisions. The right of appeal against interlocutory decisions was available to a party in a criminal trial but should be deferred, and await the final determination by the trial court. A person seeking to appeal against an interlocutory decision had to file their intended notice of appeal within 14 days of the trial court’s judgment. However, exceptional circumstances could exist where an appeal on an interlocutory decision could be sparingly allowed. They included;
where the decision concerned the admissibility of evidence, which, if ruled inadmissible, would eliminate or substantially weaken the prosecution case;
when the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and
where the decision entailed the recusal of the trial court to hear the cause.
Although what had triggered the appeal was a question on the exercise of judicial discretion in issuing bail terms during the pendency of the trial, the court assumed jurisdiction as the question of whether judicial exercise of discretion had been done in accordance with established principles of law was one which was of sufficient importance in a trial and if not well exercised, provided justification for it to be determined in an interlocutory appeal. In addition, it was possible for bail terms imposed to be final in nature and an accused person, invoking article 49(i)(h) of the Constitution had to ventilate the issue before the close of his trial.
The constitutional right to bail as guaranteed under the Constitution was subject to being granted on reasonable conditions pending trial or unless there were compelling reasons not to do so and did not mean that the right was absolute. The discretion to grant bail and determine the conditions rested with the court. In exercising that discretion, the court however had to seek to strike a balance between protecting the liberty of the accused person and safeguarding the proper administration of justice.
The trial court, at the point of consideration of the application of bail, was not called upon to make a determination on the interpretation of the provisions of section 62(6) of the Anti-Corruption and Economic Crimes Act. Section 62(6) prohibited the suspension of a public officer charged with corruption or economic crime where the Constitution already provided a method for removal, which in the case of a governor, was provided for under article 181 of the Constitution.
Imposing conditions subject to the release of an accused person (in the instant case, the appellant), barring him from accessing his office pending his prosecution for the corruption offences, did not equate to his removal from office, since he remained Governor. There was therefore no need for the application of section 62(6) of the Anti-Corruption and Economic Crimes Act. In addition, the constitutionality or otherwise of section 62(6) could not have been addressed in a bail/bond ruling nor in a revision ruling. Neither could it be properly invoked at both stages of the proceedings.
Article 49(1)(h) of the Constitution provided that an arrested person could be released on bond or bail on reasonable conditions and it entrenched the right of the arrested person to be released on bail subject to the imposition of reasonable conditions. The right to bail was an inalienable right and could only be restricted by the court if there were compelling reasons for an accused not to be released. In granting bail or bond, the trial court was called upon to exercise its discretion and if there were no compelling reasons to deny an accused person bail or bond, the trial court should exercise its discretion in favour of the accused.
When it came to the issue of whether to grant or refuse bail pending the trial of an accused by the trial court, the law had set out some criteria which the trial court should consider in the exercise of its judicial discretion to arrive at a decision. The criteria included among others, the following; -
the nature of the charges;
the strength of the evidence which supported the charge;
the gravity of the punishment in the event of conviction;
the previous criminal record of the accused, if any;
the probability that the accused would not surrender himself for trial;
the likelihood of the accused interfering with witnesses or suppressing any evidence that could incriminate him;
the likelihood of further charges being brought against the accused;
the probability of guilt;
detention for the protection of the accused; and
the necessity to procure medical or social reports pending final disposal of the case.
Limiting the appellant’s access to the county offices of Kiambu County pending the determination of trial did not equate to his removal from office as contemplated under article 181 of the Constitution. Barring a governor from accessing his office pending his trial for corruption charges could not be equated to removal from office. The trial court merely attached a condition to the bail granted for the appellant not to access his office and did not order his removal from office. Removal from office had to be undertaken by the procedure set out in section 33 of the County Governments Act. The procedure was only invoked, not through the ruling of the trial court but by notice to the Speaker of the Kiambu County Assembly which led to the eventual removal of the appellant as Governor.
Discretion by a trial court could be exercised to limit the enjoyment of bail if the accused was likely to interfere with witnesses or suppress the evidence against him. There was no reason to fault the trial court in exercise of that discretion noting the specific circumstances of the case facing the appellant and where his office could be the source of incriminating evidence and staff under him being witnesses. If the appellant was dissatisfied by any condition in the bail ruling, the proper procedure was to seek a review at any stage of his trial and show that the condition was no longer efficacious and ought to be lifted.
The appellant clutched onto the misguided notion of constructive removal, a mirage, when all he had to do was focus on bail terms and conditions and use lawful means to challenge the same. Removal was later conducted, and he was no longer in office. The trial court’s ruling could not therefore be said to be the basis for his eventual removal, and as a basis for challenging the bail ruling.
The trial court considered the nature of the corruption charges and considered the possibility of the appellant interfering with witnesses, who were his subordinates at the time. The need to preserve the integrity of the evidence of the witnesses by finding that it would not be right if the witnesses were to be intimidated by them being suppressed was therefore a valid consideration. The trial court in the event properly considered the usual criteria a court took into account while imposing bail terms. The bail terms imposed were sufficient.
An appellate court should not interfere with the exercise of the discretion of a trial court unless it was satisfied that the trial court misdirected itself in some matter and as a result arrived at a wrong decision, or unless it was manifest from the case as a whole that the trial court was clearly wrong in the exercise of its discretion and that as a result there had been misjustice.
The appellant had not demonstrated how the exercise of discretion was not judicious and how the High Court and the Court of Appeal erred in failing to interfere with the exercise of the trial court’s discretion. There was no reason to interfere with the Court of Appeal’s findings.
Appeal dismissed.  ",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/11/eng@2021-10-22
Application 5 (E007) of 2021,Cape Holdings Limited v Synergy Industrial Credit Limited (Application 5 (E007) of 2021) [2021] KESC 4 (KLR) (8 October 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",8 October 2021,2021.0,Nairobi,Civil,Cape Holdings Limited v Synergy Industrial Credit Limited,[2021] KESC 4 (KLR)               ,,The applicant sought a review of a Court of Appeal ruling in which certification and leave to appeal to the Supreme Court were declined. The applicant also sought a stay of execution of the orders of the Court of Appeal.,"Where leave and certification were sought for purposes of an intended appeal to the Supreme Court and the Court of Appeal declined to grant it, the recourse that such an applicant had if dissatisfied, was to seek a review and not to appeal.The Court of Appeal had declined to grant leave and certification for an intended Supreme Court appeal and the applicant had filed for a review of the Court of Appeal's decision at the Supreme Court. The Supreme Court had jurisdiction to entertain such a review application.
Arbitration was meant to expeditiously resolve commercial and other disputes where parties had submitted themselves to that dispute resolution mechanism. The role of courts had been greatly diminished notwithstanding the narrow window created by sections 35 and 39 of the Arbitration Act. To expect arbitration disputes to follow the usual appeal mechanism in the judicial system to the very end would sound a death knell to the expected expedition in such matters. In conformity with the principle of the need for expedition in arbitration matters, where the Court of Appeal assumed jurisdiction in an arbitration matter and delivered judgment, no further appeal should ordinarily lie therefrom to the Supreme Court.
The Supreme Court lacked jurisdiction to entertain the intended appeal as it was challenging a Court of Appeal judgment after jurisdiction had been assumed by the Court of Appeal in an arbitration matter in accordance with case law.
Application dismissed  with costs to the respondent's.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/4/eng@2021-10-08
Motion 21 of 2016,Goldenlime International Limited v Bluesea Shopping Mall Limited & 3 others (Motion 21 of 2016) [2021] KESC 2 (KLR) (Civ) (8 October 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola","October 8, 2021",2021.0,Nairobi,Civil,Goldenlime International Limited v Bluesea Shopping Mall Limited & 3 others,[2021] KESC 2 (KLR)               ,,"Brief factsSometimes in 2008, the City Council of Nairobi (Nairobi City County), the 2nd respondent, invited the public including, private sector players to partner with it in the development of markets in various locations within the City of Nairobi under the auspices of private/public sector partnership strategy. Eastleigh market that was situated on the suit property was among the markets earmarked for development. The applicant was subsequently awarded the contract. Aggrieved by the 2nd respondent’s decision to award the applicant the contract, the 1st respondent filed judicial review proceedings at the High Court seeking certiorari and mandamus orders to impugn the decision to award the contract to the applicant for failing to follow due procedure. The High Court though finding merit in the application, declined to grant the orders and stated that the matter called for exercise of discretion and that even when merited, a court had the discretion to refuse to grant judicial review orders.Aggrieved by the High Court’s decision, the 1st respondent filed an appeal in the Court of Appeal which was allowed. The Court of Appeal found that the factors considered by the High Court in its decision not to grant the orders sought did not justify refusal of the orders. Aggrieved by that decision, the applicant filed an application seeking certification that a matter or matters of general public importance were involved in the intended appeal and asked to be granted leave to lodge an appeal before the Supreme Court. Dissatisfied with the ruling of the Court of Appeal declining to certify the matter as of general public importance, the applicant filed an originating motion praying that the court determines among others; whether the Supreme Court should review the ruling dismissing the application for grant of certification. The applicant also filed a notice of motion application dated October 5, 2016 seeking issuance of a conservatory order restraining any further dealing in the suit property. Subsequently, the application was heard by a single judge of the Supreme Court who issued a conservatory order restraining the 2nd respondent from dealing with the suit property in a manner that rendered the originating motion nugatory to the detriment of the applicant. The orders of the single judge aggrieved the 3rd and 4th respondents, necessitating them to file a notice of motion dated October 24, 2016 seeking among others prayers that the orders of the single judge be discharged, set aside and/or vacated in its entirety and that the originating motion be struck out from the court record.","D. Issues for Determination
38.
Three issues arise for determination in this matter, namely;
i.
Whether this Court has jurisdiction to determine the review application against conservatory orders granted; and if yes,
ii.
Whether a case has been made to warrant that review.
iii.
Whether the Court of Appeal erred in declining to certify the matter as one of general public importance
39.
In framing these issues, we have decided that the application seeking conservatory orders by the applicant no longer requires our intervention in view of the lapse of time since interim orders were granted. Instead, we shall focus on the motion for setting aside of those orders and then determine the originating motion with finality, one way or the other.
E. Analysis
40.
We note that the 3rd and 4th respondent’s in their application, have moved this Court under sections 21 and 24 of the Supreme Court Act No. 7 of 2011 (repealed). The 1st, 3rd and 4th Respondents’ contention in that regard is that the single Judge lacked the requisite jurisdiction to grant conservatory orders. It is also their argument that, by granting the conservatory orders, the single Judge determined the issues in the Notice of Motion with finality rendering the Motion spent without according the Respondents an opportunity to be heard.
41.
The 1st, 3rd and 4th respondents also argue that the single Judge lacks jurisdiction to issue interlocutory orders to a party seeking leave to appeal under article 163(4)(b) of the Constitution. Put in a simple and much clearer form, they argue that the interlocutory orders sought could not be granted when there is no substantive appeal filed for determination before us.
42.
The determination of the above question and not in the convoluted language of Counsel for the 3rd and 4th respondents, shall require us to interrogate whether the single Judge correctly exercised the powers donated by section 24(1) of the Supreme Court Act which provides;
(1)
In any proceeding before the Supreme Court, any judge of the Court may make any interlocutory orders and give any interlocutory directions as the judge thinks fit, other than an order or direction that determines the proceeding or disposes of a question or issue before the Court in the proceeding.
(2)
Any person dissatisfied with the decision of one judge in the exercise of a power under subsection (1) is entitled to have the matter determined by a bench of five judges.
(3)
Any judge of the Supreme Court may review a decision of the Registrar made within the civil jurisdiction of the Court under a power conferred on the Registrar by the rules, and may confirm, modify, or revoke that decision as the judge thinks fit.
43.
Subsection (4) then lists the powers of a five-Judge bench in adjudicating on orders granted by a single Judge. The said provision states:
1(4) The judges of the Supreme Court who together have jurisdiction to hear and determine a proceeding may—
(a)
discharge or vary an order or direction made or given under subsection (1); or
(b)
confirm, modify, or revoke a decision confirmed or modified under subsection (2).
44.
Rule 4 (3) of the Supreme Court (Amendment Rules) 2016 provides that:
Without prejudice to the provisions of sub-rule (1) or sub-rule (2), a single Judge of the Court may hear applications and make Orders with regard to-
i.
change of representation;
ii.
admission of consent;
iii.
consolidation of matters;
iv.
dismissal of a matter for want of prosecution;
v.
correction of errors on the face of the record;
vi.
withdrawal of documents;
vii.
review of the decision of the registrar;
viii.
leave to file additional documents;
ix.
admission of documents for filing in the Registry; or
x.
substitution of service.”
It is these provisions we must apply in determining the application for setting aside the conservatory orders issued by Njoki Ndungu, SCJ.
i. Does the Court have jurisdiction to grant interlocutory orders?
45.
This Court in the case of Board of Governors, Moi High School, Kabarak & another vs. Malcolm Bell, Sup. Ct. Petitions 6 & 7 of 2013 [2013] eKLR considered the standing of interlocutory applications before the Supreme Court and the import of Section 24(1) of the Supreme Court Act, 2011 as well as the powers of the Supreme Court to grant interlocutory orders, within the substantive matter of an appeal. The Court held thus:
“
Does the grant of interlocutory relief in the instant matter encroach on the jurisdiction of the Court of Appeal? We do not think so. For interlocutory applications in the nature of injunctions and stay of execution are made within the substantive matter of the appeal; and that is the case, in this instance. The Court has jurisdiction to hear and determine such interlocutory applications with special regard to the circumstances of each case. Where necessary, this Court mayalso exercise its discretion to decline to grant interlocutory relief, if the same may imperil the ultimate function of the Court – to render justice in accordance with the Constitution and the ordinary law."" [Emphasis ours]
46.
The Court went on to discuss the Supreme Court’s jurisdiction in respect of interlocutory orders, its origins and the principle behind it. The Court held:
“
In our opinion, the Supreme Court’s jurisdiction in respect of interlocutory orders, such as stay-of-execution orders, firstly, emanates directly from the statute law and the rules; and secondly, rests on the rational principle that the appellate power of “review and possible reversal” of the substantive judgment appealed against, is destined to be lost unless a requisite interlocutory order was made…
It is clear to us that if interlocutory applications are excluded as a necessary step to preserve the subject-matter of an appeal, the Supreme Court’s capability to arrive at a just decision on the merits of the appeal, would be substantially diminished. Both the Constitution and the Supreme Court Act have granted the Court the appellate jurisdiction; and within that jurisdiction, the parties are at liberty to seek interlocutory reliefs, in a proper case.”
47.
So then, how does the above finding resonate with the issue of whether a single Judge may give/grant in proceedings, interlocutory directions? What has been the practice and position of this Court in this regard?
48.
The case of Yusuf Gitau Abdallah vs. Building Centre (K) Ltd & 4 others Sup. Ct. Petition No. 27 of 2014 [2014] eKLR, presented a similar situation, in which the single Judge, Ibrahim SCJ, in considering the provisions of Section 24(1) of the Supreme Court Act held thus:
“
As I make the determination herein, I am conscious of the provisions of Section 24(1) of the Supreme Court Act 2011 which provides as follows:-
“ 24. (1) In any proceeding before the Supreme Court, any judge of the Court may make any interlocutory orders and give any interlocutory directions as the judge thinks fit, other than an order or direction that determines the proceeding or disposes of a question or issue before the Court in the proceeding.
The meaning and effect of the said provision is that a single judge in a proceeding or proceedings may give any interlocutory order and give any interlocutory directions as he/she think fit other than an order or direction that determines the proceeding or disposes of a question or issue before the Court in the proceedings.”
49.
Another case where this Court considered the standing of the provisions of Section 24 of the Supreme Court Act 2011, is Kalpana H Rawal & 2 others v. Judicial Service Commission & 2 others Sup. Ct. Application No. 11 0f 2016 [2016] eKLR where a single Judge issued conservatory orders ex-parte. Though the Court, by majority, ruled to vacate the conservatory orders that were granted,the meaning and effect of Section 24(2) of the Supreme Court Act was discussed earnestly. Mutunga, CJ (as he then was) in that regard expressed himself thus;
“
Section 24 of the Act empowers a single judge to make any interlocutory orders and give any directions other than an order or direction which determines the proceedings or disposes of the questions in issue. This provision of the Act has yet to be interpreted by this Court. In my view, the interpretation and application of Section 24 of the Act read together with Rule 4, as I have signalled above must be brought within the ambit of Articles 10 and 20 of the Constitution and must accord with the canons of interpretation established in other decisions of this Court…
Caution must be sounded to all judges of this Court that discretionary powers under Section 24 are not absolute in a similar way that the powers of the Chief Justice under any law are not without limitations. All judges of this Court must appreciate that Section 24 is neither a blank cheque giving room for a relapse into the old jurisprudence of technicalities n0r is it an invitation to non-adherence of constitutional values and principles of governance…”
50.
Counsel for the 3rd and 4th Respondent has, also in adopting the above view, argued that under the provisions of Article 163(2) of the Constitution, a proper Bench before this Court is constituted by five Judges and that a single Judge sitting alone cannot constitute the Supreme Court. It was his argument therefore that a single Judge, cannot in that capacity, issue orders that are interlocutory in nature.
51.
In that context, Article 163(2) of the Constitution provides that:
“
The Supreme Court shall be properly constituted for the purposes of its proceedings if its composed of five Judges.”
52.
Wanjala, SCJ in his Ruling in Kalpana H. Rawal & 2 others v. Judicial Service Commission & 2 others (supra), discussed the powers of a single Judge by reading Section 24(1) of the Supreme Court Act alongside Article 163(2) of the Constitution by holding as follows:
“
It is my view that Section 24(1) of the Supreme Court Act must be read alongside Article 163 (2) of the Constitution…
Strictly speaking therefore, in the light of Article 163(2) of the Constitution, a single Judge sitting before the empaneling of a five-Judge Bench cannot constitute the Supreme Court. A single Judge issues ex parte Orders not in his or her capacity as the Supreme Court, but as an agent of the yet to be empaneled Bench of the Court. This explains why such orders must be very temporary in nature and only last up to and until a five-Judge Bench is constituted by the Chief Justice.”
53.
On reflection, whereas the 3rd and 4th Respondents are correct in their interpretation of Article 163(2), we are inclined to agree with Wanjala, SCJ that, a single Judge, can as a matter of discretion, issue interlocutory orders for a very limited time to ensure that the subject matter of an appeal is not wasted in the intervening period and that the caution expressed by Mutunga, CJ in Kalpana H. Rawal & 2 others vs. Judicial Service Commission & 2 others (supra)must be at the back of each Judge’s mind.
54.
Section 24(1) of the Supreme Court Act occupies a central place in the operations of the Court, and unless orders are issued to declare the same unconstitutional by proper proceedings filed to do so, remains an operative and lawful provisions, the protestations of Counsel for the 3rd and 4th Respondents notwithstanding.
ii. Can this Court review interlocutory orders granted by a single Judge?
55.
The next question for determination before us is; can interlocutory orders granted by a single Judge be reviewed? Section 24(2) of the Supreme Court Act, 2011 and Rule 4(4) of the Supreme Court Rules, 2012 essentially provide that decisions of a single Judge may be reviewed by a bench of five Judges. This Court in the case of Fredrick Otieno Outa v. Jared Odoyo Okello & 3 Others Sup. Ct. Petition No. 6 of 2014 [2017] eKLR addressed the question, in detail, as to whether the Supreme Court has jurisdiction to review its own decisions and the inherent powers and jurisdiction of the Court in that regard. This power is general and is not limited to single Judge matters only. The Court held thus:
“
Taking into account the edicts and values embodied in Chapter 10 of our Constitution, we hold that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated in paragraph (90) above. However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:
i.
the Judgment, Ruling, or Order, is obtained, by fraud or deceit;
ii.
the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
iii.
the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;
iv.
the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision. [Emphasis ours]
56.
In the present case, we note that the single Judge exercised her discretion in allowing the Applicant’s Notice of Motion and granted the orders sought albeit for a temporary period. The Respondents could have chosen to respond to the substantive application or seek a review of the single Judge’s orders. They sought the latter. The jurisdiction of this Court on the conditions for grant of a review order was as found in the case of Parliamentary Service Commission v. Martin Nyaga Wambora & Others Sup. Ct. Application No. 8 of 2017. The Court, in the above context discussed whether it can interfere with the exercise of discretion of one or a limited Bench and held:
“
Can this Court, constituted as a five Judge Bench interfere with the exercise of discretion by a Two Judge Bench? The answer is yes. This Court has the power to rise above a decision of one or a limited Bench, where compelling reasons are given that the decision given was erroneous. However, as such a review will entail an interference with the exercise of a judge’s discretion, it is guided by stringent legal principles.”
57.
The Court even as it expressed itself above, went on to caution and draw strong emphasis to the point that, an application for review of a decision is not one to be undertaken in a casual way, since the decision to review is not one falling under the appellate jurisdiction mandate of the Court. The Court expressed itself as follows in that regard:
“
We reiterate that an application for review of a decision of a single or Limited Bench of this Court by a Bench of five or more, is not as a matter of course to be undertaken in a casual way. The provisions in the Act and the Rules allowing review of such a decision before a bench of five or more are not part of the normal appellate jurisdiction mandates of this Court so that any decision made by a limited Bench of the Court will automatically be ‘reviewed’ by a Bench of five Judges or more. That will be tantamount to abuse of Court. The review window is to be exercised sparing and only deserving cases have to be allowed.
This Court notes with concern that if caution is not taken, then in the ultimate, the abuse of Section 24(2) and Rule 4(4) by filing of frivolous applications seeking review will defeat the whole essence and spirit of the legislation and the jurisprudence in Erad suppliers (above), which is the law to date, that procedural matters be handled by a limited Bench. And while these provisions were meant to speed up access to justice, their abuse will in turn inhibit access to justice by allowing all and sundry review applications to clog the system and take up precious judicial time.
58.
The Court then went on to lay down the guiding principles for a review of the decision of the Court made in exercise of its discretion by holding as follows;
“
Consequently, drawing from the case law above,particularly Mbogo and Another vs. Shah, we lay down the following as guiding principles for application(s) for review of a decision of the Court made in exercise of discretion as follows:
(i)
A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a Limited Bench of this Court.
(ii)
Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court;
(iii)
An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application.
(iv)
In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically.
(v)
During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review.
(vi)
The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:
(a)
as a result a wrong decision was arrived at; or
(b)
it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.”
59.
Further, in the case of Tom Odhiambo Ojienda vs. Kenya Revenue Authority & another Sup. Ct. Petition No. 6 of 2019 [2019] eKLR this Court pronounced itself as follows in regard to review of decisions of a single Judge and flowing from the general principles above. We stated thus:
“
On our part, we find that Section 24(2) of the Supreme Court Act, 2011 and Rule 4(4) of the Supreme Court Rules, 2012 contemplates that decisions of a single Judge may be reviewed by a bench of five Judges. Further, that the jurisprudence of this Court on the conditions for grant of a review order was well expressed in the case of Parliamentary Service Commission v. Martin Nyaga Wambora & Others Sup. Ct. Application No. 8 of 2017; [2018] eKLR in which we held that in an application for review, the Applicant has to demonstrate how a single Judge erred in making the impugned decision or how the said decision is clearly wrong as a result of which there has been an apparent injustice.”
60.
We reiterate the above decisions as solid and flow from a holistic interpretation of the Constitution and Statute. Nothing, in the scornful submissions of Counsel for the 3rd and 4th Respondents’ have had the effect of swaying our collective mind to the contrary. Instead of focusing on the principles for setting aside a single Judge’s decision, Counsel has instead engaged in an unwarranted rant on prior decisions of the Court on this subject. The rant has been of no benefit to his clients and that is all we have to say on the prayer for setting aside and/or review of the single Judge’s order.
iii. Whether the Court of Appeal erred in declining to certify the matter as one of general public importance
a. Jurisdiction of the Court
61.
Counsel for the 3rd and 4th respondents contests this Court’s jurisdiction to review, set aside or discharge an order of refusal of certification by the Court of Appeal declining to certify a matter as one of general public importance. It is their claim that under the provisions of article 163(4)(b) of the Constitution, only a litigant aggrieved with the grant of certification by the Court of Appeal can apply to the Supreme Court for a review of the certification. It is also Counsel’s argument therefore that an application for review filed before this court only applies in cases where certification has been granted by the Court of Appeal and not in cases where the certification was denied in the literal reading of the provisions of Article 163(5) of the Constitution. To this end, counsel sought to have the Supreme Court declare that this court’s findings in the Sum Model Case and the Hermanus Case were in conflict with the Constitution.
62.
The decision in the Hermanus Case is also the basis of Counsel’s submission that there are two distinct and separate rights of certification for leave to appeal to the Supreme Court; from the Court of Appeal, and directly to the Supreme Court and therefore, the two Courts have concurrent original jurisdiction in the matter. In that regard, he faults this Court’s decision in the Sum Model Case arguing that the Court’s finding that certification should be first sought at the Court of Appeal denies a party the right of choice as provided for under Article 163(4)(b) of the Constitution.
63.
In that regard, article 163(4)(b) of the Constitution provides that appeals shall lie from the Court of Appeal to the Supreme Court ‘in any other case in which the Supreme Court or the Court of Appeal certifies that a matter of general public importance is involved, subject to clause (5). Article 163(5) goes on to state that ‘a certification by the Court of Appeal under clause 4(b) may be reviewed by the Supreme Court and either affirmed, varied or overturned’.
64.
In the Sum Model case, the court was of the view that the Supreme Court and the Court of Appeal must both be satisfied that a matter of general public importance arises, upon which the courts may issue a certificate for leave to appeal. Further to this, the court found that it would be best practice for the matter to originate before the Court of Appeal, upon which, should an applicant be aggrieved with the Court of Appeal’s decision, a review of that decision by this court is then allowed under article 163(5) of the Constitution. The court held thus:
“
This being an application for leave to appeal against a decision of the Court of Appeal, it would be good practice to originate the application in the Court of Appeal which would be better placed to certify whether a matter of general public importance is involved. It is the Court of Appeal which has all along been seized of the matter on appeal before it. That Court has had the advantage of assessing the facts and legal arguments placed and advanced before it by the parties. Accordingly, that Court should ideally be afforded the first opportunity to express an opinion as to whether an appeal should lie to the Supreme Court or not. If the applicant should be dissatisfied with the Court of Appeal’s decision in this regard, it is at liberty to seek a review of that decision by this Court as provided for by article 163 (5) of the Constitution. To allow the applicant to disregard the Court of Appeal against whose decision it intends to appeal and come directly to this court in search of a certificate for leave, would lead to Abuse of the Process of Court.”
65.
Further to the above finding, in the Hermanus case, it was our finding that any party may approach the Supreme Court for review of the decision of the Court of Appeal granting leave or denying leave under article 163(5) of the Constitution, even in instances where an applicant has not been granted leave by the Court of Appeal. The court then went on to acknowledge its mandate under articles 159 and 259 of the Constitution by harmonising its mandate with the fundamental rights under the Constitution on equal right of access to justice for all parties and non-discrimination. The court held as follows;
“
(32)
The second question was in relation to the extent of this review jurisdiction, with the respondent averring that it only lies where a matter has been certified as of general public importance. In answering this question, the court is alive to its mandate under articles 159 and 259 of the Constitution, which provide:
“
259(1)
This Constitution shall be interpreted in a manner that-
e.
promotes its purposes, values and principles;
f.
advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
g.
permits the development of the law; and
h.
contributes to good governance.
33)
Hence, in interpreting the review competence of the Supreme Court, the mandate must be harmonised with the Constitution. One of the fundamental rights under the Constitution is access to justice for all, and non-discrimination. Consequently, all litigants are to be accorded equal right of access to the Court. Either party can approach the Supreme Court for review under article 163(5). A party may come for review of the decision granting leave or denying leave. Hence, we hold that certification under article 163(5) should be broadly read as alluding to certification by the Court that a matter of public importance is involved, or is not involved. Hence, the applicant is rightly before the court, despite seeking a review where there was no leave granted by the Court of Appeal.” [Emphasis ours]
66.
The same submissions by counsel for the 3rd and 4th Respondent were also argued before us in the case of Republic v. Ahmad Abolfathi Mohammed & Another Sup. Ct. Criminal Application No. 2 of 2018 [2018] eKLR where the issue of this Court’s jurisdiction under the provisions of article 163(5) to review a denial of certification by the Court of Appeal is provided for. We reiterated our finding in the Sum Model case and the Hermanus case by finding that under article 163(5) of the Constitution, the Supreme Court has jurisdiction to review a decision by the Court of Appeal granting or declining certification. We also went on to reiterate that to deny a party aggrieved by the decision of the Court of Appeal declining certification audience would amount to violation of the provisions of articles 27 and 50 of the Constitution. We rendered ourselves thus on that issue:
“
(19)
…As this court observed in the Hermanus case, in interpreting the review jurisdiction in article 163(5), regard should be had to the dictum of harmonization under article 259(1) of the Constitution and giving the term “certifies” or “certification” in article 163(4)(b) of the Constitution a broad interpretation. In that regard therefore, and on the facts of this case, the principles of non-discrimination under article 27 and fair hearing under article 50 should never be lost sight of. We therefore find that to deny a party aggrieved by a refusal to grant certification that a matter is one of general public importance is discriminatory and contrary to article 27 and a denial of the right to a fair hearing under article 50(1) of the Constitution.
(20)
In the circumstances, we reiterate this Court’s finding in both the Sum Model and Hermanus cases that article 163(5) of the Constitution vests the Supreme Court with jurisdiction to review the Court of Appeal’s decision to grant or decline certification that a matter is one of general public importance. We therefore also affirm the words of rule 24(2) of the Supreme Court Rules, 2012 that “[w]here the Court of Appeal has certified or has declined to certify a matter to be of general public importance, an aggrieved party may apply to the Court for review within fourteen days.”
67.
We also adopted this position in the case of Kenya Civil Aviation Authority vs. African Commuter Services Ltd & Another Sup. Ct. Civil Application No. 7 of 2015 [2018] eKLR where we were of the view that the Hermanus Case is still good law and with no proper principles invoked to convince the Supreme Court to depart from the findings in the Sum Model Case and the Hermanus Case, then the same stands as good law.
68.
Further, the question on concurrent jurisdiction was settled in the Hermanus case where it was the Court’s finding that we indeed have concurrent jurisdiction and further reiterated our finding above in the Sum Model case that it is in good practice that certification be first sought before the Court of Appeal. This court duly noted thus;
“
The other issue raised was as to the concurrent jurisdiction of both the Court of Appeal and the Supreme Court, in granting leave to appeal to the Supreme Court. The respondent averred that once the concurrent original jurisdiction has been exercised under article 163(4) (b) by the Court of Appeal, it was no longer tenable for the Supreme Court to exercise the same jurisdiction. Adopting the definition in Black’s Law Dictionary on ‘concurrent jurisdiction’: ‘Concurrent jurisdiction. (17c)1. Jurisdiction which might be exercised simultaneously by more than one court over the same subject matter and within the same territory, a litigant having the right to choose the court in which to file the action,’ we would agree with counsel that, indeed, we have concurrent jurisdiction; and when one opts to exercise one’s right under either of the entities with jurisdiction, one cannot again go before the other entity with the same subject matter. This is the reasoning behind the principle of res judicata in civil matters, in choosing the Court (forum) in which to institute a matter. This is the reasoning held sacrosanct in criminal matters under the doctrine of double jeopardy (especially with reference to international crimes like genocide, piracy and war crimes where all nations have jurisdiction)…
The question then is whether, by coming to the Supreme Court, the applicant is invoking the original jurisdiction of the Court. The answer readily emerges from the Sum model Case…
Consequently, it is our decision that, by first proceeding to the Court of Appeal as in this case, and then to the Supreme Court, one does not invoke the original jurisdiction, so as to warrant a question of “res judicata...”
69.
We see no reason to depart from this finding and affirm the provisions of rule 24 (1) and (2) of the Supreme Court Rules 2012 (repealed) that “An application for certification shall first be made in the court or tribunal it is desired to appeal from and (2) Where the Court of Appeal has certified a matter to be of general public importance, an aggrieved party may apply to the Court for review within fourteen days.
70.
The said provisions are also provided for under rule 33 (1) and (2) of the Supreme Court Rules, 2020 that (1) An application for certification shall, in the first instance, be made in the court from which the appeal originates and that (2) Where the Court of Appeal has certified or has declined to certify a matter as one of general public importance, an aggrieved party may apply to the Court for review, within fourteen days.
71.
In the circumstances and based on the above findings, we find that we have jurisdiction to hear this application.
b. The Substantive Application
72.
Having affirmed our jurisdiction and that the originating motion dated 5th October 2016 is properly before us, we now proceed to consider the question whether it raises issues of general public importance.
73.
We note that the applicant has not set out the matters of general public importance that require our intervention. Nevertheless, from the Record, the applicant outlined issues which it claimed touched on application of procurement laws and management of Public Private Partnerships, which are;
i.
The parameters and threshold that should govern the Court’s intervention in a concluded contract by a State Organ on the basis of procurement laws noting that the propensity in recent time to so intervene invites the definitive and authoritative pronouncement of the highest Court in the land as to such threshold and parameters.
ii.
The doctrine of the separation of powers between devolved Government and the Judiciary under the 2010 Constitution.
iii.
The applicability of the Transitional Provisions in the 2010 Constitution which constituted the Nairobi City County as a Government and the successor in title to properties and contractual properties and contractual relationships entered into by the former Nairobi City Council in accordance with the then applicable Laws and Regulations.
74.
This court in the Hermanus case held that whether a matter is one of general public importance is an issue to be determined on a case to case basis as guided by its peculiar facts of each case and that for a case to be certified as one involving a matter of public importance;
“
…the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one, the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
ii.
where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;
75.
From the record, the suit before the High Court and the Court of Appeal was on the exercise of discretion to grant judicial review orders of certiorari and mandamus. The crux of the dispute was on whether the 2nd respondent had complied with the provisions of the Public Procurement and Disposal Act 2005 in awarding the tender to the Applicant. The trial Court found that there was procedural impropriety by the 2nd respondent in awarding the tender but declined to grant the orders sought.
76.
The Court of Appeal, while determining the appeal, noted that the main issue for its consideration was whether the trial Court properly exercised its discretion in failing to grant the orders. In its decision, the Court noted that there were no circumstances that militated against the grant of the orders of certiorari and mandamus, noting that the High Court, having found that the provisions of the Public Procurement and Disposal Act 2005 were not complied with, erred in declining to exercise its discretion by its refusal to grant the orders sought in the judicial review application.
77.
The Court of Appeal, while considering the application for certification noted;
“
(19)
It is also evident the applicant did not frame the issues that are matter(s) of general public importance. However, from the arguments by counsel for the applicant, it appears to us that the matter of exercise of judicial discretion is the only issue as the issue of whether the Court of Appeal held the procurement Rules and Regulations ought to have been followed retrospectively did not stand the test in view of the finding by the Court of Appeal that the Public Procurement and Disposal Regulations were not issued and therefore they could not be applied retrospectively…
(21)
We have gone through the judgment of this court and find this issue of discretion was thrashed to a pulp as the judges gave a very lengthy exposition on why the learned trial judge’s exercise of discretion was patently wrong in the circumstances of the matter… It is therefore not surprising that the applicant was not able to formulate any issues of law that constitute matter(s) of general public importance for certification arising on the said judgment as set out in the case of Hermanus Philipus Steyn (supra) …”
78.
We agree with the Court of Appeal’s observation that the intended appeal does not raise an issue where we need to make a pronunciation on clarification of the law to the benefit of the public as opposed to the parties before us. The Applicant has not demonstrated the uncertainty that we need to adjudicate and clarify on. We are also in agreement with the Court of Appeal that the appeal was based solely on exercise of discretion by the High Court which issue has no public importance attached to it on the discretion of the court. We are in further agreement with the Court of Appeal that whether the guidelines could apply retrospectively does not need any clarification by this court since the effect of such application of the guidelines to a case, would vary depending on the facts of each case.
79.
Even if we were to consider the matter as one of general public importance because the suit property is said to be public land with the 2nd respondent being the lessor, the premises are the subject of various suits in the Environment and Land Court as between the 3rd and 4th respondents and the 2nd respondent and other third parties for determination of its ownership. This was well acknowledged by both the High Court and the Court of Appeal. Our intervention would therefore be in vain.
80.
Accordingly, the application fails to comply with the principles in the Hermanus case and is therefore one for dismissal.
F. Conclusion
81.
Turning back to the issues placed before us for determination, we have declined the invitation to overturn the decision of the single judge and have also declined to certify the originating motion as raising issues involving great public importance. We have also stated that all prior decisions that the 3rd and 4th respondents’ seek to be declared bad law shall remain binding on all parties and the threshold in article 163(7) of the Constitution has not been met. Similarly, we have declined the unprocedural invitation and attempt at declaring section 24 of the Supreme Court Act, unconstitutional. On costs, the 1st, 3rd and 4th respondents’ shall have costs of the originating motion but each party should bear its costs of the review application.
G. Disposition
82.
For the above reasons, the final orders to be made are that:
i.
The 3rd and 4th respondents’ notice of motion dated 24th October 2016 is hereby dismissed.
ii.
The applicant’s notice of motion dated 5th October 2016 is hereby marked as spent.
iii.
The originating motion dated 5th October 2016 by the applicant is hereby dismissed.
iv.
The 1st, 3rd and 4th respondents shall have the costs of the originating motion while each party shall bear the costs of the motion dated 24th October 2016.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/2/eng@2021-10-08
Petition 7 of 2017,Kanyuira v Kenya Airports Authority (Petition 7 of 2017) [2021] KESC 7 (KLR) (Civ) (8 October 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",8 October 2021,2021.0,Nairobi,Civil,Kanyuira v Kenya Airports Authority,[2021] KESC 7 (KLR)               ,,"A. Introduction
[1]
The principles that a party must bring forward his entire case when instituting an action, and that a party should not be vexed twice, are both exemplified by the Latin maxims, interest reipublicae ut sit finis litium (it is in the interest of the State that there be an end to litigation) and nemo debet bis vexari pro una eteadem causa (no one shall be twice vexed for the same cause). These principles are the foundation of the doctrine of res judicata.
[2]
Put differently, once a party brings before the court his entire case, he will be bound by the resulting decision and will not be permitted to re-open that decision on the basis of matters which could have been raised, but which were not at the trial.
[3]
Typically, after analysing all the evidence, the trial court will determine the controversy based on the evidence before it. In an appeal, the appellate court is concerned with the question whether the lower court has appreciated the evidence properly or not and whether the law has been interpreted correctly. But if, subsequent to the judgment, and before the decision of the appellate court, the appellant wishes to present evidence that he ought to have tendered at the trial but did not, certain prescribed conditions must be satisfied.
[4]
The English Court of Appeal in the case of Ladd v Marshall [1954] 1 WLR 1489 established three-part test, namely, non-availability, relevance and reliability, for the appellate Court to accept fresh evidence in a case on which a judgment has already been delivered. Laying down the definitive rule for the admissibility of new evidence Denning LJ, explained that;
“
In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible”.
[5]
This criteria, today known as the rule in Ladd v Marshall has been applied in many decisions in this country, for instance, by the Court of Appeal in CMC Aviation Ltd v Kenya Airways Ltd (Cruisair Ltd ) [1978] eKLR and most recently by this Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others , where the original three-part test was refined through the court’s interpretation of rule 18 of the Supreme Court Rules, 2012 (presently rule 26 of the Supreme Court Rules, 2020), as shall be shown shortly.
B. Background
[6]
The cause of action arose when the applicant, who is the registered owner of parcel of land known as LR No 209/11444, adjacent to the Wilson Airport, sought to develop it after securing financing. Upon commencement of the project, the applicant was served with a cessation order issued by the respondent in exercise of its powers under the Kenya Airports Authority Act (KAA Act). The respondent claimed that the suit land falls within the protected airport aircraft runway protection zone.
C. In the High Court
[7]
Aggrieved, the applicant petitioned the High Court in Petition No 83 of 2012, Patrick Thoithi Kanyuira v Kenya Airports Authority, challenging the cessation order. In rejecting the petition, the High Court, Lenaola J (as he then was), found that; the respondent had not compulsorily acquired the property but merely restricted the activities that could be carried out on it, which restriction, strictly speaking, did not extinguish the applicant’s proprietary rights; that the respondent acted well within its statutory powers; and that the applicant ought to have sought the respondents’ prior approval before embarking on the construction.
D. In the Court of Appeal
[8]
This decision was upheld on appeal by the Court of Appeal, where it was reaffirmed that; the applicant had proceeded with construction without the approval of the respondent; that, because of the restrictions imposed on the applicant’s property, the respondent offered to exchange it with another one; and that the respondent’s action in issuing a cessation order was within the law, and did not amount to constructive compulsory acquisition.
","G. Analysis and Determination
[20]
The only question the motion raises is, whether the applicant has met the threshold for the grant of leave to present additional evidence pursuant to rule 18 of the Supreme Court Rules,2012 and in accordance with the strictures established in the Mohamed Abdi Mahamud case (supra).
Rule 18 provides that;
“
18(1)The court may in any proceedings, call for additional evidence.
(2)A party seeking to adduce additional evidence under this rule shall make a formal application before the court.
(3) On any appeal from a decision of the Court of Appeal, or any other court or tribunal acting in the exercise of its original jurisdiction, the court shall have power —
……
(c)in its discretion, for sufficient reason, to take additional evidence or to direct that additional evidence be taken by the trial court or by the
Registrar”. (Our emphasis).
[21]
Earlier on, in Raila Odinga and 5 others v Independent Electoral and Boundaries Commission & 3 others [2013] eKLR, this court cautioned that it will be reluctant to grant leave for the filing of further affidavits and/or admission of additional evidence, if the evidence is such as to make it difficult or impossible for the other party to respond effectively. Therefore, the court must act with abundant caution and care in the exercise of its discretion under this rule.
[22]
In paragraph 79 of our Ruling in the Mohamed Abdi Mahamud case (supra), the court declared the circumstances under which additional evidence may be admitted, expanding three-part test in Ladd v Marshall [supra] as follows;
“
We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:
a.
the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
b.
it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
c.
it is shown that it would not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
d.
where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
e.
the evidence must be credible in the sense that it is capable of belief;
f.
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
g.
whether a party would reasonably have been made aware of and procured the further evidence in the course of the trial is an essential consideration to ensure fairness and due process;
h.
where the additional evidence discloses a strong prima facie case of willful deception of the court;
i.
the court must be satisfied that the additional evidence is not utilized for the purpose of removing the lacunae and filling gaps in evidence. The court must find the further evidence needful;
j.
a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in the appeal, fill up omissions or patch up the weak points in his/her case;
k.
the court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”
The court also stressed that, in exercise of its absolute discretion, it will only allow additional evidence sparingly and with abundant caution on a case-by-case basis.
[23]
Applying these principles to the sole question we have posed for determination, it is apparent from this petition that all the applicant is seeking is the setting aside of the appellate court’s decision, a declaration that it violated the applicant’s rights guaranteed by articles 10(a), 24(1)(2)(3) and 40 of the Constitution and an order allowing his petition in the High Court, No 7 of 2017.
[24]
The central issue at the High Court was whether the respondent in issuing cessation order, acted within the law and in discharge of its powers, and whether that act amounted to compulsory acquisition. Upon losing in the High Court, the point taken in the appellate Court was, once again on the violation of the applicant’s rights and whether the cessation order was appropriation or functional acquisition.
[25]
Since the petition is yet to be argued, we shall be circumspect in our approach as we answer the question, whether the applicant has satisfied the conditions for leave to allow additional evidence.
[26]
The proceedings from the High Court all through to this court, the main question has remained; which body has the authority to approve construction on private land abutting or near an airport. That question was settled in R v Managing Director, Kenya Airports Authority ex-parte Patrick Thiothi Kanyuira, that it is the respondent. It cannot be re-introduced in the guise of some new evidence.
[27]
The original action was instituted in 2012, some ten years ago, while the petition before this court was brought four years ago. There is no explanation for this delay. If this so-called additional evidence was indeed crucial to the applicant’s case, why did he have to wait till the 11th hour to seek to introduce it? The bodies from which the documentary have been obtained have been in existence way before the commencement of the proceedings in the High Court, what prevented the applicant from obtaining this evidence from them in time to present the same to the trial court?
[28]
It is our considered view that the application is an attempt by the applicant to make a fresh case in this petition or fill up omissions or patch up his case. We believe too that if leave is granted for additional evidence, the respondent will suffer prejudice.
[29]
In a nutshell, the application has not met the conditions precedent enunciated in the Mohamed Abdi Mahamud case.
[30]
For all the reasons we have given, the notice of motion dated 5th July, 2021 lacks merit, and is for dismissal.
H. Conclusion
[31]
The overarching consideration in an application for the production of additional evidence is whether it is in the interest of justice to do so, bearing in mind the broader impact of allowing such evidence to be admitted. To achieve this, and to ensure adherence to the objectives of Rule 18 aforesaid, the court will assiduously scrutinize any piece of evidence presented as additional evidence.
I. Orders
(i) The notice of motion dated 5th July, 2021 is dismissed.
(ii) The applicant shall bear the costs of the motion.
It is so Ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/7/eng@2021-10-08
Application 6 of 2021,Kenya National Highway Authority v Cycad Properties Limited & 33 others (Application 6 of 2021) [2021] KESC 8 (KLR) (8 October 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",8 October 2021,2021.0,Nairobi,Civil,Kenya National Highway Authority v Cycad Properties Limited & 33 others,[2021] KESC 8 (KLR)               ,,"Brief facts
The applicant sought a review of a Supreme Court’s ruling delivered on March 17, 2021 in Application No. 26 of 2020. The applicant’s main ground for review was that the Supreme Court failed to give reasons for its impugned ruling, and thereof breached its rights to fair hearing and fair administrative action protected by the Constitution and the Fair Administrative Actions Act. The applicant then described how that had occasioned an injustice. In essence, it is the applicant’s argument that the summarized ruling was issued in error on its face, on the whimsical exercise of discretion, inadvertently or as a result of an oversight on the part of the court.
Issues
Under what circumstances would the Supreme Court review its own decisions?","D. Issues for Determination
[16]
On the basis of the pleadings and submissions by the parties herein, we consider that three issues merit this Court’s determination; these are:
i.
Whether an order to expunge the respondents’ pleadings should issue;
ii.
Whether the application meets the threshold for grant of review orders; and
iii.
If the answer to (ii) above is in the affirmative, what remedies are available.
PARA
E. Determination
(i)
Expungement of pleadings
[17]
It is the applicant’s contention that the 1st and 2nd to 30th respondents disregarded this court’s directions and filed their responses and submissions to the application for review out of time and without leave. They urge that the same ought to be expunged. In response, the 1st and 2nd to 30th respondents submit that the delay of one to two days was occasioned by technical challenges with the court’s E-filing portal and delay in obtaining instructions. They submit that the delay was not inordinate, has been satisfactorily explained and has occasioned no prejudice to the applicant. They urge the Court to exercise its discretion and allow the pleadings as properly on record.
[18]
We have considered the application, the affidavits in support thereof, and the submissions by all the parties and support the applicant’s contention that the respondents ought to respect and comply with this court’s directions. Indeed, compliance with directions by this court demand adherence by all litigants at all times to ensure orderly and expeditious conduct and disposal of disputes. However, if the applicant’s prayer to expunge is granted, the 1st and 2nd to 30th respondents will be entirely shut out of justice and will be denied a right to complete and effectual resolution of this matter. We also note that the applicant has not suffered any prejudice and the delay of one to two days has been satisfactorily explained while noting in particular they had a challenge with e-filling. Therefore, in the interests of justice to all parties, we are inclined to invoke our inherent jurisdiction in favour of retaining the pleadings in question on the court record. We therefore decline to grant an order expunging the 1st and 2nd to 30th respondents’ pleadings.
(ii)
Review
[19]
It is the applicant’s contention that, the motion is meritorious, exceptional, is in public interest and meets the criteria for review. It submits that this court failed to give reasons for its finding and as a result breached its right to fair hearing and fair administrative action protected under articles 47 and 50 of the Constitution and sections 4 (3) (d) and 6 of the Fair Administrative Actions Act. It also urges that the impugned decision was arrived at in error on the face of the ruling, on whimsical exercise of discretion, inadvertently or as a result of an oversight on the part of the court. It adds that in the interest of justice and good governance, a court of law must give reasons for its finding. It also argues that there is public interest in ensuring that a party whose constitutional rights have been violated by the court’s failure to give reasons, is not left to suffer an injustice. The 31st to 34th respondents essentially agree with these submissions.
[20]
The 1st and 2nd to 30th respondents on the other hand, contend that the application fails to disclose any ground for review. It is contented that, the applicant’s grounds for review fall outside the purview of section 21 (4) of the Supreme Court Act, and are an invitation to this Court, to without jurisdiction sit on appeal of its decision or to re-litigate the application for extension of time. It is their case that the court properly exercised its discretion, directed itself to the issues and facts in dispute as presented in the parties’ pleadings and properly applied the principles for extension of time. It is also urged that a summarized form of ruling, as was applied by this court in the impugned ruling, does not warrant review and that in any case, a summarized form of ruling has now been adopted pursuant to paragraphs 29 and 30 of this court’s Practice Directions, 2020.
[21]
The legal position as regards this court’s power to review its own decision was settled in the Fredrick Outa Case, [supra], wherein this court found that, as a general rule, the Supreme Court has neither jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner contemplated by section 21(4) of the Supreme Court Act. Therefore, in exercise of its inherent powers, this court may, upon application by a party, or on its own motion, review, any of its judgments, rulings or orders, in exceptional circumstances, so as to meet the ends of justice. The exceptional circumstances in which it can vary any of its judgments, rulings or orders, are limited to instances where;
i.
the judgment, ruling, or order, is obtained, by fraud or deceit;
ii.
the judgment, ruling, or order, is a nullity, such as, when the Court itself was not competent;
iii.
the court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
iv.
the judgment or ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision. [Emphasis added]
[22]
It is clear to us that the applicant’s main ground for review is that this court failed to give reasons for its impugned Ruling, and thereof breached its rights to fair hearing and fair administrative action protected the Constitution and the Fair Administrative Actions Act. The applicant then describes how this has occasioned an injustice. In essence, it is the applicant’s argument that the summarized Ruling was issued in error on its face, on whimsical exercise of discretion, inadvertently or as a result of an oversight on the part of the court.
[23]
We find that this assertion is misplaced and made in disregard of the provisions of Paragraph 30 of this court’s Practice Directions, 2020 which allows the adoption of summarized rulings by the court. We also reiterate this court’s decision in the Parliamentary Service Commission Case [supra] where we stated as follows:
‘[34] We note that the decision of the Two Judge Bench was in a summarized form. This might have erroneously informed the applicant’s assertion that some of its issues were considered. However, that cannot be the case. In their ruling, the learned judges categorically state that they had: ‘perused the application dated 24th May 2016; read the affidavit of Anthony Njoroge sworn on 24th May, 2016, and considered the written submissions of both the Applicant and the respondents.” In the ultimate the application was dismissed for the reasons that: “no compelling reasons have been presented to the Court as a justification for the inordinate delay.’ We find nothing irregular with this decision to warrant review.’
[24]
In any event, we agree with the 1st and 2nd to 30th respondents that this court considered the application before it, the parties’ affidavits and submissions and gave its reasoning at paragraph 13 as follows;
‘[13] ……., we find that on the basis of the principles set out by this Court for extension of time in Nicholas Salat Case, Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others, SC Appl 50 of 2014 and Hassan Nyanje Charo Case, the applicant has not satisfactorily explained the inordinate delay in filing the Record of Appeal. The reasons given by the applicant for this delay do not provide a sufficient basis for this court to exercise its discretion in the applicant’s favour. Consequently, the application before us is one for dismissal.’
[25]
Having so found, we conclude that the applicant in this matter has failed to meet the conditions for review set out in the Fredrick Outa case [supra]. The upshot is that the applications for review and expungement are for dismissal. We consequently make the following orders:
(i)
The notice of motion dated 29th March 2021 and filed on 31st March 2021 is hereby dismissed
(ii)
The notice of motion dated 10th April 2021 and filed on 12th April 2021 is hereby dismissed.
(iii)
The applicant shall bear the 1st, 2nd to 30th respondent’s costs
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/8/eng@2021-10-08
Petition 8 of 2020,Law Society of Kenya v Communications Authority of Kenya & 5 others; Privacy International (Amicus Curiae) (Petition 8 of 2020) [2021] KESC 6 (KLR) (Constitutional and Human Rights) (8 October 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",8 October 2021,2021.0,Nairobi,Civil,Law Society of Kenya v Communications Authority of Kenya & 5 others; Privacy International,[2021] KESC 6 (KLR)               ,,"1
UPON perusing the Notice of Motion Application by the Applicant, Privacy International, dated 8th October 2020 and filed on 15th October 2020 and the Supporting Affidavit sworn by Ian Hosein, the Executive Director of the Applicant on the 5th October 2020 seeking to be enjoined in these proceedings as amicus curiae and;
2
UPON considering the Applicant’s intended amicus brief dated 8th October 2020 and its written submissions dated 8th October 2020 and filed on 15th October 2020 in support of the Application, wherein the Applicant contends that it intends to assist the Court with regard to the compatibility of the Device Management System (DMS) with international human rights standards in relation to the following matters:
i.
Comparative human rights framework applicable to violations of privacy.
ii.
The intrusive nature of the data captured.
iii.
The unregulated and discriminate nature of privacy interference and;
iv.
Necessary safeguards.
v.
The impact on the right to freedom of expression of human rights defenders, lawyers and journalists and;
3
UPON considering the Applicant’s submission on its expertise in defending the right to privacy around the globe by conducting research and investigation into Government and corporate surveillance activities; is non partisan in the matter and only seeks to aid the Court in arriving at a just determination by providing relevant comparative framework on the issue; that because of the public interest and nature of the appeal, it would be prudent to admit the Applicant as amicus curiae as admission would outweigh any possible prejudice;
4
AND considering the 1st Respondent’s Replying Affidavit deponed on 19th October 2020 contesting the intended admission as amicus curiae and the written submissions dated 19th October, 2020 and filed on 22nd October, 2020 submitting that the Applicant has not satisfied the criteria set out by this Court in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Sup. Ct. Petition No. 12 of 2013, [2015] eKLR; that the Applicant has not demonstrated any expertise in the matters to be addressed; has not raised any novel point of law; has demonstrated impartiality and bias by taking a partisan stance hence not a neutral party and did not file its application timeously and;
5
FURTHER, noting the 6th Respondent’s Grounds of Opposition and written submissions, both dated 27th October 2020 and filed on 5th November 2020 in opposition to the Application wherein, the 6th Respondent contends that the Applicant does not meet the legal threshold for admission as amicus curiae as set out in the Mumo Matemu case (supra) and the principles set out in Francis Karioki Muruatetu & Another v Republic & 5 others, Sup. Ct. Petition No. 15 as consolidated with Petition No. 16 of 2015, [2016] eKLR; that the Applicant has not established any expertise or knowledge that would aid the Court in determining the Appeal; that the Applicant has not demonstrated neutrality and impartiality and;
6
FURTHERMORE, noting the written submissions by the 11th Respondent dated 19th October 2020 and filed on 23rd October 2020 in support of the Application and wherein they submit that the Applicant has met the criteria for admission as set out in Mumo Matemu as the amicus curiae brief is limited to legal arguments; has demonstrated neutrality and fidelity to the law; the Application has been filed timeously; that the Applicant has presented a novel perspective on the issue of privacy and that it is in the public interest that the Applicant be admitted to lend its global expertise on the issues arising as well as protect the general public from violation of their rights.
","7
In the above context, WE NOW OPINE as follows:
i.
An Applicant for joinder as amicus curiae has to satisfy this Court that it has met the legal requirements for joinder. The relevant law in that regard is Rule 19 of the Supreme Court Rules, 2020. The said Rule provides as follows:
19.
(1)
The Court may on its own motion, or at the request of any party, permit a person with particular expertise to appear in any matter as a friend of the Court.
(2)
The Court shall before admitting a person as a friend of the court, consider—
a.
proven expertise of the person;
b.
independence and impartiality of the person;
or
c.
the public interest.
ii.
The guiding principles applicable in determining an Application to be enjoined in that capacity were settled in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others (supra), where the Court pronounced itself on its inherent power to admit amicus curiae and emphasized that;
“
(i)
An amicus brief should be limited to legal arguments.
(ii)
The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
(iii)
An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tends to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay. The Court may, therefore, and on a case-by-case basis, reject amicus briefs that do not comply with this principle.
(iv)
An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law…
(vi)
Where, in adversarial proceedings, parties allege that a proposed amicus curiae is biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appears to be partisan on an issue before the Court, the Court will consider such an objection by allowing the respective parties to be heard on the issue...”
We also affirmed the above guiding principles in The Muruatetu Case.
iii.
The Applicant’s knowledge and expertise in the field of privacy in general is not doubted. However, its stance that it will take an impartial stand based on the arguments laid before the Court is debatable. Our perception is that a position seeking to set out the detriment of the DMS system seeks to advance a position favoring the Appellant and is inclined towards sustaining the High Court decision to the detriment of some of the Respondents. We are therefore not convinced that the Applicant has demonstrated impartiality and agree with the 1st and 6th Respondents that the Applicant does not satisfy the threshold for admission as amicus curiae in these proceedings.
8
HAVING therefore considered the Application and submissions by the respective parties, we find no merit in this application and we accordingly choose not to exercise discretion, and accordingly, dismiss it.
9
There shall be no order as to costs.
10
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/6/eng@2021-10-08
Petition 21 (E023) of 2020,"Member of Parliament, Balambala Constituency v Abdi & 7 others (Petition 21 (E023) of 2020) [2021] KESC 9 (KLR) (8 October 2021) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",8 October 2021,2021.0,Nairobi,Civil,"Member of Parliament, Balambala Constituency v Abdi & 7 others",[2021] KESC 9 (KLR)               ,,"Brief facts
The 1st respondent filed a petition at the High Court to challenge the creation of various administrative units in Garissa County on grounds that there had been no public participation. The trial court allowed the 1st respondent's petition and declared that the 2nd respondent (County Commissioner, Garissa) had violated constitutional provisions by purporting to create new administrative units and disregarding a court decision rendered in that regard. The trial court issued an order of certiorari against the 2nd respondent and an order of mandamus against the 2nd and 3rd respondents. The Court of Appeal upheld the trial court's decision prompting the petitioner to lodge a petition of appeal at the Supreme Court against the decision of the Court of Appeal. 
The 1st and 8threspondents raised preliminary objections on grounds that the petition of appeal did not raise any matters of constitutional interpretation or application under article 163(4)(a) of the Constitution and that the petition of appeal had not been certified as one involving a matter of general public importance under article 163(4)(b) of the Constitution. ","E. Analysis and Determination
[14]
The two preliminary objections before us raise one issue of determination by this court, that is, whether the appeal before us raises a question involving the interpretation or application of the Constitution.
[15]
The basis of the preliminary objections is that the appeal does not raise any constitutional issues hence the same fails to qualify as an appeal filed as of right to invoke this court’s jurisdiction.
[16]
The petitioner and the 5th respondent on the contrary, argue that the appeal is premised upon article 163(4)(a) of the Constitution as it raises issues involving the application and interpretation of the Constitution. The 5th respondent further went on to argue that the appeal revolved around the jurisdiction of the High Court while exercising its power of review under article 89 of the Constitution.
[17]
This court has previously set the guiding principles for bringing an appeal before it under article 163(4)(a) of the Constitution in Gatirau Peter Munya v Dickson Mwenda Kithinji & others where we stated inter alia as follows:
i.
a court’s jurisdiction is regulated by the Constitution, by statute law, and by the principles laid out in judicial precedent;
ii.
the chain of courts in the constitutional set-up have the professional competence to adjudicate upon disputes coming up before them, and only cardinal issues of law or jurisprudential moment, deserve the further input of the Supreme Court;
iii.
the lower court’s determination of the issue on appeal must have taken a trajectory of constitutional application or interpretation, for the cause to merit hearing before the Supreme Court;
iv.
an appeal within the ambit of article 163(4)(a) is to be one founded on cogent issues of constitutional controversy.
[18]
Further, in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, Supreme Court Petition No 3 of 2012; [2012] eKLR (Lawrence Nduttu case), this court held that the mere allegation that a question of constitutional interpretation or application is involved, without more, does not automatically bring an appeal within the ambit of article 163(4)(a) of the Constitution. We specifically stated as follows:
“
(27)
This article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation and/or application of the Constitution can be entertained by the Supreme Court.”
[19]
Furthermore, in Peninah Nadako Kiliswa v Independent Electoral & Boundaries Commission (IEBC) & 2 others, this court found that even in matters originating as judicial review, the issues have to fall under the canopy of article 163 (4)(a). The court then proceeded to set guiding principles which a party must comply with in appealing to the Supreme Court in a matter originated before the High Court by way of Judicial Review. We stated thus:
“
(33)
It follows that for an appeal to lie to this court, in a matter originated under judicial review, the issues have to fall under the canopy of article 163(4)(a). As judicial review is concerned with process, but for a case where the process is contested as being unlawful, irrational or procedurally unfair – elements falling within the purview of the rule of law (a constitutional principle)
– the matter cannot lie to the Supreme Court. Hence in appealing to the Supreme Court in a matter originated before the High Court by way of Judicial Review, the party concerned should comply with certain principles, as follows:
i.
not all Judicial Review matters are appealable to the Supreme Court, as of right;
ii.
it is open to the party concerned to move the court on appeal under article 163(4)(b) of the Constitution, in which case, the normal certification process applies;
iii.
where such an appeal comes under article 163(4)(a), the petitioner is to identify the particular(s) of constitutional character that was canvassed at both the High Court and the Court of Appeal;
iv.
the party concerned should demonstrate that the superior courts had misdirected themselves in relation to prescribed constitutional principles, and either granted, or failed to grant Judicial Review remedies, the resulting decisions standing out as illegal, irrational, and/or unprocedural, hence unconstitutional.”
[20]
It is clear from the court record that this petition of appeal arose from High Court Constitutional Petition No 238 of 2015 where the 1st respondent had sought a declaration that the actions of 2nd respondent were in breach of articles 10, 47 and 159 of the Constitution. The High Court (Mativo, J) in deciding whether the 2nd respondent had acted within the confines of the law, then considered the provisions of section 4 of the National Government Coordination Act No 1 of 2013 which states that; ‘In fulfilling its mandate, the national government shall act in accordance with the national values and principles of the Constitution in particular, those set out in articles 10, 189, 201(d) and 232.’
The trial judge then went on to analyze whether articles 10, 189, 201(d) and 232 of the Constitution (as the constitutional provisions) and section 4 of the National Government Coordination Act (as the statutory provision) were complied with and found in the negative. In so finding, he noted thus;
“
Regarding the issue whether or not the first respondent acted within the confines of the law while creating the
administrative units, section 4 of the National Government Co-ordination Act[14] offers the guiding principles. It provides in clear terms that:-""In fulfilling its mandate, the national government shall act in accordance with the national values and principles of the Constitution in particular, those set out in articles 10, 189, 201(d) and 232.
Article 10 (1) of the Constitution provides that ""The national values and principles of governance bind all State organs, State officers, public officers and all persons whenever any of them—
(a)
applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions.
Sub-article (2) (a) and (c) provides that ""The national values and principles of governance include— (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (c) good governance, integrity, transparency and accountability.
Article 189 (1) provides inter alia that the Government at either level shall— (a) perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level.
From the averments and arguments rendered by the parties, I am not satisfied that the constitutional and statutory provisions outlined above were complied with. In particular, there appears not to have been proper public participation.
[21]
The Court of Appeal on its part, while determining the appeal, went on to analyze the application of section 4 of the National Government Coordination Act by the trial court and went on to find that the 2nd respondent had contravened the provisions of section 4 of the Act as well as articles 10, 189, 201(d) & 232 of the Constitution. It rendered itself as follows:
“
Articles 1 and 2 of the Constitution states that all sovereign power belongs to the people of Kenya exercisable only in accordance with the Constitution through delegated authority donated to state organs such as the executive, the legislature and the judiciary. Being the Supreme Law, the Constitution binds all persons and all state organs at both levels of government. It follows therefore that if any state organ does or purports to do an act in a manner which does not fall within the constitutional prescription, then that action would be unlawful and or unconstitutional.
Whereas article 10 of the Constitution provides for national values and principles of governance such as devolution of power, the rule of law, participation of the people, good governance, integrity, transparency and accountability, article 47 provides for fair administrative action, in that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair…The learned Judge while relying on the guiding principles in section 4 of the National Government Coordination Act and articles 10(1) & (2)(a)(c) and 189(1) of the Constitution was not satisfied that there was proper public participation and held that “there wasn’t any serious engagement with the public as the public had previously expressed their concerns in JR No 120 of 2012 and the court made a determination which was never reviewed, set aside or appealed against.” Consequently, the court found that the constitutional and statutory provisions were not complied with in the creation of the administrative units.”
[22]
From the above, it is evidently clear that though section 4 of the National Government Coordination Act was the basis upon which the trial court adjudicated on whether the administrative actions of the 2nd respondent were done within the confines of the law, the provisions of section 4 were founded on the provisions of articles 10, 189, 201(d) & 232 of the Constitution, and it is these constitutional provisions that the 2nd respondent was found to be in breach of.
[23]
We therefore find little difficulty in concluding that the issues before the High Court as well as the Court of Appeal involved the interpretation and application of the Constitution. The argument by the 1st and 8th respondents that there was no constitutional issue determined by the courts below is therefore untenable. Having so found, we have no option than to overrule the preliminary objections.
F. Orders
(i)
The preliminary objection by the 1st respondent filed on 25th January 2021 is hereby overruled.
(ii)
The preliminary objection filed on the 3rd March 2021 by the 8th respondent is hereby overruled.
(iii)
Each party shall bear its costs of the objection.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/9/eng@2021-10-08
Application 5 of 2019,Mohamed & another v Mohamed & 3 others (Application 5 of 2019) [2021] KESC 1 (KLR) (Civ) (8 October 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",8 October 2021,2021.0,Nairobi,Civil,Mohamed & another v Mohamed & 3 others,[2021] KESC 1 (KLR)               ,,"A. INTRODUCTION
1.
On 1st July, 2021 Ahmed Abdullahi Mohamed (1st applicant) filed a Notice dated 28th June, 2021 seeking leave to withdraw an application dated 18th February, 2021, which he had lodged together with Ahmed Muhumud Abdi (2nd applicant). In the said application, both applicants had sought an order to review this Court’s judgment (majority) delivered on 15th February, 2019 in SC Petition No. 7 of 2018.
In the said Notice to Withdraw the application, the 1st applicant urged us not to award costs.
B. BACKGROUND
2.
Following the general election held on 8th August, 2017 the 1st respondent was declared the duly elected Governor of Wajir County. Dissatisfied with the outcome, the applicants lodged before the High Court, Election Petition No. 14 of 2017 contesting the said results. By a Judgment dated 12th January,2018 the High Court (Mabeya, J.) nullified the 1st respondent’s election on grounds inter alia; that he lacked the requisite academic qualifications to vie for the gubernatorial seat; and that the irregularities and illegalities by the 3rd & 4th respondents not only affected the credibility of the election but also the results thereof.
3.
Aggrieved by that decision, the 1st respondent filed an appeal in the Court of Appeal, Election Petition Appeal No. 2 of 2018, which was dismissed on 20th April, 2018. Unrelenting, the 1st respondent filed a second appeal in this Court, SC Petition No. 7 of 2018, which was allowed vide a majority Judgment (Ibrahim, Ojwang, Wanjala & Njoki, SCJJ) delivered on 15th February, 2019. In particular, the Court of Appeal Judgment was set aside and the declaration in favour of the 1st respondent as the duly elected Governor of Wajir County upheld.
4.
Subsequently, the applicants filed an application for review (which now they seek to withdraw). However, before the application could be prosecuted the 2nd applicant filed yet another application dated 16th April, 2019 seeking leave to withdraw and to strike out his name from the application for review. He deposed that he was no longer interested in pursuing the application.
5.
Initially, the 1st applicant opposed the 2nd applicant’s application for withdrawal vide grounds of objection filed before this Court on 25th April, 2019. It seems that the 1st applicant had a change of heart as evinced by the notice of withdrawal.","C. ANALYSIS
6.
The notice of withdrawal was placed before a single Judge of this Court on 5th July, 2021 who, upon noting that the notice was not by consent of the parties, directed that the matter be mentioned before the Deputy Registrar. This was to enable the other parties to indicate their respective positions with regard to the said withdrawal and whether they would be pursuing the issue of costs.
7.
Towards that end, the matter was mentioned before the Deputy Registrar on several occasions, that is, 9th July, 2012, 5th August, 2021 and 10th September, 2021.
On all occasions the parties’ advocates were served with mention notices.
Moreover, the parties were directed to file written submissions with respect to the intended withdrawal and costs, which to date none of the parties have complied.
8.
Although the notice of withdrawal is indicated to have been filed pursuant to Rule 19 of the Supreme Court Rules, the applicable provision is Rule 27 of the Supreme Court Rules, 2020. Nonetheless, taking into account the conduct of the parties beginning with both applicants’ intimation of their unwillingness to proceed with application, coupled with the absence of any response by the other parties, we come to the irresistible conclusion that none of the parties has an interest in the review application. In the circumstances, we allow the withdrawal sought.
9.
As for the issue of costs, we are clothed with inherent jurisdiction by dint of Section 21(2) of the Supreme Court Act and Rule 3(5) of the Supreme Court Rules, 2020 to issue such orders as to cost as we deem fit. In addition, it is trite that the issue of costs is at the discretion of the Court which discretion must be exercised judiciously.
10.
Ideally, costs ought to follow the event. However, there are circumstances under which this rule is exempted. This Court in Jasbir Singh Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR in discussing such circumstances expressed-
“(18) It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.”[Emphasis added]
11.
Applying the above principles to the matter at hand, we are convinced that we should not make any orders as to costs. More so, in light of the parties conduct with respect to the notice of withdrawal.
D. ORDERS
12.
In the event, and in exercise of our discretion we order as follows: -
i.
The application dated 18th February, 2019 and filed on 20th February, 2019 is hereby withdrawn with no orders as to costs.
It is accordingly so ordered.",Withdrawn,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/1/eng@2021-10-08
Petition 19 (E022) of 2020,Wamae & 97 others v Barclays Bank of Kenya Limited (Petition 19 (E022) of 2020) [2021] KESC 5 (KLR) (8 October 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",8 October 2021,2021.0,Nairobi,Civil,Wamae & 97 others v Barclays Bank of Kenya Limited,[2021] KESC 5 (KLR)               ,,"Brief factsThe 1st appellant and 104 other former employees of the respondent filed a claim seeking the re-evaluation and award of their exit packages following a declaration of redundancy. In their claim, the appellants' main contention was that, upon subsequent and proper calculation of their expected exit packages, it was found that the respondent had not computed and paid to them their correct dues. In interpreting the provisions of section 40(g) of the Employment Act, 2007, the Employment and Labour Relations Court entered judgment in favour of the claimants in the action. That court also found discrimination in terms of section 5(3) of the Employment Act 2007, in the manner in which the employees were treated. In overturning that decision, the Court of Appeal’s judgment turned on the question whether the Employment and Labour Relations Court properly read and construed the provisions of section 40(1)(g) of the Employment Act.Aggrieved, the appellants filed the instant petition of appeal. The respondents subsequently filed a notice of preliminary objection urging the Supreme Court to dismiss the appeal on among other grounds that: the decision of the Court of Appeal did not involve an issue of interpretation or application of the Constitution of Kenya, 2010 (Constitution) and as a result, an appeal to the Supreme Court as of right did not lie; and in so far as the petition of appeal was based on grounds that the intended appeal raised an issue of general public importance, it was improperly before the Supreme Court, no leave to appeal had been sought or granted by the Court of Appeal and no certification that a matter of general importance was involved had been made in accordance with the law.","E. Analysis and Determination
17
The objection has been taken on the jurisdiction of the court to entertain the appeal, on the ground that it does not meet any or the two limbs of article 163(4)(a) and (b) of the Constitution.
18
The principles established by the time-honoured, Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696, cited with approval by this court in Hassan Ali Joho case (supra) are settled that;
“
a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration….a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
19
We have no doubt at all that the point raised in the objection satisfies the above strictures. But of significance, it raises a jurisdictional question which, if argued successfully, is capable of disposing the appeal. Indeed, the other ingredients are also present.
20
The petition of appeal lodged in the registry on 2nd December, 2020, is expressed to be brought under article 163(4)(a) of the Constitution and identifies two points as the basis; that it raises questions of constitutional interpretation and application and secondly, that there are conflicting decisions of the Court of Appeal on a point of law which would require this court to settle. The case cited to contradict the decision of the Court of Appeal in the matter giving rise to this appeal is Telkom Kenya Limited v John Ochanda [2013] eKLR, where it was held that payment of severance pay must cover each year of an employee’s service. It is incompatible to rely on article 163(4)(a) as the basis of the appeal and in the same breath claim that the appeal raises a matter of general public importance on account of conflicting decisions, because for the latter there has to be a certificate granting leave to appeal under article 163(4(b), while in the former, an appeal is as of right. It is conceded that no certificate was sought or obtained, and that indeed the appeal is premised on article 163(4(a).
21
Having reached that conclusion, we must now consider the principles that guide the court on the delineation of its jurisdiction under that provision, which are now settled by a long line of authorities, such as Hassan Ali Joho, Peter Oduor Ngoge v Hon Francis Ole Kaparo, [2012] eKLR, Gatirau Peter Munya v Dickson Mwenda & 2 Others, [2014] eKLR and Lawrence Nduttu (supra). Those principles were summarized in the latter case as follows;
“
The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a).”
22
Applying this test to the matter under our review, we entertain no doubt that the appeal does not meet the conditions articulated in these authorities. From ELRC to the appellate court, not a single question on the Constitution was pleaded, canvassed and determined. Indeed, no specific constitutional provisions were presented for interpretation or application.
23.
The case brought before the ELRC, as summarized by the learned judge was simply whether the appellants were entitled to severance pay calculated at every completed year of service following the respondent’s declaration of their redundancy. The only provision of the law whose interpretation was called forth was section 40(1)(g) of the Employment Act . Judgment in their favour was entered pursuant to the interpretation of that provision.
24.
The appellate court, likewise, in setting aside the judgment of the ELRC, based its decision purely under section 40(1)(g) of the Employment Act . We have gone through the entire judgment of the appellate court and confirm that, not once, has the word constitution been mentioned.
25.
Before this court, in the petition of appeal, the appellants have now introduced several provisions of the Constitution, which they argue, fell for interpretation by the two superior courts below. We must remind them that, the mere invocation of articles of the Constitution in the pleading, does not in itself avail those provisions for consideration by this court. We arrive at the inevitable conclusion that there was no issue of constitutional controversy before both courts below for either interpretation or application. The appeal does not meet the jurisdictional threshold under article 163(4)(a) of the Constitution.
F. Final Orders
26.
Consequently, we make the following orders:
i.
The preliminary objection dated 2nd December, 2020 is hereby sustained.
ii.
The Petition of Appeal No 19 (E022) of 2020 is hereby dismissed.
iii.
The petitioner shall bear the costs of the respondent.
It is so Ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/5/eng@2021-10-08
Civil Application 10(EO17) of 2021,Westmont Holdings SDN BHD v Central Bank of Kenya (Civil Application 10(EO17) of 2021) [2021] KESC 3 (KLR) (8 October 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          PM Mwilu,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",8 October 2021,2021.0,Nairobi,Civil,Westmont Holdings SDN BHD v Central Bank of Kenya,[2021] KESC 3 (KLR)               ,,"Brief facts
The applicants sought a review of a Court of Appeal decision in which an application for the grant of a certificate for leave to appeal to the Supreme Court under article 163(4)(b) of the Constitution was declined. 
The applicant sought certification that its intended appeal raised three matters of general public importance and they were: - 
Whether the striking out of an appeal on grounds that security for costs was not deposited as directed was an impediment to access to justice and a violation of articles 50 and 159 of the Constitution.
Whether prohibitive costs contravened article 48 of the Constitution on access to justice and particularly, whether it was fair or reasonable to require a party that had been defrauded Kshs. 185,500,000 to deposit a further Kshs. 20,000,000 before being heard in a court of law.
Whether the fact that a respondent was holding money belonging to an appellant, which was in excess of security for costs awarded, was a relevant factor for the court to consider and whether failure to consider that factor was a contravention of articles 50 and 159 of the Constitution.
At the High Court, the applicant together with Mr. Kamlesh Mansukhlal Pattni sought a refund of Kshs. 185,500,000/= being a deposit paid towards the purchase of the Grand Regency Hotel within Nairobi by Lynwood Development Limited (Lynwood). The suit, which was initially dismissed for want of prosecution, was reinstated by the Court of Appeal in a judgment delivered in 2014. Among the preliminary objections raised by the Central Bank of Kenya (CBK) was the contention that the applicant had been wound up on May 21, 2002 and it was incapable of donating any powers or appointing any agent and therefore Lynwood could not be a party to the suit. CBK also argued that the applicant's suit had abated and that any substitution of the applicant as a party ought to have been done within one year as provided for in the Civil Procedure Rules.
As regards the preliminary objection, the High Court made the finding that there had been material non-disclosure as to who the parties were and it had amounted to the applicant stealing a match against CBK and other parties when seeking reinstatement of the suit. The High Court also found that the agency relationship between the applicant and Lynwood was undisclosed with Lynwood being an undisclosed principal. The High Court noted that at the time of the agreement for the sale of Grand Regency, the applicant did not have a power of attorney to enable it to execute the deed for the sale of the hotel. Since Lynwood was held not to be a proper party to the suit, the suit was dismissed as there was no proper plaintiff. Nonetheless, the High Court assessed the claim on merit and dismissed both the plaint and the counterclaim with costs. 
The applicant lodged an appeal at the Court of Appeal. CBK then filed a notice of motion seeking security for costs amounting to Kshs. 87,620,000. The Court of Appeal made a ruling in which it ordered the deposit of Kshs. 20,000,000 as security for costs within 45 days of the ruling. The applicant sought to appeal to the Supreme Court against the ruling and sought certification that would grant it leave to file the appeal from the Court of Appeal. The Court of Appeal found that the intended appeal would not raise any issue that had a bearing on public interest or that would warrant the certification sought.","D. Issues for Determination
[30]
Having considered the record of the application before us and the rival submissions of the parties, the single issue for consideration before this court is whether the applicant has made a case to the satisfaction of this court to warrant us to review the denial of certification by the Court of Appeal, set it aside and grant the applicant leave to file its appeal to this Court.
E. Analysis
[31]
During the pendency of the originating motion dated 6th August 2021, CBK through its advocates filed a notice of motion application dated 31st August 2021, seeking two orders namely: that this Court holds an oral hearing of the originating motion dated 6th August 2021; and that the Record of the Court of Appeal in Civil Appeal No 37 of 2017 be made available to us, for consideration during the hearing. The application is premised on the grounds that: the Record will aid the court in finding that no matters of great public importance arise therefrom; the Court of Appeal’s decision and the ruling on certification sought to be appealed from were made on an examination of the entire record; and that the applicant’s narrative is misleading, incomplete, and skewed. Also, in support of CBK’s application is a supporting affidavit sworn by Kennedy Kaunda Abuga, CBK’s General Counsel, on 31st August 2021.
[32]
The procedure for disposing an application for certification is set out under rule 33(5)(b) of the Supreme Court Rules, 2020 which provides inter alia that:
“
an application for certification shall be determined on the basis of written submissions.” Having considered CBK’s application, the grounds in support thereto, and the supporting affidavit, we find no sufficient reason to warrant a departure from the procedure provided for in the rules. Accordingly, the notice of motion application dated 31st August 2021 fails.
[33]
Having considered the application before us, the supporting affidavit, the replying affidavit and the respective parties submissions, we note that the issue of security of costs was subject of determination by the appellate court (not at the High Court) leading to the ruling delivered on 8th December 2017, where the that court found inter alia: “we are satisfied this is a suitable case to order the appellant, be it Westmont or Jasmin See, to deposit security to guarantee the costs of the appeal in the sum of Kenya Shillings Twenty Million (Kshs 20,000,000/=). In arriving at the said sum, we have considered the amount in dispute, the fact that there are other costs that were ordered to be paid by the appellant in the High Court and more importantly, the enormous amount of resources in terms of professional services and attendant costs likely to be incurred in defending an appeal such as this one. Accordingly, we order the said sum be deposited in Court as security for costs in this appeal within 45 days of this ruling, failing which the appeal will stand struck out with costs to CBK.”
[34]
In declining to certify Westmont’s appeal under article 163(4)(b) of the Constitution, the learned Judges of Appeal in a ruling delivered on 23rd July 2021, held that the issue of award of costs or an order directing the payment of security for costs not to be a substantial one. Further that there is no uncertainty in law on that issue as the Court of Appeal Rules are clear on the issue of costs or payment of additional costs or security for costs. It concluded that no issue had been raised for determination which would have any bearing on the public interest, and to warrant certification for determination by the Supreme Court.
[35]
However, in this matter the questions posed by the applicant for determination as matters of general public importance are as follows:
a.
Whether striking out an appeal; or indeed any matter, without its being heard if security for costs is not deposited; is a direction that is an impediment to a party’s access to justice and stands in contravention of articles 50 and 159 of the Constitution for imposing a condition precedent or a stringent qualification to a litigant’s fundamental right to justice.
b.
Whether a prohibitive cost tag to access to justice is in contravention of article 48 of the Constitution which provides that fees to access justice should be reasonable and shall not impede access to justice and whether it is fair or reasonable that a party who has already been defrauded of Ksh 185,500,000/= be required to deposit a further Ksh 20 million in order to be heard by a court.
c.
Whether admissions by a respondent that it is holding an appellant’s monies in excess of the security for costs awarded is a relevant factor to consider and whether failure to consider such relevant factors is a travesty of justice contravening articles 50 and 159 of the Constitution.
[36]
Having considered the issues, the constitutional provisions on the issue of costs and the right to access justice, decisions of the superior courts below, the different laws and regulations on the subject matter it is obvious to us the issue of security of costs is likely to affect any litigant approaching a court of law hence and therefore has a significant bearing on the general public and transcends the facts of this case. We therefore find that it is in the public interest that this court settles this matter by hearing the intended appeal.
[37]
Before granting leave, we wish to state that not all the questions framed by the applicant for determination merits appeal to this court. After looking at all the submissions, we hereby determine and certify the following issue as one of general public importance and which we shall consider in the intended appeal:
“
Whether an order for security costs is unreasonable as it impedes a litigant’s access to justice by imposing a condition precedent before the latter can be heard, contrary to articles 48, 50 and 159 of the Constitution?”
[38]
Consequently, all parties shall submit on this question at the hearing of the appeal and how its determination may affect the impugned decision of the Court of Appeal.
F. Orders
[39]
As a result of the foregoing, we find that this application is for allowing which we do in the following terms:
(i)
The originating motion application dated 6th August 2021 is hereby allowed.
(ii)
The decision of the Court of Appeal delivered on 23rd July 2021 is hereby set aside.
(iii)
It is hereby certified that the intended appeal involves a matter of general public importance.
(iv)
Upon the appeal being duly filed, this matter shall be heard on a priority basis.
(v)
Costs of this application shall be in the cause.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/3/eng@2021-10-08
Miscellaneous Application 22 of 2020,Director of Public Prosecutions v Okemo & 4 others (Miscellaneous Application 22 of 2020) [2021] KESC 40 (KLR) (6 August 2021) (Directions),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          W Ouko",6 August 2021,2021.0,Nairobi,Civil,Director of Public Prosecutions v Okemo & 4 others,[2021] KESC 40 (KLR)               ,,"1.
Intending to challenge the decision of the Court of Appeal made on 2nd March, 2018, the Director of Public Prosecutions, (the applicant) has, with the Court’s leave, lodged Petition of Appeal No. 14 of 2020. It was declared by that decision that extradition proceedings instituted before the magistrate’s court against Chrysanthus Barnabus Okemo and Samuel Kimunchu Gichuru (the 1st and 2nd respondents) by the applicant were without the authority of the 3rd Respondent (the Attorney General) and therefore a nullity; and that, in law, it is only the latter who is vested with the power to commence and conduct such proceedings.
2.
Aggrieved by that determination and apprehensive that the decision may be executed by the Attorney General before the appeal is heard, the applicant has taken out this Notice of Motion, praying that, pending the hearing and determination of the appeal, this Court be pleased to issue an order to stay the execution of the aforesaid decision of the Court Appeal.","3.
The application was listed for consideration on the basis of written submissions pursuant to Rule 31 of the Court’s Rules. However, having regard to the nature of the dispute in the pending appeal; bearing in mind that the main appeal has now been listed for hearing on 5th October, 2021, and in order to save on judicial resources, we direct that;
i.
The Notice of Motion dated 12th August, 2020 be and is hereby taken out of the hearing list;
ii.
The Notice of Motion be listed for further directions during the hearing of Petition No. 14 of 2020 on 5th October, 2021;
iii.
We make no orders as to costs.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/40/eng@2021-08-06
Petition 1 of 2018,Institute of Social Accountability & another v National Assembly of Kenya & 3 others (Petition 1 of 2018) [2021] KESC 30 (KLR) (6 August 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",6 August 2021,2021.0,Nairobi,Civil,Institute of Social Accountability & another v National Assembly of Kenya & 3 others,[2021] KESC 30 (KLR)               ,,"Brief facts
The petitioners moved to the Supreme Court vide a Petition of Appeal that sought to overturn the judgment and orders of the Court of Appeal save for the declaration that sections 24(3)(c) and (f) and 37(1)(a) of the Constituencies Development Fund Act, 2013 violated the principle of separation of powers. In essence, they sought to invalidate the Constituency Development Fund Act 2013 as amended by the Constituencies Development Fund (Amendment) Act 2015 for various reasons stated in the petition. On its part, the 1st respondent filed a notice of cross-appeal that sought to uphold the Court of Appeal’s decision.
The petitioners filed an application that sought leave to attach additional evidence, being copies of the Hansard which were not available to them at the time of filing the petition of appeal. The petitioners claimed that the additional evidence removed any vagueness or doubt over the case and had a direct bearing on the main issue in the suit and the respondents could easily respond to, and the court could as well take judicial notice of the evidence. Further, the additional evidence fit the issues framed in the petition relating to the Constituency Development Fund Act offending the division of functions, principles of public finance, and division of revenue.
The respondents objected to the application on grounds that the additional evidence was not directly relevant to the matter and that the petitioners should not be allowed to patch up points that they had not raised at the trial court at the appellate court.","C. Issue for Determination
14.
The main issue for determination is whether leave should be granted to the petitioners to adduce additional evidence by way of the National Assembly Hansard of 9th, 11th, 18th, 23rd March, 2021 covering debate on supplementary appropriations to the National Government Constituency Development Fund and the Division of Revenue Bill 2021.
D. Analysis
15.
We have considered the grounds in support of the application and the objections thereto by the 1st and 4th respondents. Rule 26 of our Rules provides for admission of additional evidence. It states:
“
The court may call or admit additional evidence in any proceedings”
16.
All the parties rightly appreciate the principles on admission of additional evidence as set out by this court in Mohamed Abdi case. These are that:
(a)
the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
(b)
it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
(c)
it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
(d)
where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
(e)
the evidence must be credible in the sense that it is capable of belief;
(f)
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
(g)
whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
(h)
where the additional evidence discloses a strong prima facie case of willful deception of the court;
(i)
The court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The court must find the further evidence needful;
(j)
a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case;
(k)
the court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.
17.
We note that the respondents raised other grounds that warrant our consideration at the onset. These are:
a)
Whether the proposed additional evidence is admissible
b)
The place of the proposed additional evidence in relation to the pending litigation before the High Court in Milimani Constitutional Petition No.178 of 2016 Wanjiru Gikonyo & others v the National Assembly and others and High Court Petition No E129 of 2021 – Katiba Institute & 2 others v CS, National Treasury & 4 others; Commission on Revenue Allocation (Interested Party).
18.
On the first question, the petitioners contend that the additional evidence is admissible as a public record that the court should in any event take judicial notice of. The 1st respondent is adamant that the additional evidence is inadmissible as it is privileged and that the adduced copy is neither the original nor a certified copy and that the deponent of the affidavit in support of the application has in any event not disclosed the source of this document.
19.
Under section 60(1)(b) of the Evidence Act, the courts shall take judicial notice of the general course of proceedings and privileges of parliament, but not the transactions in their journals. It is not uncommon for courts to make reference to the Hansard in making their determinations as they have done in the past. As elected representatives of the citizens, there is public interest in allowing citizens to access proceedings of parliament which includes broadcast to the public particularly under the 2010 constitutional dispensation. Such proceedings are reduced into a Hansard that is readily accessible to the public which may explain why the petitioners had ready access to it, notwithstanding that it is not an original or a certified copy.
20.
As to whether the contents of the Hansard are privileged, we have previously expressed ourselves on the issue. In Republic v Speaker of the National Assembly & 4 others ex-parte Edward RO Ouko [2017] eKLR, we, inter alia, stated that:
“
Parliament in Kenya cannot enjoy privilege, immunities and powers which are inconsistent with the fundamental rights guaranteed in [Constitution]. Thus, whereas parliamentary privilege is recognized, it does not extend to violation of the Constitution hence Parliament cannot flout the Constitution and the law and then plead immunity; where a claim to parliamentary privilege violates constitutional provisions, the court’s jurisdiction would not be defeated by the claim to privilege; that the concept of statutory finality does not detract from or abrogate the court’s jurisdiction in so far as the complaints made are based on violation of constitutional mandates or non-compliance with rules of natural justice; that whereas the people of Kenya gave the responsibility of making laws to Parliament, and such legislative power must be fully respected, the courts can however interfere with the work of Parliament in situations where Parliament acts in a manner that defies logic and violates the Constitution.”
In essence, the parliamentary privileges and immunities are not absolute in the event of a valid grievance by a litigant based on the violation of the Constitution. The petitioners have brought action against the National Assembly alleging infringement of the Constitution. At this juncture, before the appeal is heard, we cannot say that Parliament has violated the Constitution in debating or expressing itself on any legislative action. That issue must await the hearing and determination of the appeal and parties allowed to respond to the new evidence, if at all it is eventually admitted.
21.
On the second issue, it is evident that the proposed additional evidence is subject to litigation before the High Court in which the petitioners are involved. The petitioners have not addressed this issue. Bearing in mind the hierarchical structure of the courts in Kenya, we do not see any justification for destabilizing the same to enable us render ourselves, as the apex court, on an issue that may otherwise end up before us using the normal litigation and appellate channels. We thus are inclined to agree with the respondents that the evidence sought to be introduced would be best interrogated in those pending litigations before the High Court and subsequently through appeal should it come to that.
22.
Turning back to the principles on admission of additional evidence, the petitioners argue that they meet the set threshold while the respondents argue otherwise. It is common ground that the Hansard in issue relates to parliamentary debates held on 9th, 11th, 18th and March 23, 2021 covering supplementary appropriations to the National Government Constituency Development Fund and the Division of Revenue Bill 2021. This inevitably leads to our interrogation of the relevance of the said evidence and its direct bearing on the outcome of the case.
23.
At paragraph 7 of the supporting affidavit, the deponent, Munguti Kioko states as follows:
“
Logically, these records of the Hansard debates are a recent occurrence and were not available earlier; yet counsel informs me that they are relevant to the pending appeal.”
In our mind, it is evident that the relevance of the debates to the appeal was not readily apparent to the deponent. As pointed out by the respondents, the present proceedings do not relate to the constitutionality of the National Government Constituency Development Fund and the Division of Revenue Bill 2021. A perusal of the issues for determination and reliefs sought in the petition of appeal and the notice of cross appeal before us reveals that remedies sought relate to the constitutionality of the Constituency Development Fund Act, 2013.
24.
We further note that while the High Court had declared the said Constituency Development Fund Act as unconstitutional, the order of invalidity was suspended for a period of 12 months and the national government was allowed to remedy the defect within the suspension of invalidity period or by repeal whichever came first. This, in our view did not prevent Parliament from subsequent enactment of law that would repeal the impugned Constituency Development Fund Act 2013. In our view, the National Government Constituency Development Fund Act was enacted in that context.
25.
The Constitution gives recourse for any party to challenge the constitutionality of any laws to the extent of the contravention. We are made to understand that the petitioners are engaged in challenging the said National Government Constituency Development Fund Act before the High Court as alluded to earlier in this ruling.
26.
To this extent therefore, we are unconvinced that the additional evidence should be admitted. Introducing evidence seven years after the time the Constituency Development Fund Act was enacted in 2013 and to seek that such evidence be considered in determining the constitutionality of the 2013 Statute is, in our view, quite inappropriate as it not only introduces fresh facts but also introduces them at the penultimate stage of the proceedings before the apex court. This is compounded by the fact that the main appeal is ready for hearing. We are of the view that the interests of justice are better served in having the appeal disposed with expeditiously.
D. Disposition
27.
Consequently, we make the following orders:
i)
The notice of motion application dated April 16, 2021 is dismissed.
ii)
Costs shall abide the outcome of the main appeal.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/30/eng@2021-08-06
Petition 17 of 2015,John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",6 August 2021,2021.0,Nairobi,Civil,John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others,[2021] KESC 39 (KLR)               ,,"Brief facts
A bilateral agreement on maritime freight management entered into on May 30, 2000, between the Democratic Republic of Congo (DRC) Government and the Kenyan Government, provided for the Kenyan Government through the 1st to 3rd respondents, to collect taxes on freight charges of goods imported to and on transit to the DRC through the port of Mombasa. DRC entered into the agreement through its Ministry of Information, Transport and Communication, acting through the 4th respondent, a body known as Office De Gestion Du Freit Maritime (OGEFREM) while Kenya entered into the agreement through its Ministry of Information, Transport and Communication. The agreement provided for the assessment, levying and collection of a commission to the tune of 1.8% of the gross freight charges on the imports on behalf of Office De Gestion Du Freit Maritime (OGEFREM).
The parties' agreement was to remain in force for a three-year period subject to a one-off renewal for a further period of three years. It was alleged that the agreement expired on May 29, 2003 and was renewed on December 18, 2003, after the lapse of seven months outside the agreement renewal period.
On October 26, 2012, the 4th respondent issued circulars to shippers, forwarders and agents stating that effective October 29, 2012, payments for Fiche Electronique de Renseigment Certificate (FERI) as well as Certificate of Destination (COD) were to be made to its account in US Dollars subject to all documents being submitted and validated at its offices. The requirements introduced new charges at a rate of USD 100.
The appellants stated that the requirements were in breach of the bilateral agreement. They stated that the payments could only be collected by the 1st respondent on behalf of the DRC Government but not by payment to a private individual’s bank account in Italy, as the receipts issued did not bear the Coat of Arms of the DRC Government or the address of the recipient.
The dispute was entertained by the High Court. The High Court made the finding that the petition was res judicata because of a previous decision by the High Court in Judicial Review No 130 of 2011 (JR No 130 of 2011). In Judicial Review No 130 of 2011, the court held that the imposition of FERI and COD had a legal basis. The High Court held that the judgment issued was a judgment in rem as opposed to one that was in personam or inter parties and it operated against the parties to the petition. On appeal, the Court of Appeal dismissed the appeal and found that the High Court was justified in holding that the suit was res judicata. Aggrieved, the appellant filed the instnt appeal t the Supreme Court.","F. Costs
111.
As to the questions of costs in this matter, this court has previously settled the law on award of costs: that costs follow the event, and that the court has the discretion in awarding costs. This was our decision in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012: [2014] eKLR. Considering our findings above, that the High Court that erred in its findings on the matter before it and further that the Court of Appeal’s findings were in part correct and partly erroneous, and further that we are sending the matter back to the High Court for determination on its merits, we find that there should be no order as to costs.
G. Orders
112.
The petition of appeal dated September 9, 2015 and filed on September 10, 2015 date is allowed in the following specific terms:
(i)
The judgment and order of the Court of Appeal dated July 31, 2015 be and is hereby quashed and set aside.
(ii)
The ruling and order of the High Court dated July 31, 2014 be and is hereby quashed and set aside.
(iii)
For the avoidance of doubt, the ruling of the High Court is null and void.
(iv)
The matter is remitted to the High Court for determination on its merits.
(v)
Each party is to bear its own costs.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/39/eng@2021-08-06
Petition 14 of 2017,Kiluwa Limited & another v Business Liaison Company Limited & 3 others (Petition 14 of 2017) [2021] KESC 37 (KLR) (6 August 2021) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",6 August 2021,2021.0,Nairobi,Civil,Kiluwa Limited & another v Business Liaison Company Limited & 3 others,[2021] KESC 37 (KLR)               ,,"Brief facts
The dispute revolved around three first-row beach adjoining pieces of land (the suit properties). At the High Court, the appellants sought numerous declaratory, judicial review and injunctive orders against the respondents. It was the appellants’ claim, among others, that initially between the first-row beach plots and the Indian Ocean’s high-water mark, there was a strip of land that was reserved for public use (reserve land). The appellant further claimed that the 3rd respondent illegally demarcated from the reserve land and granted title to the 1st respondent as a first allottee for a term of 99 years. In the process of consolidating various parcels of land owned by the 2nd respondent, the boundary of the consolidated plot was extended from its original location which resulted in the encroachment of a portion of the reserve land. The appellants claimed that such actions were unlawful and a violation of their right to property and unrestricted access to the Indian Ocean sandy beach through the reserve land. By a decision delivered on October 13, 2015, the High Court allowed the petition.
Aggrieved, the 1st and 2nd respondents appealed to the Court of Appeal arguing, among others, that all the transfers affecting suit properties were commenced and concluded between 1989 – 1992 while the petition was filed over 20 years later, and the High Court erred in applying article 47(1) and (3) of the Constitution of Kenya, 2010 (the Constitution) while failing to appreciate that the same was forward-looking and not retrospective in nature. In a judgment delivered on November 11, 2016, the Court of Appeal allowed the appeal with costs and set aside the High Court’s decision and orders.  
Aggrieved, the appellants lodged the instant appeal. The appellants challenged, among others, the appellate court’s finding that article 47 of the Constitution could not be applied retrospectively. They also urged that the appellate court failed to appreciate that there was sufficient evidence adduced showing that the reserve land was public land which was incapable of alienation. The respondents opposed the appeal and argued that the High Court lacked jurisdiction to determine a dispute that predated the promulgation of the Constitution and that the Supreme Court had no jurisdiction to entertain matters that had been finalized by the Court of Appeal before the commencement of the Constitution. They also submitted that the suit properties were unalienated Government land pursuant to which they were allocated and accused the appellants of unreasonable delay in bringing a claim against them.","D. Issues for Determination
36.
Having considered the respective cases by the parties and attendant submissions in support thereof, we have concluded that four issues commend themselves to our attention in order to dispose of this appeal. The four issues are:
i.
Whether this court has jurisdiction to determine the appeal herein;
ii.
Whether the 2010 Constitution (article 47) applies retrospectively to this dispute;
iii.
Whether the appellants were time-barred in lodging their claim;
iv.
Whether the portion of land which is the subject matter of the dispute was public land, and if so, whether it was available for allocation.
E. Analysis
i. On jurisdiction
37.
The respondents have tangentially challenged the jurisdiction of this court to determine the appeal. In this regard, the 1st and 2nd respondents argue that the High Court lacked jurisdiction to determine a dispute that predated the promulgation of the Constitution. On their part, the 3rd and 4th respondents submit that the Supreme Court has no jurisdiction to entertain matters that had been finalized by the Court of Appeal before the commencement of the 2010 Constitution.
38.
We find these arguments baffling for two reasons; firstly, the jurisdiction of the High Court was never challenged at the Court of Appeal, nor was the issue raised in any manner at the two superior courts. Secondly, the basis upon which the jurisdiction of this court is being impugned is not borne out of fact, in that, the dispute before us had never been finalized by the Court of Appeal, before the commencement of the Constitution. Suffice it to say that the judgment of the Court of Appeal which gave rise to this appeal, was delivered on November 11, 2016.
39.
Without further belabouring this issue therefore, we have no hesitation in holding that this court is properly seized with jurisdiction to entertain and determine the appeal.
ii. On whether the 2010 Constitution (article 47) can retrospectively apply to this dispute
40.
The respondents have made heavy weather of the issue of the retrospectivity of the 2010 Constitution and in particular, article 47 thereof. It is their argument that the Constitution is forward looking and should never be applied retrospectively, especially, if such application can lead to the deprivation of rights legitimately acquired. In support of this position, they cite the SK Macharia case [supra]. It is their further argument that article 47 of the Constitution ought not to have been applied to the dispute because, sub-article 3 of the same, provides that:
Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall-
a.
Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
b.
Promote efficient administration
41.
The respondents found support for their argument, in the Court of Appeal’s conclusion, that article 47 ought not to have been resorted to by the High Court, in the absence of the legislation envisaged under sub-article 3 above. Such legislation, was only enacted in 2015, long after the impugned Judgment of the High Court.
42.
In the SK Macharia case (supra) cited by the respondents in support of their submissions regarding the non-retrospectivity of the 2010 Constitution, this court rendered itself thus at paragraph 62:
“
At the onset, it is important to note that a Constitution is not necessarily subject to the same principles against retrospectivity as ordinary legislation. A Constitution looks forward and backward, vertically and horizontally, as it seeks to re-engineer the social order, in quest of its legitimate object of rendering political goods. In this way, a Constitution may and does embody retrospective provisions, or provisions with retrospective ingredients. However, in interpreting the Constitution to determine whether it permits retrospective application of any of its provisions, a court of law must pay due regard to the language of the Constitution. If the words used in a particular provision are forward-looking, and do not contain even a whiff of retrospectivity, the court ought not to import it into the language of the Constitution. Such caution is still more necessary if the importation of retrospectivity would have the effect of divesting an individual of their rights legitimately acquired before the commencement of the Constitution.”
43.
A clear reading of the foregoing pronouncement, leaves no doubt that this court did not out-rightly rule out the retrospective application of the 2010 Constitution. The court however cautioned that where the language of a particular provision in the Constitution does not contain even a whiff of retrospectivity, then such provision cannot apply retroactively. The court was to return to this question later in Town Council of Awendo v Nelson O Onyango & 13 others; Abdul Malik Mohamed & 178 others (Interested Parties), SC Petition No 37 o 2014; [2019] eKLR at paragraph 54 when citing SK Macharia with approval, it stated:
“
Even as the law as we have pronounced it, appears to be clear, it is imperative that we consider the provisions of the 2010 Constitution to determine whether any insights can be drawn therefrom for a just and fair resolution of the dispute at hand. In this regard, we derive inspiration from this court’s dictum in Samuel Kamau Macharia & 2 others v Kenya Commercial Bank & 2 others [2012] eKLR; on when a court of law may fall back to the provisions of the Constitution of 2010 in determining a dispute that may have crystallized before the promulgation of the Constitution.
when certifying this appeal as one involving a matter of general public importance, the determination of which, goes beyond the interests of the parties, we were cognizant of the fact that similar disputes were likely to occur in other parts of the country. In resolving such disputes as may occur post the 2010 Constitution, our decision in this appeal will no doubt be instructive, hence the need to consider the relevant provisions of the Constitution, to the extent that the same are backward and forward looking.”
44.
The court then went on to identify a number of provisions in the 2010 Constitution, which it considered relevant to the dispute then before it, notwithstanding the fact that the questions before it, had arisen out of a set of circumstances that had long crystallized before the promulgation of the Constitution. Such provisions were considered to be both backward and forward looking.
45.
It is in this context that we must consider the issue as to whether article 47 of the Constitution can be applied retrospectively to the dispute at hand. First and foremost, in agreement with the appellants, we note that article 47 is a Bill of Rights provision which is stated in deliberate and clear normative terms. Thus, sub-article 1 thereof provides that:
“
Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair”
While sub-article 2 provides that:
“
If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
46.
These provisions set out clear and un-ambiguous entitlements within the language of the Bill of rights. They are expressed in normative terms, as opposed to general principles that would require the further input of the legislature so as to attain prescriptive force. In our view, contrary to the holding by the Court of Appeal, these are substantive entitlements whose enjoyment was not intended to be suspended by sub-article 3 thereof. The legislation contemplated was not meant to create any other norms apart from the ones provided for by the Constitution. The Supreme law thus required that such legislation provide for review of administrative action by either a court or independent tribunal. The legislation was also to provide for efficient administration. The basis for review of administrative action is already provided for in sub-article 1 (expedition, efficiency, lawfulness, reasonableness and procedural fairness). The effect of sub-article 3 was therefore to perfect the enjoyment of these rights, as opposed to suspending such entitlement by divesting the High Court of Jurisdiction to review administrative action.
47.
In this regard, the absence of legislation does not render a court helpless given the interpretative refuge afforded by article 20(3) of the Constitution. It provides that:
“
In applying a provision of the Bill of Rights, a court shall-
a.
develop the law to the extent that it does not give effect to a right or fundamental freedom; and
b.
adopt the interpretation that most favours the enforcement of a right or fundamental freedom.""
48.
In view of the foregoing analysis, we must answer in the affirmative, the question as to whether article 47 of the Constitution was correctly applied by the High Court in addressing the original claim.
iii. Whether the appellants were time barred in lodging their claim
49.
The respondents submit that the appellants are guilty of inordinate delay, having waited for twenty years before filing suit at the High Court. The Court of Appeal held in favour of this argument, finding that the process of transfer, affecting both parcels of land, had been commenced in 1989 and concluded in 1992, while the petition was filed over twenty years later. On the other hand, the appellants contend that they acted promptly as soon as they became aware of the construction of the wall whose effect was to block their view of and access to the ocean. It is their case that, the offending wall was constructed in August 2011, while they filed their petition on February 17, 2012; exactly seven months after the commencement of the wall.
50.
The assertions by both parties, regarding the dates of completion of the transfer of the suit lands, and the commencement of the erection of the wall, have not been factually controverted. It is trite law that for a party to be time-barred from litigating its claim, such limitation of time must be stated in the Constitution, statute or as a principle of Common law. To be successfully raised against a litigant, a court must determine when the time started running. In other words, the question as to when the cause of action arose has to be settled so as to shut out a litigant on grounds of passage of time. These principles/conditions were never at play in the appeal, nor are they evident on the face of the appellate court’s conclusions. It is not lost to us, that the gravamen of the appellants’ grievance, was the allocation of the disputed land by the 3rd respondent to the 1st and 2nd respondents and consequent erection of the wall thereon by the latter. Therefore, the cause of action arose, not at the time of the completion of the transfers, but at the commencement of the erection of the wall. We therefore find no basis upon which the appellants can be said to have slept on their rights.
iv. Whether the disputed land was public land, and if so, whether the same was available for allocation
51.
It is the appellants’ case that the land known as MN/1/5901 was allocated to the 2nd respondent after the 3rd respondent had consolidated three plots, namely MN/1/3622/ A&B and MN/1/856. It was after consolidation that an additional portion measuring 6.0 Ha was allocated to the 2nd respondent through a Letter of Allotment dated June 2, 2011. They therefore submit that the 3rd respondent’s action of extending the boundary of MN/1/5901 to the High-Water Mark was unlawful as it violated the appellants’ right to property (Easement of view) and also breached the provisions of section 45 of the Survey of Kenya Act (cap. 299) and regulation 110 (1) of the Survey Regulations. The appellants argue that this portion of land was excised out of the “foreshore” which is land reserved for public use, including recreation, and therefore not available for allocation to private entities. In support of their position, they cite the contents of a Survey Report which had been tabled in evidence at the High Court, confirming the public status of the land.
52.
The respondents on the other hand, submit that the land in question, was un-alienated government land, within the meaning of section 3 of the Government Lands Act (repealed) pursuant to which it was allocated. The said section, submit the respondents, empowers the President to make grants or dispositions of any estate, interest, or right in or over un-alienated government land. It is their contention that the allocation having been made under this Section, conferred absolute and indefeasible title upon the 1st and 2nd respondents, which title could not be defeated, unless on grounds of fraud. It is their further argument, that absent an easement over the land, no right of access to the ocean could be claimed by the appellants. They are categorical that land parcels MN/1/5901 and MN/1/5902 had never been public land, nor had they ever been reserved for public use. As such, they conclude, these parcels do not fall under the categories of public land as defined under article 62 of the Constitution.
53.
The status of the two parcels of land, can only be determined by an examination of the relevant provisions of the Constitution and applicable statutes. Towards this end, article 62(1)(a) and (l) provides that Public Land is inter alia;
a.
land which at the effective date was un-alienated government land as defined by an Act of Parliament in force at the effective date;
l.
all land between the high and low water marks.
54.
Pursuant to section 45 of the Survey Act, the Survey (Amendments) Regulations 1994, were enacted. Regulation 110 thereof provides as follows:
Coastal offshore reservation
“
110.(1)
Where unalienated Government land fronting on the area coast is being surveyed for alienation, a strip of land not less than 60 metres in width shall normally be reserved above the high-water mark for Government purposes:
Provided that, if the interests of development require, the Minister may direct that the width of this reservation shall be less, than 60 metres in special cases.
(2)
High-watermark in all cases in these regulations means the 'Mean High Water Mark of Spring Tides.”
Section 82 of the repealed Government Lands Act provides:
“
a conveyance, lease or license under this Act shall not, unless otherwise expressly provided therein, confer any right to the foreshore”.
55.
A number of conclusions can be derived from the foregoing provisions as quoted. Firstly, un-alienated government land is public land within the context of article 62 of the Constitution and the Government Lands Act (repealed). This notwithstanding the fact that, the expression “Public Land” only came to the fore with the promulgation of the 2010 Constitution. What article 62 of the Constitution does is to clearly delimit the frontiers of public land by identifying and consolidating all areas of land that were regarded as falling under the province of “public tenure”. The retired constitution used the term “government” instead of “public” to define such lands. Therefore, it is incorrect for the respondents to assert that the lands in question were un-alienated government land but not public land. It is even more inaccurate to argue that the said parcels had never been public land. Un-alienated government land remains public until it is privatized through allocation to individuals or other private entities.
56.
Secondly, to the extent that this assertion by the appellants remains un-controverted, the additional portion of land (6.0 Ha. thereof), which land is comprised within Plots MN/1/5901 and MN/1/5902 (allocated to the 2nd and 1st respondents respectively) was hived off the coastal foreshore by the 3rd respondent. Such foreshore consists of land lying between the Low-Water Mark and the High-Water Mark plus an additional 60 metres above the High-Water Mark within the meaning of regulation 110(1) of the Survey Regulations of 1994. Such land is reserved for Government/Public use.
57.
Although article 62(1)(l) of the Constitution makes no reference to the 60 metres above the High-Water Mark (only limiting itself to the language of “the high and low water mark”) sub-article (1)(n) provides for another category of public land as being any other land declared to be public land by an Act of Parliament in force at the effective date; or enacted after the effective date; hence the relevance of regulation 110(1) which was enacted before the effective date pursuant to section 45 of the Survey Act. Furthermore, section 82 of the Government Lands Act (repealed) which predates the Survey Act, and under which the lands herein fell as un-alienated government land, out-rightly forbids the conferment of any right to the foreshore by a conveyance, lease or license.
58.
Thirdly, the right of access to the Ocean through the foreshore by members of the public or any other owner of land along the coast (ie, the appellants) whether for economic, recreational or aesthetic reasons, is a public right secured by a public easement. Such right is not acquired through a private treaty. It follows that a person or private entity who has encroached on the foreshore cannot interfere with or limit the enjoyment of a public easement through acts of commission or omission. On the other hand, the Government may interfere with or limit such easement only in promotion or protection of the Public Interest as guaranteed by the Constitution and the law.
59.
The foregoing determination of the issues, leads us to make the following declarations:
a.
The 3rd respondent herein, acted illegally by allocating land parcel No MN/1/5901 to the 2nd respondent, which land he had partly curved out of the foreshore contrary to section 82 of the Government Lands Act (repealed) and regulation 110(1) of the Survey Regulations of 1994.
b.
The 3rd respondent herein, acted illegally by allocating land parcel No MN/1/5902 to the 1st respondent, which land he had curved out of the foreshore contrary to section 82 of the Government Lands Act (repealed) and regulation 110(1) of the Survey Regulations of 1994.
c.
The actions of the 3rd respondent herein, violated the appellants’ right to fair administrative action as guaranteed by article 47 of the Constitution.
60.
As a consequence of the foregoing declarations, we make the following orders:
F. Orders
i.
The appeal is hereby allowed.
ii.
The Judgment of the Court of Appeal dated November 11, 2016 is hereby set aside.
iii.
The Judgment of the High Court dated October 13, 2015 is hereby affirmed only to the extent consistent with and limited to our declarations in (a)(b) and (c) above.
iv.
The 1st and 2nd respondents herein, shall take immediate action to remove the offending wall and any other structures that they may have caused to be erected on land parcels No. MN/1/5901 and MN/1/5902.
v.
The costs of this appeal shall be borne by the 1st and 2nd respondents.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/37/eng@2021-08-06
Miscellaneous Application 7 (E011) of 2021,Mbugua alias George Boniface Nyanja v Iqbal (Personal representative of the Estate of the Late Ghulam Rasool Jammohamed) (Miscellaneous Application 7 (E011) of 2021) [2021] KESC 41 (KLR) (6 August 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          W Ouko",6 August 2021,2021.0,Nairobi,Civil,Mbugua alias George Boniface Nyanja v Iqbal (Personal representative of the Estate of the Late Ghulam Rasool Jammohamed),[2021] KESC 41 (KLR)               ,,"A. Background
1.
At the heart of this dispute is a parcel of land known as L.R. NO. 1/387 located along Ngong Road, Nairobi, whose ownership is claimed by the parties in this application. It is common factor that the applicant and the original owner, Ghulam Rasool, (deceased), represented in the proceedings by the respondent, entered into an arrangement in 1985 in which the applicant agreed to purchase the suit property from the deceased at a consideration of Kshs.2,000,000; it is also not in dispute that, having made the initial part payment, the applicant took possession of the property. However, the bone of contention is whether the purchase price was paid in full.
2.
While the applicant asserts that he fully paid the purchase price, the respondent denied the claim, arguing that a balance of Kshs.500,000 remained outstanding, in breach of the terms of the sale agreement. According to the respondent, failure by the applicant to complete the transaction amounted to a repudiation of the agreement.
3.
The applicant filed suit before the Environment and Land Court seeking an order of specific performance to compel the respondent to transfer to him the suit property. The respondent, for his part counter-claimed Kshs.25,020,000 being rent for the period 1986 to 2011 and Kshs.200,000 per month “till judgment is entered.” He also sought interest at court rate and costs, arguing that, apart from failing to pay the balance of the purchase price, the applicant had refused or neglected to sign the sale agreement.
4.
The single question before the Environment and Land Court and indeed before the Court of Appeal was, who, between the applicant and the respondent was in breach of the agreement. The learned trial Judge (Bor, J.) dismissed the respondent’s counter-claim and granted an order of specific performance of the sale agreement.
5.
Aggrieved by this, the Respondent moved to the Court of Appeal seeking to overturn the decision of the trial court. By its judgment of 8th November 2019, the Court of Appeal (Makhandia, Kiage & Kantai, JJA.) allowed the appeal, declaring that the applicant was indeed in breach of the agreement for failing to pay the balance on the purchase price amounting to Kshs.500,000. Relying on the evidence on record, the Evidence Act on the burden of proof and judicial authorities, the Court of Appeal faulted the casual treatment of this contentious question by the trial Judge. With great respect,” they said,
“
…we are not convinced that the learned Judge did justice to this issue. She had before her Nyanja’s claim and the appellants diametrically opposed position. She did not give any reason why she accepted one version and not the other…..As we have pointed out, the onus to prove payment of Kshs.500,000 in cash to the deceased lay on Nyanja. We are un-persuaded that he discharged it……Rather, we are persuaded from all the circumstances of the case that Nyanja never made the alleged payment of Kshs.500,000 in cash to the deceased.
Our holding on the decisive point of whether Nyanja paid the full purchase price is inevitably in the negative. The learned Judge fell into a reversible error in finding, without evidence that the contentious Kshs.500,000 was paid by Nyanja to the deceased and we are therefore entitled, indeed compelled, to set aside the same as we hereby do”.
6.
In addition the learned Judges also found that the sale agreement was not executed in contravention of the express provisions of section 3(3) of the Law of Contract Act; that time having been of essence, the trial Judge was in error for not finding that the applicant’s failure to pay the full purchase price, despite many opportunities granted to him by the respondent, disentitled him to benefit from an order of specific performance. Ultimately and for these reasons, the Court of Appeal set aside the judgment, allowed the counter-claim and remitted the case to the trial Court to assess rent, mesne profits and damages.
7.
The applicant intends to challenge that outcome before this Court and in the meantime has taken out a Notice of Motion expressed to be brought pursuant to the provisions of Articles 163(4)(a) and 159 of the Constitution, Sections 21(2) and 24(1) of the Supreme Court Act, Rules 23 and 26(1) of the Supreme Court Rules (2012) as well as Rules 31 and 32 of the Supreme Court Rules (2020), praying, in the main, that the execution of the entire judgment of 8th November 2019, be stayed “pending the hearing and determination of application dated 15th December 2020 in the Court of Appeal….and or appeal thereof”.
8.
The following three events are relevant for the determination of this application. After the Court of Appeal delivered the judgment, the applicant lodged a notice of appeal, expressing the intention to challenge the whole of that judgment. That notice of appeal was promptly withdrawn. The applicant, instead took out a motion before the Court of Appeal seeking a review of the judgment. That application was rejected in a ruling dated 4th December, 2020. The applicant then filed an application before the Court of Appeal dated 15th December 2020, for certification to appeal to this Court on the basis that the intended appeal will raise matters of general public importance, under Article 163(4) (b) of the Constitution.
Subsequent to these events and even before the last application for certification could be determined, the applicant brought the present Notice of Motion for stay of execution. On 30th April 2021, a single Judge of the Court certified the application urgent and directed that the file to be placed before the Ag. Chief Justice for further directions.","C. Analysis And Determination
13.
The invocation of the Court’s general powers under Article 159 of the Constitution, Sections 21(2) of the Supreme Court Act, and Rules 31 and 32 of the Supreme Court Rules (2020) is itself a confirmation that there are no specific express provisions in the rules of the Court for the relief of stay of execution. The Rules however provide in general terms, inter alia, that an interlocutory application can be brought by way of a Notice of Motion; and that it must be filed together with written submissions and determined likewise by written submissions. See Rule 31.
14.
The three principles that guide this Court in deciding an application for stay are now old hat, but bear repeating nonetheless. Those principles require the applicant to demonstrate, first that the appeal is arguable and not frivolous; that if the order of stay is not granted the appeal will be rendered nugatory; and finally, that it is in the public interest to grant an order of stay. See Gatirau Munya Case (supra).
15.
It must be remembered that the question whether an appeal is arguable, does not call for the interrogation of the merit of the appeal, and the Court, at this stage must not make any definitive findings of either fact or law. An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully by the Court.
16.
On the nugatory aspect, the concern is whether what is sought to be stayed if allowed to happen is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved. See the decision of the Court of Appeal in Stanley Kangethe Kinyanjui vs Tony Ketter & 5 others Civil Application No 31 of 2012, [2013] eKLR.
17.
On the arguability of the appeal, and strictly in accordance with the above strictures, the jurisdiction of the Court is invoked and proceedings commenced, first under Rule 36 of the Court’s Rules, by filing a notice of appeal within fourteen days from the date of judgment or ruling which is the subject of appeal. A notice of appeal is therefore a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave. This Court in Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others, Application 16 of 2014, [2014] eKLR stressed that a notice of appeal is a jurisdictional pre-requisite.
18.
It has been argued, without rebuttal, that the notice of appeal lodged in respect of the judgment of 8th November 2019 was withdrawn, yet that is the very judgment the intended appeal seeks to challenge. That notice of appeal cannot possibly exist after the applicant elected the route of review of the judgment, as settled in a long line of authorities. See Multichoice (Kenya) Ltd vs Wananchi Group (Kenya) Limited & 2 Others, Civil Appeal No. 368 of 2014, [2020] eKLR. The notice of appeal on record relates to the subsequent decision of 4th December,2020, which is not the subject of the intended appeal.
19.
Secondly, once a notice of appeal has been filed, an appeal can then be instituted by lodging, among others, a petition of appeal. No interlocutory application can be brought before a petition is lodged. Rules 31(2) is categorical that;
“
31.
(2)
An interlocutory application shall not be originated before a petition of appeal or a reference is filed with the Court”.
An interlocutory application must be based on an existing petition or reference.
In the Director of Public Prosecutions V. Chrysanthus Barnabus Okemo & 4 others [2018] eKLR, this point was clarified beyond debate thus;
“
(12)
The upshot is that without a petition of appeal having been first filed in this Court, this application was predicated on nothing. It had no foundation upon which to stand and it was a nullity ab initio. The same should not have been accepted for filing…… As the application was a nullity, the proceedings therein were also a nullity and we so declare them”.
20.
Thirdly, an averment by the respondent to the effect that Civil Application No. 14 of 2020 for the very same reliefs as those sought herein is also pending before the Court of Appeal, has not been controverted.
21.
In view of all the foregoing, the application before us contests the exercise of discretion by the Appellate court when there is neither a notice of appeal nor petition of appeal pending before this Court. As a corollary and without this basis, this application cannot succeed, in addition to the fact that there is a parallel application for the very relief pending before the Court of Appeal. Any remarks by this Court would amount to premature comments on issues yet to be adjudicated by the Court of Appeal. In the circumstances, we find that this Court lacks jurisdiction to entertain this application.
D. Disposition
22.
In the end, we find no merit in the instant application and make the following orders:
a)
The Notice of Motion dated 26th April, 2021 filed on 30th April, 2021 is dismissed.
b)
Costs will abide the outcome of the appeal.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/41/eng@2021-08-06
Civil Application 18 of 2020,Waruhiu v Munene & another (Civil Application 18 of 2020) [2021] KESC 42 (KLR) (Civ) (6 August 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola,                                                                                                                          W Ouko",6 August 2021,2021.0,Nairobi,Civil,Waruhiu v Munene & another,[2021] KESC 42 (KLR)               ,,"A. Introduction
1.
This an application by way of Notice of Motion dated 15th July 2020 brought under Rules 15(2), 32 and 36 of the Supreme Court Rules, 2020. The application seeks the following substantive orders:
a)
That thi s Honourable Court be pleased to extend the timefor filing a Notice of Appeal against the Judgment and orders of the Court of Appeal (Waki, Nambuye & Gatembu, JJA) delivered on 8th March 2019 in Nairobi Civil Appeal No. 168 of 2013;
b)
That in the alternative to prayer (a) above, the Applicant’s Notice of Appeal against the whole of the Judgment and Orders of the Court of Appeal (Waki, Nambuye & Gatembu, JJA) delivered on 8th March 2019 in Nairobi Civil Appeal No. 168 of 2013, filed in the Court of Appeal on 14th October, 2019 be deemed duly filed and properly on record; and
c)
That the costs of this application be provided for.
2.
The application is premised upon seven (7) grounds as well as the supporting affidavit of George Kang’ethe Waruhiu sworn on 15th July 2020.
B. Background
i. Proceedings at the High Court
3.
At the High Court, the Respondents and Samuel Njoroge Waruhiu (Samuel), now deceased, filed a plaint dated the 22nd May, 2018, against the Applicant stating inter alia, that they and the Applicant are among the children of the late Senior Chief Waruhiu, who had five (5) wives namely, Wanjiru Waruhiu, Ruguru Waruhiu (A), Waruchu Waruhiu, Mary Njeri Waruhiu and Ruguru Waruhiu (B); that the deceased died intestate leaving a vast estate, inclusive of a fifty five (55) acre farm, subdivided in the year 1959, into five (5) parcels namely, Githunguri/Giathieko/332, 333, 334, 335, and 336; that the above five subdivisions were registered in the names of the first born sons of each household as trustees for themselves and the deceased’s’ children of the respective households; that the late David Wainaina Waruhiu (hereinafter referred to as the late David) as the undoubted eldest son of the Respondents’ mother’s household was registered as a proprietor of parcel No. 336 (the suit property) as a trustee for himself and all the children of their mother’s household; that without their consent, knowledge and/or participation, the late David transferred the suit property to the Applicant on 17th October, 1980; and that it was not until the year 2005 that they discovered the fraud and illegality and that efforts to have the issue resolved amicably at family level bore no fruit.
4.
Consequently, the Respondents sought from the Court declarations that: they are beneficiaries of the suit property; that the late David ,as a trustee for himself and the Respondents, had no mandate to transfer the suit property to the Applicant without their consent and or participation; that the transfer of the suit property by the late David to the Applicant was fraudulent and therefore illegal, null and void and restraining orders against the Applicant from either selling and or transferring the suit property to any 3rd party or howsoever, receiving proceeds of such sale.
5.
On 20th April 2011, Gacheche, J (as she then was), dismissed the Respondent’s claim against the Applicant. The learned Judge found that the alleged trustee relationship between the late David and the Respondents had not been proved by credible evidence; that allegations of fraud as pleaded had not been established to the required threshold; and that the Respondents’ claim was time-barred in terms of the provisions of Section 7 of the Limitation of Actions Act, Cap 22 of the Laws of Kenya.","D. Determination And Analysis
17.
The Application raises one issue for determination by this Court, namely, whether this Court should grant an extension of time for the Applicant to file a Notice of Appeal. If the answer is in the affirmative, should the Notice of Appeal filed on 14th October 2019 be deemed as duly filed and properly on record?
18.
The Court’s jurisdiction to extend time is provided for by Rule 15(2) of the Supreme Court Rules, 2020 which grants this Court the discretion to extend time in the following specific terms:
""The Court may extend the time limited by these Rules or by any decision of the Court”
19.
Concerning the time for filing of a Notice of Appeal, Rule 36(1) of the Supreme Court Rules, 2020 provides that the same shall be filed within fourteen days from the date of Judgment or Ruling which is the subject of appeal. Sub-rule (4) also provides that in lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain certification before filing the Notice of Appeal.
20.
In the present case, we note that the Judgment of the Court of Appeal was delivered on 8th March 2019. The last day for filing a Notice of Appeal was therefore 22nd March 2019. An application for extension of time before this Court was not filed until 495 days later.
21.
The guiding principles on extension of time have already been set by this Court in the Nick Salat Caseas follows:
… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.
… we derive the following as the underlying principles that a Court should consider in exercising such discretion:
1.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;
2.
a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3.
whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to-case basis;
4.
where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;
5.
whether there will be any prejudice suffered by the respondents, if extension is granted;
6.
whether the application has been brought without undue delay; and
7.
whether in certain cases, like election petitions, public interest should be a consideration for extending time”
22.
Further to the above, this Court has always emphasized the need for an Applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court – See the County Executive of Kisumu case.
23.
In the present case, the Applicant has submitted that failure to file the Notice of Appeal was caused by an error on the part of his then advocates and that error should not be visited on him. As argued by the Respondents, there is nowhere in the Application where the Applicant has demonstrated any effort and/or due diligence on his part to ensure that the Notice of Appeal and or an application for extension of time was filed within time or soon after the period for filing had expired. His explanation is therefore not satisfactory.
24.
The other explanation given by the Applicant to justify the delay, was that he was ill and unable to pursue the case. We have perused annexure 5 of the Applicant’s supporting affidavit and note that his last admission in hospital was between 15th to 17th July 2019. However, there is no explanation for the period between 8th March and 14th July 2019. The Applicant has nonetheless deponed that he instructed his advocates on record on 14th October 2019 who filed a Notice of Appeal on the same day (though out of time). Although the Applicant contends, at paragraph 11 of his supporting affidavit, that his advocates attempted to file the application before this Court on the same day and were turned away at the Registry, there is no evidence to sustain those allegations. We do not, in any event, understand why an advocate or a litigant could have been turned away from a public registry and no explanation given for that action. That explanation falls flat, in our view.
25.
The Applicant’s final explanation is that the Covid-19 pandemic led to closure of Courts and his advocates’ offices. Whereas in other circumstances this explanation may attract sympathy, we take judicial notice of the fact that the Covid-19 pandemic did not at any time lead to absolute closure of Courts including this Court. Although service delivery was scaled down, services were still offered, and urgent applications prioritized. Again, we do not find this explanation sufficient to warrant extension of time and to justify the delay in filing the present application.
26.
The upshot of the above finding is that we are inclined to disallow the application for extension of time with costs to the Respondents.
E. Orders
27.
Consequently, we make the following Orders:
i.
The Notice of Motion dated 15th July 2020 is dismissed.
ii.
The Applicant shall bear the costs of the Respondents.
28.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/42/eng@2021-08-06
Application 1 of 2021,Ambala & 2 others v Ambala & another (Application 1 of 2021) [2021] KESC 45 (KLR) (Civ) (16 July 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,Ambala & 2 others v Ambala & another,[2021] KESC 45 (KLR)               ,,"A. INTRODUCTION
1.
The application before Court is dated 14th January 2021, and was lodged on 18th January 2021. It is brought pursuant to the provisions of Articles 23 (3), 25 (c), 27 (1) (2), 48, 50 (1), 159, 163 (4) (a) and 259 of the Constitution, Sections 15 (2), 21 (2) and 24(1) of the Supreme Court Act and Rules 3, 21 and 22 of the Supreme Court Rules, 2020. The applicants seek the following orders:
i.
A temporary injunction restraining the respondents or their agents from trespassing, wasting constructing alienating or otherwise interfering or dealing with Land Reference Nos. 1160/286, 287 and 288 and their respective sub-divisions and assents (the suit property) pending the hearing and determination of the application;
ii.
A temporary injunction restraining the respondents or their agents from trespassing, wasting, constructing alienating or otherwise interfering or dealing with the suit property pending the hearing and determination of the intended appeal;
iii.
Extension of time to lodge and serve an appeal and record of appeal against the Ruling and Order of the Court of Appeal (Kairu, Sichale & Murgor, JJ.A) in Civil Appeal (Application) No. 116 of 2016; and
iv.
Costs of the application.
2.
The application is grounded on the supporting affidavit sworn on 14th January 2021 by Mercy Wanjiru Mathai, Advocate. It is opposed via the respondents’ Grounds of Opposition dated 5th March 2021 and Replying Affidavit sworn by the 1st respondent on even date.
B. BACKGROUND
3.
The trial Court in a judgment delivered on 29th June 2016 in Succession Cause No.68 of 1986 revoked a consent order dated 3rd December 2004 which had distributed the assets subject of the succession cause to the beneficiaries, it cancelled and invalidated all prior transactions relating to the suit property and reverted the suit property to the estate for redistribution. In the impugned judgment, the Court of Appeal (Githinji, Okwengu & Mohammed, JJ.A) allowed the appeal before it. It set aside the High Court judgment, reinstated the consent order of 3rd December 2004, revoked the cancellation of transfers of the part of suit property and revoked all transaction entries relating to the suit property made after the date of the High Court judgment. Aggrieved, the applicants filed a review application against the entire judgment and orders and the appellate court (Kairu, Sichale & Murgor, JJ.A) dismissed the application for lack of merit vide its ruling delivered on 9th October 2020.
","D. ANALYSIS
10.
It is the applicants’ submission that they have satisfied the principles for extension of time settled in the Nicholas Salat Case. They urge that the delay in filing the appeal and record of appeal was partly occasioned by the Appellate Court’s failure to furnish them with typed proceedings in time. They assert that they filed the Notice of Appeal within time, timeously applied for the typed proceedings and exercised due diligence in following up on the same. They add that the delay in filing the instant application after the typed proceedings had been availed was occasioned by their inability to raise legal fees, due to economic hardship occasioned by the Covid-19 pandemic.
11.
The respondents strongly oppose this assertion. On the contrary, they submit that the applicants have been dishonest and are guilty of misrepresentation. While attaching documentary evidence, they submit that the applicants are engaged in gainful employment and have inherited a vast estate from their father hence were able to raise legal fees specially to file an application for extension of time. This has not been rebutted by the applicants.
12.
We settled the principles that are to guide us in the exercise of our discretion to extend time in the Nicholas Salat Case. The applicants urge that the delay in filing the appeal was partly occasioned by the Appellate Court’s failure to issue typed proceedings within time. On the issue of delay of typed proceedings, this Court has previously extended time and held that such a delay is not on the part of the party but the court and that this issue consists of facts beyond a party’s reach.
13.
In the Hassan Nyanje Charo Case, we stated:
“
(27)
Counsel for the applicant has stated that he has exercised all due diligence to get the proceedings from the Court of Appeal, but to no avail...
(28)
Would it be in the interests of justice then to turn away an applicant who has, prima facie, exercised all due diligence in pursuit of his cause, but is impeded by the slow-turning wheels of the Court’s administrative machinery? We think not.”
14.
However, this reason is only sufficient to explain the delay from the date of applying for the typed proceeding to 20th December, 2020 when the same were availed. It is trite law that, in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. This was our finding in the case of County Executive of Kisumu v County Government of Kisumu & 8 others; SC Application No 3 of 2016, [2017] eKLR.
15.
The applicants filed the instant application on 18th January 2021, 29 days after the proceedings had been availed. They explain that this additional delay was occasioned by lack of legal fees to instruct an advocate and the time taken by the advocates to draft the instant application. This reason fails to persuade the Court to exercise its discretion to extend time, especially in light of the uncontroverted evidence adduced by the respondents to support the assertion that the applicants are gainfully employed and/or have inherited a vast estate hence could afford legal fees.
16.
Rule 40 of our Rules allow the filing of requisite documents late, but with leave of court. Having filed a Notice of Appeal on 21st October 2020, nothing prevented them from filing the appeal with the available documents within the 30 days. Typed proceedings are in any event not among the mandatory documents that must accompany a petition of appeal in the first instance. In Mombasa County Government v Kenya Ferry Services & another SC Application No.29 of 2018[2019]eKLR, we held that the applicant ought to have filed the appeal and the record with the documents that were available to demonstrate some diligence, then later seek leave of this Court to file the Supplementary Record out of time.
17.
Having so considered, we find that on the basis of the principles set out by this Court for extension of time, the applicants have not satisfactorily explained a basis for this Court to exercise its discretion in their favour.
18.
In the absence of the intended appeal to be filed, the issue of temporary injunction as sought does not arise. Consequently, the application before us is one for dismissal.
E. ORDERS
19.
In the event, we hereby exercise our discretion and order as follows;
i.
The Notice of Motion dated 14th January 2021, and lodged on 18th January 2021, is hereby dismissed;
ii.
The costs of this application shall be borne by the applicants.
It is accordingly ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/45/eng@2021-07-16
Petition 22 of 2018,Base Titanium Limited v County Government of Mombasa & another (Petition 22 of 2018) [2021] KESC 33 (KLR) (16 July 2021) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,Base Titanium Limited v County Government of Mombasa & another,[2021] KESC 33 (KLR)               ,,"Brief facts
The appeal concerned a cess of Kshs 3000 imposed upon each of the appellant’s trucks from June 17, 2014, whenever transporting its minerals from Kwale County to Mombasa Port (the port) which was within the 1st respondent’s jurisdiction. That cess was levied under item 90 of the Schedule to the Mombasa County Finance Act, 2014. The 1st respondent continued to impose the cess despite a protest from the appellant that the same contravened the Constitution of Kenya, 2010, (the Constitution) and further confirmation from the Attorney General that the cess imposed was unconstitutional.
Aggrieved by the 1st respondent’s action, the appellant filed a suit at the High Court and sought among other orders; a declaration that the actions of the 1st respondent to charge the cess was unconstitutional; and a declaration that the 1st respondent had no mandate under the Constitution to pass any legislation that restricted the appellant’s right of movement by imposing a tax or revenue to be paid by the appellant as a condition for moving its goods across the 1st respondent’s boundaries.
The High Court dismissed the appellant’s petition with costs and stated that county governments had, under article 209(3) and (4) of the Constitution, the power to levy taxes and charges for services that they provided including road transport services. Dissatisfied by the High Court’s finding, the appellant lodged an appeal at the Court of Appeal. The Court of Appeal dismissed the appeal with costs hence the appellant filed the instant petition of appeal at the Supreme Court.","C. Issues for Determination
21.
Having carefully considered the grounds of appeal, the submissions of the parties, the authorities cited in support thereof, it is clear to us that there are two issues falling for determination, that is:
i.
Whether the cess charge imposed by the Mombasa County Government upon each of the appellant’s truck was a charge on services as contemplated under article 209(4) & (5) of the Constitution of Kenya , and if so
ii.
What remedies should the court offer?
D. Analysis
i. Whether the cess charge imposed by the Mombasa County Government upon each of the appellant’s truck was a charge on services as contemplated under article 209(4) & (5) of the Constitution of Kenya?
22.
The bone of contention in this appeal is whether the cess charge imposed by the 1st respondent upon each of the appellant’s truck is a charge on a service as contemplated under article 209(4) and (5) of the Constitution. It is the appellant’s case that the 1st respondent’s levy of KES. 3000 against each of its truck contravenes article 209(4) and (5) of the Constitution as they do not provide any services to them to justify the charge. Furthermore, that under article 209(5) of the Constitution, such charges prejudice national economic policies and economic activities across county boundaries. Conversely, the 1st Respondent is adamant that the said article bestows on them the power to impose any such charges for the services they provide and have not acted in excess of the powers stipulated in the said provisions. It is also the 1st respondent’s case that the constitutionality of Item 90 of the Mombasa County Finance Act, 2014 was never raised at the trial court and that the appellant is barred from raising the same in this Court.
23.
Article 185(2) of the Constitution of Kenya confers a County Government with the Legislative Authority to make any laws that are necessary for, or incidental to, the effective performance of the functions and exercise of the powers of the County government under the Fourth Schedule.
24.
Further, article 186(1) states that the powers and functions of the National government and the County governments, respectively, are as set out in the Fourth Schedule, and finally, under article 187 (2)(b) of the Constitution, the constitutional responsibility for the performance of the functions or exercise of the power remain with the government to which it is assigned by the Fourth Schedule.
25.
Under the provisions of article 209, a county is empowered to raise revenue and levy taxes, rates, or other charges. Additionally, under sub article (4), the 1st respondent is authorized to impose charges for services provided. So then, what is the meaning of the word ‘services’ for purposes of application within the meaning of article 209(4) of the Constitution? The word ‘service’ as provided in the Oxford Dictionary of English 3rd Edition 2015 is “a system that provides something that the public needs, organized by the government or a private company”. This may include for County transport which entails County roads; street lighting; traffic and parking; public rods transport; and ferries and harbors, excluding the regulation of international and national shipping and matters related thereto comprise some of the functions and powers of County Governments under Schedule four part 2, section 5.
26.
Taking that definition into account, a plain reading of that article reveals that the intention of article 209(4) of the Constitution, is to confer County Governments the discretionary powers to impose charges for services, more specifically, that they can charge or impose a payment in exchange of a public need or amenity.
27.
To our minds, the insertion of the words ‘for services’ in article 209(4), are a qualification to the charge of the services. Whereas a County can levy charges, it must do so in exchange for an amenity. Put differently, a County does not have the authority to charge a cess, levy or tax where they do not offer anything in return.
28.
Undoubtedly, Constitution permits County Governments to impose charges for the realization of its powers under the Fourth schedule. But that power does not go unchecked, in the spirit of harmonious interpretation of the Constitution, in enacting the law, County Governments must heed the provisions of article 209 (5) and ensure that the charges invoked will not be detrimental to national economic policies, economic activities across boundaries or the national mobility of goods, services, capital or labor.
29.
Consequently, we agree with the High Court and the Court of Appeal, only to the extent that County Governments have the mandate to charge levies for services rendered.
30.
Having found that Counties can charge for services, it then falls to us to determine if the roads accessed by the Petitioners are those within the purview of the Counties. Mobility of goods in Kenya is governed by the Kenya Roads Act.
Under that Act, the Kenya National Highways Authority (KeNHA), the Kenya Urban Roads Authority (KURA) and the Kenya Rural Roads Authority (KERRA), are established for among others “constructing, upgrading, rehabilitating and maintaining roads, controlling and implementing policies relating to national roads, rural roads and urban roads.”
31.
More specifically, section 22 of that Acts vests in these authorities’ power to: maintain, operate, improve and manage the roads under its jurisdiction; construct new roads; measure and assess the weights, dimensions and capacities of vehicles using any road and provide measures to ensure compliance with rules relating to axle load control, other provisions of the Traffic Act (cap. 403) and any regulations under this Act; and provide such amenities or facilities for persons making use of the services or facilities provided by the Authority as may appear to the Authority necessary or desirable.
32.
There is also established a Kenya Roads Board whose mandate under the Kenya Roads Board Act, is to oversee the road network in Kenya and coordinate maintenance, rehabilitation, and development, all funded by the Kenya Road Board Fund established under section 31 of the Kenya Roads Board Act.
33.
In High Court in Petition no 472 of 2014, Council of County Governors v Attorney General & 4 others [2015] eKLR the court clarified that the County governments will be in charge of Class D, E, F and G (County Roads), whilst the National government is in charge of Class A, B and C (National Trunk Roads). That court decision resulted in a subsequent Legal Notice No 2 of 2016, which clearly elucidated the road network management system in the Country. Following that notice, the Kenya Roads Board, further categorized the roads network into various classes.
34.
KeNHA is responsible for the development, rehabilitation, management, and maintenance of all National Trunk Roads comprising Classes S, A, and B roads. Class-S Road is defined as a highway that connects two or more cities and carries safely a large volume of traffic at the highest speed of operation; Class-A Road is defined as a highway that forms a strategic route and corridor connecting international boundaries at an identified immigration entry and exit points and international terminals such as international air or sea ports; and finally a Class-B Road, which is a highway that forms an important national route linking national trading or economic hubs, County Headquarters and other nationally important centres to each other and to the National Capital or to Class A roads.
35.
KURA is responsible for the management, development, rehabilitation and maintenance of all public roads in cities and municipalities except where the roads are categorized as national roads. After the January 2016 gazettement, KURA’s mandate was expanded to all counties in line with article 6(3) of the Constitution.
36.
On their part, KERRA is in charge of constructing, upgrading, rehabilitating and maintaining rural roads, controlling reserves for rural roads and access to roadside developments and implementing road policies in relation to rural roads. Under the classification of roads, KERRA is in charge of categories D, E, F, G, K, L, P, R, S, T, U, W.
37.
It is therefore clear to us that there is a distinction between national roads and county roads. National roads are maintained solely by the national government through KeNHA while Counties, maintain their roads in collaboration with the other authorities.
38.
So, what is the classification of the road used by the trucks transporting the appellants goods? In other words, does the 1st respondent operate, or maintain the road used by the appellant in accessing the Port? What service does the 1st respondentoffer in regard to this particular road to entitle it to levy a sum of Kes 3000 on each of the appellant’s trucks? Does entry into the 1st respondent’s jurisdiction via such road justify the levy of the charge which would then be for entry? Is that a service and are they entitled to that fee?
39.
It is not in dispute that to access the Port, the appellant must use the Likoni-Ukunda Road which the Kenyan road system identifies as an A14 road. Going by the background and network system explained in detail above, that road, A14 falls directly into the category of a national road. That category falls directly under the mandate of KeNHA and the National government which is in charge of its development, rehabilitation, management and maintenance. In this matter, we note that the County Government has not clarified how the charge meets the categories it sets out in Item 90 of the Mombasa County Finance, 2014. They have not stated if they provide street lighting, parking or maintenance of the road accessed by the petitioners. While the superior courts were in agreement with them that the charge was a ‘road service’ charge, we are of a contrary opinion, as the 1st respondent did not illustrate how such road services are provided.
40.
Further, having established that it is not a county road, it is then improper for County Government of Mombasa to levy a charge for road service for the same road that vests in the National Government.
41.
We also note that it is the appellant’s further case that the 1st respondent in issuing receipts marked ‘miscellaneous income’ or ‘Likoni Revenue Barrier’, did not disclose the nature nor details of the payment.
42.
In plain language, article 201 (a) of the Constitution of Kenya calls for openness and accountability including public participation in financial matters. It is not lost to us the intention of this provision is to ensure efficiency within the public financial management sector which has faced tremendous challenges occasioned by gaps that has resulted in the past embezzlement of public funds. This article seeks to curb the problem of abuse of public resources and corruption, by calling for transparency in the handling of these resources. We emphasize that public finances should be managed efficiently with firm checks and balances.
43.
It is clear to us that in issuing receipts marked ‘miscellaneous income’ the County government of Mombasa has created avenues for possible abuse. The Oxford Dictionary of English 3rd Edition 2015 defines miscellaneous as a word “consisting of many different kinds of things that are not connected and do not easily form a group”. By that very definition, the word ‘miscellaneous’ is vague, and it is not easily discernable what the payments are directed at. Using the term “miscellaneous” to account for payment leads to ambiguity which goes against the spirit of article 201 of the Constitution. That word could refer to any number of things and it is essential that this form of opaqueness in accountability be discouraged. It is imperative that any payments to Counties must clearly state in precise, unambiguous words what the payments are for.
44.
Flowing from the above, we underline that it is the National government that is the provider of the road service in this instance. It is clear therefore that should an access fee be owing, then the proper entity to which that amount is owed should be the National government not the County government. In that regard, we find that the cess imposed by the County Government of Mombasa under Item 90 of the schedule to the Mombasa County Act 2014 was improperly imposed as a charge for services rendered for services provided by the County Government and is not a charge for service as contemplated by article 209 (4) of the Constitution of Kenya.
45.
We, therefore, fault the superior courts’ interpretation and application of article 209(4) of the Constitution in their finding that the cess levied by the 1st respondent was in line Constitution.
ii. What reliefs should the Court offer?
46.
In the petition before us, the appellant in summary seeks the following orders: the appeal be allowed; a declaration that the Court of Appeal in its decision, made on July 5, 2017, erred in its interpretation and application of article 209(4) of the Constitution; a reversal of the Court Appeal’s decision of 5th July 2017; and costs of this appeal, as well as those incurred before the Court of Appeal.
47.
Having faulted the superior court’s interpretation and application of article 209(4) of the Constitution regarding the constitutionality of the cess KES 3000/-imposed on each of the Appellant’s truck upon entering the 1st Respondent’s jurisdiction, we hereby declare the superior courts’ interpretation of article 209(4) of the Constitution unconstitutional and therefore, null and void. Consequently, we set aside the Judgements of the High Court and of the Court of Appeal.
48.
We note that the appellant sought us to grant the reliefs sought in Civil Appeal No 69 of 2017. We have noted that from page 4 of the record of appeal, the appellant sought the Court of Appeal to grant the prayers sought in the petition of appeal dated February 20, 2015. In that petition, the prayers sought were as follows: (a) a declaration that the actions of the 1st respondent to charge the appellant a cess in the sum of Kshs.3,000 per truck, or any sum at all, a condition for the appellant to move its goods across the boundaries of the 1st respondent’s county is unconstitutional, null and void; b) a declaration that the 1st respondent has no mandate under the Constitution to pass any legislation that restricts the appellant’s right of movement by imposing a tax or revenue to be paid by the appellant as a condition for moving its goods across the 1st respondent’s boundaries; and (c) a mandatory injunction compelling the 1st respondent to refund to the appellant the sum of Kshs.1,542,000 paid by the appellant to the 1st respondent under duress as at December 31, 2014, and/or any other additional sums that the appellant has so paid to the 1st respondent from January 1, 2015 as cess on trucks transporting goods across the 1st respondent’s boundaries to the date of compliance with the mandatory injunction.
49.
Since we have already addressed the first two prayers, we now turn to the third prayer in that petition where the appellant sought: a mandatory injunction compelling the 1st respondent to refund to the appellant the sum of Kshs.1,542,000 paid by the appellant to the 1st respondent under duress as at December 31, 2014 and/or any other additional sums that the appellant has so paid to the 1st respondent from January 1, 2015 as cess on trucks transporting goods across the 1st respondent’s boundaries to the date of compliance with the mandatory injunction. We note with concern that neither the High Court nor the Court of Appeal considered the appellant’s claim for a refund of the sum of KES 1, 542,000/- that had been remitted as of December 31, 2014 and any other payments remitted afterwards. Having confirmed from the record that the said amount was pleaded and proven and having nullified the 1st respondent’s action to collect the same amount, if is our finding that the appellant is entitled to a refund of the sum of KES 1, 542,000/ being the amount remitted as of December 31, 2014. As for any other additional sums paid by the appellant from January 1, 2015 onwards, the same may be pursued at the High Court.
50.
Concerning costs, this court has previously settled the law on award of costs: that costs follow the event, and that a Judge has the discretion in awarding costs in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC. Petition No 4 of 2012: [2014] eKLR. The appellant sought for costs at the appellate court and before this court. We note that the learned Judges of appeal made no orders as to costs on the ground that this was a public interest matter. Since this was a pure exercise of discretion which discretion has not been challenged by the Appellant, we shall not interfere with the same. As for the costs before this court, it is our finding that the 1st respondent shall bear the same.
E. Orders
51.
Consequent upon our findings above, the final orders are that:
1.
The Petition of Appeal dated August 14, 2018 and filed on August 15, 2018 is hereby allowed.
2.
The Judgment of the Court of Appeal dated July 5, 2018 is hereby set aside.
3.
The Judgment of the High Court dated February 21, 2018 be and is hereby set aside.
4.
For the avoidance of doubt:
a.
a declaration is hereby issued declaring that the actions of the 1st respondent to charge the appellant a cess in the sum of Kshs 3,000 per truck, or any sum at all, a condition for the appellant to move its goods across the boundaries of the 1st respondent’s County is unconstitutional, null and void.
b.
The 1st respondent is hereby directed to refund to the appellant the sum of Kshs 1,542,000 paid by the appellant to the 1st respondent as of December 31, 2014.
c.
Any other additional sums that the appellant has so paid to the 1st respondent from January 1, 2015 to the date of this judgment as cess on trucks transporting goods across the 1st respondent’s boundaries shall be pursued at the High Court.
d.
The 1st respondent shall bear the costs of the appeal.
52.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/33/eng@2021-07-16
Application 4 (E006) of 2021,Bookpoint Limited v Guardian Bank Limited & Guilders International Bank Limited (Application 4 (E006) of 2021) [2021] KESC 73 (KLR) (16 July 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola,                                                                                                                          N Ndungu",16 July 2021,2021.0,Nairobi,Civil,Bookpoint Limited v Guardian Bank Limited & Guilders International Bank Limited,[2021] KESC 73 (KLR)               ,,"A. Introduction
1.
By way of a Notice of Motion dated and filed on 25th February 2021, the applicant sought an order of extension of time to file a Petition and Record of Appeal. Notably, there is no indication under which provision of the law the application is made.
2.
The application is anchored on the grounds that: the Judges of Appeal notes were not obtained in good time, and that there was a misunderstanding regarding timelines, the petition having been lodged on the 24th of day of February 2021 when it ought to have been lodged on or about the 19th of February 2021.
B. Applicant’s Case
3.
The application is supported by the affidavit and a supplementary affidavit sworn and filed on 25th February 2021 and 5th March 2021, respectively by Virinder Goswami, counsel for the applicant,
4.
It is deposed that the delay in filing the petition and record of appeal was occasioned by failure to obtain the Judges of Appeal notes in good time. That they wrote to the Registrar of the Court of Appeal on 11th January 2021 requesting for the Judges’ notes. A Notice of Appeal was filed on 19th January 2021. With no response forthcoming from the Registrar, they made several visits to the registry and wrote a reminder on the 29th of January 2021.
5.
That it was not until the 16th of February 2021 that they were informed that the notes were ready, but as the Record ought to have been filed by the 19th of February 2021, they only had two days to prepare and bind over 4 volumes amounting to 44 books which despite their best efforts they were unable to do.
6.
In its submissions dated and filed on the 25th of February 2021, it is submitted that there was only a two-day delay in the filing of the Record, and that the delay is not detrimental to the respondents as their advocates were served with the Notice of Appeal by the 26th January, 2021. Further, that the appeal raises important constitutional issues and other weighty issues which need the input of the apex Court.
C. 1st Respondent’s Case
7.
In response to the application, the 1st respondent filed grounds of opposition and written submission on 22nd March 2021. It urges that the purported appeal has been filed irregularly and is predicated on a Notice of Appeal that was filed 15 days out of time. That the applicant filed its Notice of Appeal on the 19th January 2021 yet the decision being challenged was delivered on the 18th of December 2020. That under Rule 36(1) of the Supreme Court Rules, 2020 and Section 57 of the Interpretation and General Provisions Act, Cap. 2 Laws of Kenya, the applicant ought to have filed its Notice of Appeal within 14 days from 18th December 2020, the last day being 4th January 2021.
9.
The 1st respondent submits that a Notice of Appeal is a jurisdictional prerequisite signifying the intention to appeal, and purported late filing without leave cannot be sanctified by this Honourable Court. In support thereof, they cite the following decisions of this Court: University of Eldoret & another v Hosea Sitienei & 3 Others [2020] eKLR and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, SC Application No 16 of 2014; [2014] eKLR (Nicholas Salat Case).
90.
It is further urged that extension of time is not a right of a party, but an equitable remedy only available to a deserving party at the discretion of the Court, and that the applicant bears the burden of demonstrating to the satisfaction of the Court the cause of the delay, which, it is argued, the applicant herein has failed to do. On this submission, they rely on the case of County Executive of Kisumu vs County Government of Kisumu & 8 others, SC Civil Appl. No 3 of 2016; [2017] eKLR. (The County Executive of Kisumu Case)
11.
It is further submitted that Rule 40 (1) of the Supreme Court Rules, 2020, provides a complete and exhaustive list of documents that need to be contained in the Record of Appeal and judges’ notes are not included. Further, that Sub-Rule (4) provides for introduction of such notes by way of a supplementary record of appeal without the need for leave of Court, within fifteen days.
12.
Lastly, it is submitted that the applicant failed to annex a draft intended petition to either of its affidavits, instead, filing a Petition of Appeal, which it deems presumptuous, as filing of a Petition before this Court, out of time, without leave is inappropriate and renders such a Petition a nullity. They cite the case of Nicholas Salat Case in support thereof and urge that the Court rejects the application in its entirety with costs.
D. 2nd Respondent’s Case
13.
The 2nd Respondent filed Grounds of Opposition and written submissions dated 8th March 2021. It submits that the applicant has failed to lay any satisfactory basis upon which the Court should exercise its discretion in its favour. That the law does not require or contemplate that the record of appeal to be filed should contain the judges’ notes thus their unavailability is not reasonable cause for failure to file a Petition of Appeal in time.
14.
The 2nd Respondent also submits that the applicants Notice of Appeal was also filed out of time. That the last day for the filing of the Notice of Appeal, the judgment having been delivered on 18th December 2020, would have been 4th January 2021. Therefore, a Notice of Appeal filed on 19th January 2021 was out of time, yet even in this application, no request has been made to regularize this by way of extension of time for filing a proper Notice of Appeal.
15.
Ultimately, it is submitted that the Court lacks jurisdiction in this matter, since as can be gleaned from the judgment of the Court of Appeal, the issues before the superior courts did not involve the interpretation and application of the Constitution; and neither has the applicant sought leave to bring its appeal under Article 163(4) (b) of the Constitution.
E. Applicant’s Response to the 1st Respondent
16.
In response to the 1st respondent’s assertions, the applicant argues that under Rule 3 (e) of the Court of Appeal Rules, time for filing a Notice of Appeal in the Court of Appeal is excluded by the Christmas vacation, that is, from 21st December to 13th January. Further, that while the Judges’ notes can be filed at a later stage, there is nothing stopping the applicant from filing the same along with the Record. And that the Supreme Court Registry directed that leave to file the petition be first obtained. The applicant is adamant that having filed and served the record and the Petition in time, it is simply seeking a 2 days’ extension to regularize the filing and such procedure is not in any way prejudicial to the respondent.","F. Analysis
17.
The applicant only seeks one prayer from the Court: that it extends time for it to lodge the Petition of Appeal out of time. Indeed, by dint of Rule 15 (2) of the Supreme Court Rules, 2020, this Court is clothed with the power to extend time provided therein.
18.
Upon consideration of the parties’ submissions and evaluation of the record before us, we note that the 1st respondent raised a pertinent issue which this Court cannot ignore. It contended that even the Notice of Appeal on which the applicant wants to anchor its appeal was not lodged in good time. It is common ground that the judgment of the Court of Appeal was delivered on 18th December 2020. Under Rule 36 (1) of the Supreme Court Rules, 2020, a person intending to appeal to the Court ought to file a Notice of Appeal within fourteen days from the date of judgment or ruling which is subject of the appeal. Consequently, in this matter, the Notice of Appeal ought to have been filed on the 14th day, which was 1st January 2021. However, since that date is a public holiday and was a Friday, the immediate next working day is 4th of January 2021. This is the day the Notice of Appeal ought to have been filed. Was this done?
19.
The applicant filed its Notice of Appeal on 19th January 2021. These were 15 days out of time. Did it get leave or was it justified? In a bid to explain the delay, the applicant sought to rely on Rule 3(e) of the Court of Appeal Rules that excludes time for filing of a Notice of Appeal during the Christmas vacation. On this assertion, the applicant is misguided.
20.
This Court has settled that the only regime of law that govern proceedings before it is, the Constitution, Supreme Court Act, the Supreme Court Rules and any Practice Directions made by the Court or the Chief Justice. In Daniel Kimani Njihia v Francis Mwangi Kimani & Another, Civil Appl No. 3 of 2014; [2015] eKLR, (the Daniel Kimani Njihia Case) it was stated:
“
(14)
This Court’s jurisdiction is exercisable only on the basis of express provisions of the Constitution and the law. The operational rules for this Court (Supreme Court Rules, 2012) are made pursuant to the Constitution, Article 163(8) of which provides:
“The Supreme Court shall make rules for the exercise of its jurisdiction”.
(15)
Consequently, the only applicable sources of law when moving the Supreme Court are the Constitution, the Supreme Court Act, and the Supreme Court Rules, 2012. The Appellate Jurisdiction Act is not applicable when moving this Court. Neither is the Civil Procedure Code. In the Hermanus case, this Court had indicated how it should be moved, thus [paragraph 23]:
“… It is trite law that a Court of law has to be moved under the correct provisions of the law.”
Hence, without thus identifying the proper legal framework for the motion, an application is liable to be struck out.”
21.
Further, in the County Executive of Kisumu, it was held that an applicant seeking extension of time, cannot rely on the provisions of the Civil Procedure Code to submit that time does not run between 19th December to 21st January. The Court of Appeal Rule cannot also be imported for matters before the Supreme Court. Reference has to be made to the Supreme Court Rules, 2020 and not any other rules of procedure.
22.
Under the Supreme Court Rules, 2020, the computation of time for any action is provided as:
15. (1)
The computation of time for any action under these Rules shall be in accordance with—
(a)
any timeline provided for under the Constitution;
(b)
section 57 of the Interpretations and General Provisions Act;
(c)
any directions of the Court.
23.
It therefore follows that the applicant ought to have lodged its Notice of Appeal on or before the 4th of January 2021. It did not, and neither has it sought extension of time to file its Notice of Appeal out of time. Consequently, there is no valid Notice of Appeal on record and given the jurisdictional importance of a Notice of Appeal as stated in the Nicholas Salat case, this motion for extension to file an appeal out of time is an act in futility. For even if the Court were to be persuaded, upon consideration of the motion on its merit, and be inclined to extend time for filing of the appeal, there is no foundation (Notice of Appeal) upon which such an appeal would be premised.
G. Orders
24.
Consequently, we make the following Orders:
(i)
The Notice of Motion dated 25th February 2021 is dismissed.
(ii)
The applicant shall bear the costs of this application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/73/eng@2021-07-16
Petition 5 of 2020,"Executive Committee, Kisii County & 2 others v Masosa Construction Limited & another (Petition 5 of 2020) [2021] KESC 47 (KLR) (16 July 2021) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,"Executive Committee, Kisii County & 2 others v Masosa Construction Limited & another",[2021] KESC 47 (KLR)               ,,"A. Introduction
1.
The Petition of Appeal dated 28th April 2020 and filed on 30th April 2020 arises from a Judgment of the Court of Appeal at Kisumu (Makhandia, Kiage & Otieno-Odek, JJA) which upheld the decision of the High Court at Kisii (Karanja J.) delivered on 5th April 2016 in Misc. Application No. 72 of 2015(JR). The High Court had cited the Appellants herein for contempt of Court for failure to comply with an order of mandamus issued by the Court on 10th December 2014 in Misc. Application No. 14 of 2013(JR).
B. Background
2.
On 8th August 2000, the Municipal Council of Kisii (now defunct) and the 1st Respondent herein (Masosa Construction Limited) entered into a contractual works agreement, the terms of which the 1st Respondent was contracted to widen and gravel specific roads within Kisii Municipality. Upon execution of the contract, the 1st Respondent commenced the contractual works and performed its obligations until completion. Subsequently, the Municipal Council of Kisii prepared and issued a final certificate, denoting the total sums payable to the 1st Respondent. A dispute thereafter arose when the Municipal Council of Kisii blatantly failed and/or neglected to pay the amount owing to the 1st Respondent.
3.
In pursuit of its monies, the 1st Respondent decided to file a civil suit — Kisii HCC No. 67 of 2007 — for recovery of the payment for the works done. On 23rd March 2010, Judgment was entered in favour of the 1st Respondent and the High Court (Muchelule J.) ordered the Municipal Council of Kisii to pay a decretal sum of Kshs 15, 556, 986.70. That Judgment notwithstanding, the Municipal Council of Kisii still failed and/or refused to pay the decretal sum.
4.
As a result, the 1st Respondent was constrained to file Miscellaneous Application No. 10 of 2011, to compel the Municipal Council of Kisii to settle the debt. On 12th September 2012, the High Court (Sitati J.) ruled in favour of the 1st Respondent. Pursuant to that Judgment, the Municipal Council of Kisii paid part of the decretal sum leaving an outstanding balance of Kshs 8,464,699.05. Following the promulgation of the Constitution of Kenya in 2010, the Municipal Council of Kisii and all other local authorities were rendered defunct.
5.
In the interim, Kisii County Government, aggrieved by Muchelule J.’s decision, instituted an appeal – Civil Appeal No. 283 of 2011 – which was dismissed on 25th November 2015. The 1st Respondent had also moved the Court vide Miscellaneous Application No. 14 of 2013 (JR) seeking orders for mandamus to compel the Appellants to settle the outstanding amount of Kshs 8,464,699.05. On 10th December 2014, the High Court (Wakiaga J.) issued an order of mandamus against the Appellants compelling them to pay to the 1st Respondent the amount claimed. As a result of the Appellants’ failure to comply with the said orders, the 1st Respondent obtained leave of the High Court at Kisii to institute Miscellaneous Application No. 72 of 2015 (JR) seeking an order that the Appellants herein be cited and punished for contempt of Court for breaching, disregarding and/or ignoring the terms of the court order issued on 10th December 2014.
6.
In the contempt proceedings, the learned Judge (Karanja J.) outlined two issues for determination; first, whether the Appellants were aware of the material order from the time of its issue on 10th December 2014; and secondly, whether they acted in disobedience of the order without justifiable cause. Upon analysis of the evidence, the learned Judge found that the Appellants “were duly served with the necessary order, which was a command they were expected to heed in promoting constitutional values and principles of governance such as rule of law beside upholding the dignity and authority of the Court.” The Court also observed that the Appellants’ inaction, lethargy and neglect in that regard was a deliberate disregard of a valid court order which grossly undermined the dignity of the Court.
7.
In a Ruling delivered on 5th April 2016, the High Court then proceeded to cite the Appellants for contempt and further issued a seven-day period to allow the Appellants time to expunge the contempt, in default thereof a warrant of arrest of the 2nd Appellant was to be issued. It is this order that forms the basis of the subsequent appeals.
8.
Dissatisfied by the Ruling of the High Court, the Appellants thereafter filed Civil Appeal No. 39 of 2016 on 26th May 2016 to the Court of Appeal raising several grounds which the learned Judges of Appeal crystallized into two as follows; whether the learned Judge erred in citing the Appellants for contempt and whether the learned Judge erred in finding that the Appellants were liable to pay the outstanding decretal sum. In a Judgment delivered on 3rd April 2020, the learned Judges of Appeal unanimously found that the Appellants had been in contempt of Court and dismissed the appeal in its entirety.
9.
The Appellate Court, on the issue of contempt, expressed the view that the Appellants, having conceded that they were duly served with the court order, then the issue of personal service could not suffice as a ground of appeal. It was also the learned Judges’ considered view that knowledge of the Judgment or order by a contemnor suffices for contempt proceedings. On the issue of liability, the learned Judges of Appeal held that the obligation of the Appellants to satisfy the decretal sum had already been determined in the previous suits; that is, HCCC. No. 67 of 2007, Misc. Application No. 14 of 2013(JR) as well as Civil Appeal No. 283 of 2011 and as such the issue of liability was not a matter that was relevant in the contempt proceedings.
10.
Aggrieved by the findings of the Court of Appeal, the Appellants filed the instant appeal pursuant to Rules 9 and 33(1)(a) and 2 of the Supreme Court Rules, 2012 (repealed). The Appellants in that regard seek the following reliefs from this Court:
(a)
The Petition of Appeal herein be allowed.
(b)
The Judgment of the Court of Appeal delivered on 3rd April 2020 be set aside and substituted with an Order allowing this Petition of Appeal.
(c)
Costs of this Appeal be granted to the Petitioners and be borne by the Respondent.
11.
In advancing their claim, the Appellants have raised 18 grounds of appeal which can be summarised as follows;
(a)
That the Appellate Court failed to consider that no evidence was adduced to prove that the Appellants willingly, negligently or deliberately refused to comply with a court order;
(b)
That the learned Judges of Appeal failed to appreciate that under Section 6 of the Sixth Schedule of the Constitution, the debt in issue was to be settled by the National Government and not the County Government;
(c)
That the learned Judges erred in confining themselves to only adjudication of whether the court orders were obeyed or not, while failing to consider the compelling circumstances surrounding the case, touching on inability and illegality;
(d)
That the learned Judges erred by failing to grant the Appellants a fair hearing;
(e)
That the learned Judges erred in adopting a constitutional interpretation that occasioned absurdity to constitutional interpretation, enforcement of court orders and functions mandated on the two levels of Government.
12.
The 1st Respondent lodged its Grounds of Objection and a Replying Affidavit to the appeal, both dated 23rd July 2020, on 3rd August 2020 pursuant to Rule 42 of the Supreme Court Rules, 2020. In the aforementioned pleadings, the 1st Respondent is challenging this Court’s jurisdiction to adjudicate upon the instant appeal. The 1st Respondent is also of the view in that regard, that an appeal to this Court in the present circumstances could only lie pursuant to Certification under Article 163(4)(b) as opposed to an appeal as of right under Article 163(4)(a) of the Constitution.
13.
Accordingly, it is the 1st Respondent’s argument that the issues of the constitutional obstacles being alluded to by the Appellants, including the import of Section 6 of the Sixth Schedule of the Constitution, ought to have been ventilated before the Superior Court which dealt with the order of mandamus; thus, it was not the prerogative of the High Court dealing with contempt proceedings to re-visit the legality, propriety and/or validity of the order of mandamus.
14.
The 1st Respondent adds that if the Appellants were keen on lodging an appeal in this Court to interrogate the import of Section 6 of the Sixth Schedule, then certification ought to have been sought from the Court of Appeal. It is also their view that, since no certification was sought or obtained, then the appeal herein is premature, misconceived and as such is devoid of merit. It is therefore urged that the same be struck out or otherwise dismissed.","E. Analysis And Determination
34.
This Court, has in many instances addressed the question of whether this Court’s jurisdiction has been properly invoked under Article 163(4)(a) of the Constitution. And as was rightly pointed on by the 1st Respondent, in the cases of Peter Oduor Ngonge (Supra), Hassan Ali Joho (Supra) and also in the cases of Gatirau Peter Munya v Dickson Mwenda & 2 Others SC Application No. 5 of 2014 [2014] eKLR and Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another SC Petition No. 3 of 2012; [2012], eKLR, this Court has settled that question.
35.
In Lawrence Nduttu (Supra) we were thus categorical that for us to be seized of jurisdiction under that Article;
“
… the appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an Appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4) (a)” [Emphasis supplied].
36.
Also, in Hassan Ali Joho (supra) and Erad Suppliers & General Contractors Ltd v National Cereals & Produce Board SC Petition No.5 of 2012; [2012] eKLR, this Court stated that an appeal lies to this Court under Article 163(4)(a) if the issues placed before it revolved around the interpretation and application of the Constitution, and that the interpretation or application of the Constitution had formed the basis for the determinations at the superior Courts below this Court and the same issue had therefore progressed through the normal appellate mechanism to reach this Court. This was also the position of the Court in the cases of Gatirau Peter Munya (supra) and Hassan Ali Joho (supra) where it was stated that the lower Court’s determination of an issue appealed must have taken a trajectory of constitutional application or interpretation and an appeal within the ambit of Article 163(4)(a) is one founded on cogent issues of constitutional controversy.
37.
Furthermore, this Court, in the case of Rutongot Farm Ltd v Kenya Forest Service & 3 Others SC Petition No. 2 of 2016 [2018] eKLR deduced the questions the Court needs to ask itself in ascertaining whether an appeal raises a question of constitutional interpretation or application and whether the constitutional issue arising has been considered by the Superior Courts resulting in the filing of an appeal before the Supreme Court. It was thus noted that the Court needs to ask itself the following questions:
(i)
What was the question in issue at the High Court and the Court of Appeal?
(ii)
Did the superior Courts dispose of the matter after interpreting or applying the Constitution?
(iii)
Does the instant appeal raise a question of constitutional interpretation or application, which was the subject of judicial determination at the High Court and the Court of Appeal?""
38.
In answering the above questions, on the issue that was before the High Court and the Court of Appeal, it is prudent to examine the history leading to the institution of the case before the High Court. From the pleadings, the 1st Respondent filed before that Court, an application to have the Appellants cited for contempt of Court for failure to satisfy a court order. The court order that the Appellants had failed to comply with was an order of mandamus issued when the 1st Respondent commenced judicial review proceedings against the Appellants, compelling the Appellants to satisfy a decretal sum due to the 1st Respondent for the sum of Kshs. 8,464,699.05/-. The High Court noted in that regard:
“
It is apparent to this Court that no substantial dispute arises with regard to the issuance of the material court order on the 10th December 2014 vide Judicial Review Case No. 14 of 2013 or Kisii High Court Misc. Application No. 14 of 2013 (J.R), where the applicant had sought judicial review orders of mandamus to compel the Respondents to satisfy and/or settle a decree issued in Kisii High Court Civil Case No. 67 of 2007 on the 23rd March 2010 for the sum of Kshs. 8,464,699.05/- in favor of the applicant.”
39.
The High Court further noted that the proceedings leading to the filing of the judicial review application were not of concern in the contempt proceedings by holding as follows;
“
It must be stated herein for purposes of clarity or avoidance of doubt that we are not herein concerned with the previous proceedings between the Applicant and the Respondent or any other party which eventually led to the application for an order of mandamus by the Applicant.”
40.
The High Court therefore went on to only make a determination that the Appellants failed to obey a court order to perform a public duty bestowed upon them. The High Court ultimately cited the Appellants for contempt of Court in failing to offer a reasonable explanation for their disobedience thus triggering the present appeal proceedings.
41.
On its part, the Court of Appeal agreed with the High Court that the appeal filed by the Appellants arose from the alleged contempt of Court and not liability to pay the decretal sum. Makhandia, JA thus pronounced himself as follows;
“
The issue before the learned Judge that gave rise to the instant appeal related to citation for contempt and not liability of the Appellants to satisfy the Judgment or decretal sum.”
42.
As such, the Court of Appeal found that the only issue for determination in the contempt proceedings was whether a court order had been obeyed or not and went on to dismiss the Appellants’ appeal.
43.
It is therefore clear from the record that at no point were the Superior Courts called on to determine any issue involving the interpretation or application of any provision of the Constitution. The dispute, quite plainly, involved the question, whether or not the Appellants were in contempt of court orders and the Superior Courts determined that the Appellants had indeed, disobeyed court orders.
44.
The Appellants, in the face of the above clear position, nonetheless argue that by virtue of Section 6 of the Sixth Schedule of the Constitution, the National Government is the one mandated to pay for liabilities incurred by the defunct local authorities. They point out that at the time the High Court issued the order of mandamus, there had been no transfer of liabilities from the defunct Municipal Council of Kisii to the County Government of Kisii.
45.
By that argument alone, the Appellants urge the misguided point that this Court is now clothed with jurisdiction to determine their appeal. Misguided they are, with respect, because that issue, even if raised before the Superior Courts, did not form the substratum of the contempt proceedings and did not at all require determination by the Superior Court in the manner suggested by the Appellants. Like the Superior Courts below, we are of the view that, litigational ingenuity cannot be used to craft an issue outside the framework of the real dispute between the parties and then expect this Court to seize it and proceed to determine it – See Methodist Church in Kenya v Mohamed Fugicha & 3 Others, SC Petition No.16 of 2016 [2019] eKLR
46.
In conclusion, it is clear to us that no question of constitutional interpretation or application was canvassed before this Court or the Superior Courts. The Appellants have not thus properly invoked the jurisdiction of this Court under Article 163(4)(a) of the Constitution and this Court is therefore not vested with the jurisdiction to hear and determine this appeal.
F. Disposition
47.
Flowing from our findings above, the final orders to be made are as follows:
(i)
The Appeal herein is struck out for want of jurisdiction.
(ii)
As costs follow the event, only the 1st Respondent shall have the costs of the appeal since the 2nd Respondent did not participate in the proceedings, in any meaningful way.
48)
It is so ordered.",Struck out,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/47/eng@2021-07-16
Petition 9 of 2020,Getao v Mokare & 4 others (Petition 9 of 2020) [2021] KESC 36 (KLR) (16 July 2021) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,Getao v Mokare & 4 others,[2021] KESC 36 (KLR)               ,,"Brief facts
The appellant was the administrator of the deceased’s estate, whom it was alleged that at the time of his death, had been in occupation and possession of the suit property. The 3rd respondent was a group ranch comprised of about 519 members and owned about 100,000 hectares in a parcel of land from which the suit property was excised. The Ministry of Lands consented to the dissolution and subdivision of the ranch into equal individual holdings to the registered members. After subdivision, the deceased’s estate was allocated a different parcel of land (the allocated land) and not the originally occupied land. The import therefore was that the appellant and other beneficiaries of the deceased’s estate had to vacate the suit property and relocate to the allocated land.
The appellant and one of his brothers failed to vacate the suit property thereby compelling the 1st respondent to institute a suit at the trial court in a bid to evict them. The appellant claimed that the dissolution of the 3rd respondent was conditioned on the principle that, all the members would be allocated a share of all that parcel occupied at the time of dissolution. It was contended that the 2nd and 3rd respondents contravened that condition and allocated the suit property to the 1st respondent. He therefore claimed that his and the dependents’ fundamental rights to a fair administrative action, to own property, equality and freedom from discrimination had been violated.
The trial court found that the 1st respondent had been lawfully allocated the suit property, ordered the appellant to vacate and deliver the same with vacant possession to the 1st respondent within 90 days of the date of the judgment and in default thereof, be evicted. Aggrieved, the appellant filed an appeal at the Court of Appeal which dismissed the appeal with costs. The appellant was further aggrieved and thus filed the instant appeal.","D. Issues for Determination
36.
Having considered the gist of the appellant’s case, and the submissions of the respective parties, we have determined that only two issues arise for determination in this appeal. These are:
1.
What criterion should determine the sub-division and consequent allocation of land to individual members of a Group Ranch? Is it the Acreage or Value of the Land?
2.
Was the appellant’s Constitutional Right to own land violated by the respondent’s decision to base the sub-division on Acreage as opposed to Value of the Land?
37.
Suffice it to say that the nature of the two issues as couched above, leaves no doubt that this court has jurisdiction to entertain this appeal. Our determination in this regard disposes of the contention by the 4th and 5th respondents to the contrary.
(i) Acreage or Value?
38.
The appellant faults the decision by the respondents, to base the sub-division and consequent allocation of land, to individual members of the Group Ranch on acreage, as opposed to value. This resulted in his relocation from the initially ‘held’ parcel, to a different one which was of a lower value, hence his grievance. The answer to this question lies in the nature of the operative “tenure” and attendant legal regime in “Group Ranches”. The origin and rationale of Group Ranches in Kenya is well documented. In a nutshell, the Land Group Representatives Act (now repealed) was introduced to enable the inhabitants of large swathes of land in largely semi-arid pastoralist areas, to hold such land as a group, under one title. The title would be issued to and held by elected representatives on behalf of the group. Through this instrumentality, the group ranch not only acquired a “corporate character”, but became henceforth legally insulated from the ‘tragedy of the commons’
39.
The group ranch was therefore owned by members of the group, in equal but undivided shares, until such time that each member acquired their individual titles. So what type of tenure is created in these ranches? In the law of property in land, this is what can be characterized as “a community of ownership” (or co-ownership) as opposed to “community or communal ownership”. In the former, each member has an equal share, though undivided, while in the latter, there is no equality of shares. The members derive their security of tenure ‘qua members’ of that community. The nature of that security will also differ depending on the status of the members. Therefore, the type of tenure operative in a group ranch under the Land (Group Representatives) Act, is what is known at common law as “a tenancy in common”, as opposed to “a joint tenancy” (the ingredients of which may be clarified in future litigation). Members of the group ranch are “tenants in common” as opposed to “joint tenants”.
40.
At common law, each co-owner is as much entitled to possession of any part of the land as the others. He cannot point to any part of the land as his own to the exclusion of the others; if he could, there would be separate ownership and not co-ownership. No one co-owner has a better right to the property than another. Tenants in Common hold in undivided shares. Each tenant in common has a distinct share in property which has not yet been divided among the co-tenants. The only fact which brings them into co-ownership is that they both have shares in a single property which has not yet been divided among them. Therefore, while the tenancy in common lasts, no one can say which of them owns any particular parcel of land. (See Megarry and Wade, The Law of Real Property’ 6th Edition Pages 477 and 480).
41.
Applying these principles to the dispute at hand, we cannot see the legal basis upon which the appellant could lay claim to the parcel of land in question, to the exclusion of any other member of the group ranch. For as long as the group ranch remained undivided, his share in the land was equal to the other members of the group. It remained a tenancy in common until each member went their separate ways, having acquired their individual titles. Logically and undeniably therefore, the equality in the undivided shares of a group ranch, can only be based on acreage as opposed to value, for that is what brings its members into “a community of ownership”. Can it be said that a group ranch comes into existence on the basis of its value as opposed to its acreage? Hardly so. The frontiers of a group ranch can only be determined by its acreage as established by a Survey which then maps its boundaries. This explains why the mechanism that is used by the group representatives at the time of sub-division is balloting. Balloting is acreage sensitive but value blind. After sub-division, individual parcels are bound to differ in terms of value, depending on various factors. However, such differences in the value of distinct parcels are a post sub-division phenomenon, and therefore irrelevant to the process.
42.
The answer to the first issue as framed, renders the determination of the second one unnecessary, as it disposes of the gist of the Appeal. For these reasons, we find no difficulty in upholding the Judgment of the Court of Appeal.
E. Orders
(i)
The petition of appeal dated May 18, 2020 is hereby dismissed;
(ii)
The judgment of the Court of Appeal dated December 1, 2017 is hereby upheld;
(iii)
The appellant shall bear the costs of this appeal.
Orders Accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/36/eng@2021-07-16
Application 3 (E005) of 2021,Itolondo v Attorney General & 9 others (Application 3 (E005) of 2021) [2021] KESC 44 (KLR) (16 July 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,Itolondo v Attorney General & 9 others,[2021] KESC 44 (KLR)               ,,"A. Introduction
1.
The Notice of Motion before the Court is dated 17th February 2021 and filed on 23rd February 2021. It is brought under Articles 3, 22, 35, 47, 159, 162, 232 and 258 of the Constitution, Section 15(2) of the Supreme Court Act, Section 39 of the Universities Act, 2012 and Sections 1 and 24 of the Statutory Instruments Act seeking two substantive orders:
a.
That time be extended for admitting a lodged Notice of Appeal dated 1st December 2020 against the decision of the Court of Appeal in Civil Appeal No. 120 of 2019.
b.
That pending the hearing and determination of this application and/or the petition, the Honourable Court be pleased to stay the execution of the Order on costs in Civil Appeal No. 120 of 2019.
2.
The application is anchored on several grounds on the face of the application, the supporting affidavit and supplementary affidavit of the applicant, Wilfrida Itolondo, sworn on 17th and 22nd February 2021, respectively.
3.
On 2nd March 2021, when the matter came up for mention before the Deputy Registrar of this Court, there was no representation on the part of the 1st and 2nd respondents. All respondents were nonetheless directed to file and serve their responses and submissions within seven days. There is still no response filed by the 1st and 2nd respondents on the record.
4.
In opposing the application, the 3rd and 7th respondents have filed: a replying affidavit sworn by Ruth Kirwa, the 3rd respondent’s Legal Officer; a Notice of Preliminary Objection; and written submissions both dated 8th March 2021. On their part, the 4th and 8th respondents have filed a Notice of Preliminary Objection and written submissions both dated 8th March 2021 in opposition to the application. Equally opposing the application are the 5th and 9th respondents vide a replying affidavit sworn by the 9th respondent, Wilson Kipng’eno on 8th March 2021 and written submissions filed on even date. In opposing the application, the 6th and 10th respondents have filed a replying affidavit sworn by Mercylene Njoroge on 9th March 2021 and submissions on even date.
B. Background
5.
This matter can be traced to the Employment and Labour Relations Court (ELRC) Petition No. 66 of 2018, wherein the applicant sought several declaratory and mandatory orders of injunction, to the effect that the respondents violated several Articles of the Constitution in the re-appointment of the Vice Chancellors (VCs) of four Public Universities namely; Technical University of Kenya, Jaramongi Oginga Odinga University, University of Kabianga and Maasai Mara University, the 3rd to 6th respondents, respectively. The applicant also sought the nullification of the re-appointment to office as VCs of the 3rd to 6th respondents on the ground that their appointment to office contravened the Constitution. She further sought a declaration that the provisions of Section 39 (3) of Universities Act, the respective Rules and Regulations contained in the Charter and the Governance Code of State Corporations (Mwongozo) be declared unconstitutional for failing to provide for a competitive re-appointment for the office of VC in public universities.
6.
On 15th February 2019, the Court (M. Onyango J), identified one issue for determination, that is, whether the re-appointments of the 7th to the 10th respondents as VCs of the 3rd to the 6th universities violated Articles 2, 3, 10, 35, 232 and Section 7 of the 6th Schedule of the Constitution, and Section 39 (1) (a) of the Universities Act, 2012. In dismissing the petition, the Judge found that the 7th to the 10th respondents were eligible candidates for re-appointment as per the Universities Act; the issues had been determined by the Court of Appeal in Civil Appeal No. 120 of 2014 which was filed by the applicant; and the process of re-appointments as Vice Chancellors of the respective Universities was properly carried out by the Councils and therefore, did not contravene the Universities Act or statutes.
7.
Aggrieved by the ELRC’s finding, the applicant filed Civil Appeal No. 120 of 2019, Wilfrida Arnodah Itolondo v Attorney General & 9 others raising fifteen (15) grounds which were later summarized into four, namely: whether the learned trial Judge erred in law by holding that there was no proof of violation of Articles 3, 10, 27, 35, 73 and 232 of the Constitution by the 2nd respondent in the re-appointment of the 7th to 10th respondents in office as VCs; whether the re-appointment contravened the Universities Act, and or any other statutes; whether the court was bound by the Court of Appeal decision in Wilfrida Itolondo & 4 Others vs. President and 7 Others [2015] eKLR; and finally, whether the Judge erred by failing to pronounce herself as to whether the provisions of a Circular by the Permanent Secretary/Secretary to the Cabinet and Head of Civil Service dated 23rd November, 2010 was null and void for being inconsistent with the provisions of the Constitution and the Universities Act, on the procedure of appointment of VCs.
8.
On 20th November 2020, the Court of Appeal dismissed the appeal in its entirety. The Court of Appeal in doing so upheld the finding of the trial that the appointment of the 6th to 10th respondents was legal. It also found the issue of re-appointment of VCs res judicata as it had been litigated by the applicant in Wilfrida Itolondo & 4 Others vs. President and 7 Others, CA Civil Appeal No. 120 of 2014 [2015] eKLR. The Court furthermore observed that it was not the intention of the Legislature to provide for a competitive process of re-appointment of VCs under the Universities Act and it thus left any amendments to the Universities Act to be done by the Legislature.","E. Analysis and Determination
30.
The 3rd and 7th respondents as well as the 4th and 8th respondents have separately filed Notices of Preliminary Objection both dated 8th March 2021, disputing this Court’s jurisdiction to entertain the applications as well as the intended appeal as already set out. Of note at this juncture is the objection on the ground that the Notice of Appeal does not disclose the specific Article of the Constitution the intended appeal is anchored on; the application is premised on the Civil Procedure Rules, 2012 as opposed to the Supreme Court Rules rendering the application bad in law and an abuse of the court process.
31.
We note that the other points of objection raised by the 3rd, 4th, 7th and 8th respondents in their preliminary objections touch on the merits of the Notice of Appeal and the intended appeal which is not subject of determination at this point. Consequently, we have considered the Preliminary Objections in the context of the respondent’s opposition to the application.
32.
As to whether this Court should grant an extension of time for the applicant to admit a Notice of Appeal, the applicant submits in the affirmative and blames the Court of Appeal Registry for delaying in lodging her Notice of Appeal and subsequently, lodging and backdating it at her disadvantage. She also blames the Covid-19 pandemic which saw the Court of Appeal limit in-person visits at its offices and encouraged online modes of communication. Conversely, the respondents urge that: in the absence of proof that the Notice of Appeal was lodged late and backdated, it is impossible to consider this argument; that there is no evidence that the applicant followed up the lodging of the Notice of Appeal; and that if time is extended, they will be prejudiced.
33.
Rule 15(2) of the Supreme Court Rules, 2020 grants this Court the discretion to extend the time limited by the Rules or any decision of the Court.
33.
Under Rule 36(1) of the Supreme Court Rules, 2020 a Notice of Appeal shall be filed within 14 days from the date of judgment or ruling which is subject of appeal. It is the responsibility of the appellant to transmit a copy of the Notice of Appeal to the Registrar of the Supreme Court and serve, within seven days, the transmitted copies of the Notice upon all persons affected by the appeal.
34.
According to Rule 38(1) of the Supreme Court Rules, 2020, a petition to the Court shall be filed within thirty days of the date of filing the Notice of Appeal, where the appeal is as of right. In that regard, the applicant ought to have filed her petition of appeal and record of appeal by 30th December 2020.
35.
This Court has set the guiding principles on extension of time in the Nick Salat Case as follows:
“
… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.
“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:
1.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;
2.
a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3.
whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;
4.
where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;
5.
whether there will be any prejudice suffered by the respondents, if extension is granted;
6.
whether the application has been brought without undue delay; and
7.
whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
36.
Further, this Court has emphasized the need for the Applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court in the case of County Executive of Kisumu Case.
37.
In the present case, the judgment of the Court of Appeal was delivered on 20th November 2020. Consequently, the Notice of Appeal ought to have been filed and transmitted to this Court by 4th December 2020 being the fourteenth day from the date of judgment under Rule 36. Having perused the record, it is clear to us that the applicant’s Notice of Appeal was filed on 1st December 2020 and lodged on even date. This therefore implies that the Notice of Appeal was filed on time. However, the same was not be transmitted to this Court within the above timelines.
38.
Although the applicant has attributed the delay to file the appeal and transmit the Notice of Appeal on time to the officer responsible for lodging documents at the Court of Appeal, she has not annexed an affidavit from the said process server to enable us to validate her justification for the delay. The applicant has also failed to validate the delay in bringing the present application from the date she realized that the time for instituting the appeal and forwarding the Notice of Appeal to this Court had lapsed. Consequently, it is our unanimous finding that the applicant has failed to meet the criteria set by this Court for extension of time.
39.
On the second issue, whether Petition No. E004 of 2021 is proper to justify a stay of the Court of Appeal’s order on costs, the applicant submits that she filed Petition No. E004 of 2021 on 11th February 2021, being the last day from the date she received the lodged Notice of Appeal. As found above, the last filing date for the petition before this Court was 30th December 2020. The effect of this finding is that the Petition No. E004 of 2021 is null and void for being filed out of time and without leave hence, struck out. Therefore, in the absence of a substantive appeal on record, we are unable to grant the orders of stay of execution of the Order on costs in Civil Appeal No.120 as sought.
40.
Ultimately, we find that the application herein lacks merit and is hereby dismissed. As this ruling effectively brings to an end the proceedings before this Court, we do not see any need to extend the dispute to the limited question of costs. Accordingly, each party to bear its own costs
F. Orders
41.
The final orders are as follows:
i.
The Notice of Motion dated 17th February 2021 and filed on 23rd February 2021 is hereby dismissed.
ii.
Petition No. E004 of 2021 filed electronically on 11th February 2021 is hereby struck out for being filed out of time.
iii.
Each party to bear its own costs.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/44/eng@2021-07-16
Petition 38 of 2019,Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019) [2021] KESC 32 (KLR) (16 July 2021) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,Jirongo v Soy Developers Ltd & 9 others,[2021] KESC 32 (KLR)               ,,"Brief facts
Pursuant to a sale agreement between the appellant and the 2nd and 3rd respondents and upon payment of the deposit, the original company registration documents of the 1st respondent company and the title deed of the suit property were released to the appellant. The appellant on October 21, 1992, charged the suit property to Post Bank Credit Limited for a sum of Kshs 50 million. The appellant contended that the charge was executed by himself and his partner. The suit property was eventually discharged from all encumbrances and transferred to the 10th respondent.
On or about the year 2015, the 2nd and 3rd respondents alleged that the appellant, while fraudulently holding himself as a director of the 1st respondent, executed a charge in favour of Post Bank Credit Ltd which he used to secure an overdraft facility for the appellant’s company, M/s Cyperr Projects International Ltd. The 1st respondent thus instituted a suit over the alleged fraudulent transfer of the suit property. A complaint was later lodged to the 6th respondent, the Directorate of Criminal Investigation (DCI) requesting them to investigate the alleged fraud. Pursuant to the recommendation by the DCI, the 5th respondent, the Director of Public Prosecutions (DPP), on February 9, 2016, instituted criminal proceedings against the appellant at the Chief Magistrates’ Court.
Aggrieved, the appellant moved the High Court seeking among other orders an order to quash the decision of the DPP to charge and institute criminal proceedings against the appellant. It was the appellant’s case that the preferred charges were among other allegations an abuse of the court process and constituted an illegal exercise of discretion. Further, due to the 24-year delay in instituting the prosecution, the appellant claimed that his fundamental rights and freedoms had been infringed. The High Court allowed the appellant’s application and granted the orders sought. Aggrieved, the 1st, 2nd, 3rd, 4th, 5th, and 6th respondents lodged two appeals at the Court of Appeal which allowed the appeals and set aside the judgment of the High Court. Aggrieved, the appellant filed the instant appeal.","D. Analysis and Determination
44.
Having considered the respective parties’ pleadings and submissions in the instant Petition, this court is of the considered view that the issues arising for determination are;
(a)
Whether there is a right of appeal to this court following the decision of the Court of Appeal under article 163(4)(a) of the Constitution;
(b)
Whether the inordinate delay in instituting the intended prosecution of the appellant would infringe his rights and freedoms under articles 19,20,27 and 50 of the Constitution;
(c)
Whether the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the Director of Public Prosecutions contrary to article 157 of the Constitution; and
(d)
What are the appropriate reliefs?
We shall determine each issue separately as here below:
(a) Whether there is a right of appeal to this Court following the decision of the Court of Appeal under Article 163(4)(a) of the Constitution
45.
The appellant argues that this court has the jurisdiction to determine the appeal under article 163(4)(a) of the Constitution, which allows appeals as a matter of right, in cases involving the interpretation or application of the Constitution. He maintains that the main issue for determination is whether his right to a fair trial was infringed due to, inter alia, the delay in instituting criminal proceedings. The 5th, 6th and 7th respondents concur that this court does have the jurisdiction to entertain the appeal as the appellant is challenging the interpretation and application of articles 50 and 157 of the Constitution. The 1st, 2nd and 3rd respondents however take a contrary view, arguing that though this court has appellate jurisdiction, the appellant has wrongly invoked it.
46.
Article 163(4)(a) states as follows on the appellate jurisdiction of this court:
4.
Appeals shall lie from the Court of Appeal to the Supreme Court –
(a)
As of right in any case involving the interpretation or application of this Constitution; and
(b)
In any other case in which the Supreme Court, or Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)
5.
A certification by the Court of Appeal under clause (4)(b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.”
47.
This court has on many decisions, pronounced itself on its jurisdiction to determine appeals under the said Article 163(4)(a) of the Constitution. In the case of Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another SC Petition No. 3 of 2012; [2012] eKLR, a two-Judge Bench of this court (Tunoi and Wanjala SCJJ) remarked that [paragraph 28];
“The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitutionwhich the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a).”
48.
Further, in the case of Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013, this court settled the applicable test on the jurisdiction of this court in the handling of article 163(4)(a) appeals by holding thus:
37:
“In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the superior courts and has progressed through the normal appellate mechanism so as to reach this court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution” [Emphasis added].
49.
Therefore, for us to determine whether the present appeal is properly before us, we must confirm that issues of constitutional interpretation and application presented before us have risen through the normal appellate process before reaching us.
50
In that context, a perusal of the record and the determinations by the two superior courts below would lead to only one inescapable conclusion; the issues canvassed before them related to an interpretation and application of the Constitution with regards to the appellant’s main claim that he was being subjected to an unfair criminal trial contrary to article 50 of the Constitution as well as alleged bias and abuse of power by the DPP contrary to the mandate conferred by article 157 ofthe the Constitution. Those issues are squarely before us, having been the subject of the determinations by the superior courts below and without saying more, and following our prior decisions cited above, we hold and find that we have been properly moved under article 163(4)(a) to determine the present appeal.
(b) Whether the inordinate delay in instituting the intended prosecution of the appellant would infringe his rights and freedoms under Articles 19, 20, 27 and 50 of the Constitution
51.
The appellant claims that the events surrounding the sale transaction of the suit property, which is the basis of indictment and institution of fraud charges against him took place 24 years before the criminal proceedings were initiated. The appellant thus claims that his constitutional rights founded on the right to equality before the law and the right to equal protection and equal benefit of the law provided for under article 27(1) of the Constitution and the right to a fair trial provided for under article 50 of the Constitution were violated.
i) Reason for the delay
52.
The 5th, 6th and 7th respondents insist that the reason for the delay was that land registry file on the suit property was missing at the Lands registry hence the complaint against the appellant was lodged only when the file was found in 2015.
They also insist that there is no limitation period for instituting criminal proceedings and maintain that the appellant does not stand to suffer any prejudice if his prosecution proceeds.
53.
The 1st, 2nd and 3rd respondents on their part deny that the appellant’s imminent prosecution violated his right to a fair trial arguing that article 50 of the Constitution had inbuilt mechanisms to protect this right; that the delay was explained and the appellant did not stand to be prejudiced as he had all the evidence to rebut the allegations and all the relevant witnesses were also available. They reiterate that delay is not a defence to stop any criminal prosecution.
54.
The High Court, while addressing the issue of delay, where a complainant lodges a complaint after a long period of time vis-a-vis its implication on an accused person’s right to a fair hearing held as follows:
140.
Where a person against whom wrongdoing has been allegedly committed takes an inordinately long period of time before lodging his complaint with the police and as a result of which crucial evidence is lost and or witnesses become unavailable, to subject the applicant to a process of prosecution will amount to nothing but persecution. This is not to say that the applicant is in such circumstances innocent. It is simply a recognition that the criminal process must be conducted in an atmosphere of fairness to both the accused person and the complainant and where the right to a fair hearing has been jeopardised by the long delay in the commencement of the criminal process thus placing the applicant’s rights into jeopardy, such a process must not be permitted to continue.”
55.
The Court of Appeal on its part, and to the contrary, found that the respondents had submitted evidence that showed that all the relevant witnesses are alive and that the relevant documentation and the Land Registry file on the suit property are available. The Court thus found that the appellant did not stand to be prejudiced if he is given an opportunity to defend himself and found the reason for delay issued by the respondents in the institution of the criminal proceedings as satisfactory to them.
ii) Was the delay inordinate and was the appellant’s right to a fair trial infringed?
56.
The question of delay with respect to the lodging of criminal prosecutions has been addressed by our courts in several matters. The leading persuasive decisions on the subject are the High Court cases of Githunguri v Republic (1986) KLR 1 and Republic v Attorney General & another ex parte Ng’eny (2001) KLR 612 which both Superior Courts relied on.
57.
In Githunguri v Republic (supra), the court stated as follows:
“In this instance the delay is said to have been nine years, six years and four years. The court has not been told why these offences have been unearthed after they remained buried for so long. What caused turning up the soil! It is too long, too much of delay. The Attorney-General is not bound to tell the court the reason but it would have made us knowledgeable if told.
We are of the opinion that to charge the applicant four years after it was decided by the Attorney-General of the day not to prosecute, and thereafter also by neither of the two successors in office, it not being claimed that any fresh evidence has become available thereafter, it can in no way be said that the hearing of the case by the court will be within a reasonable time as required by section 77(1). The delay is so inordinate as to make the non-action for four years inexcusable in particular because this was not a case of no significance, and the file of the case must always have been available in the Chambers of the Attorney-General. It was a case which had received notable publicity, and the matter was considered important enough to be raised in the National Assembly.
We are of the opinion that two indefeasible reasons make it imperative that this application must succeed. First as a consequence of what has transpired and also being led to believe that there would be no prosecution the applicant may well have destroyed or lost the evidence in his favour. Secondly, in the absence of any fresh evidence, the right to change the decision to prosecute has been lost in this case, the applicant having been publicly informed that he will not be prosecuted and property restored to him. It is for these reasons that the applicant will not receive a square deal as explained and envisaged in section 77(1) of the Constitution. This prosecution will therefore be an abuse of the process of the Court, oppressive and vexatious.”
58.
Similarly in the case of Republic v Attorney General & another ex parte Ngeny (2001) KLR 612, the court addressed this question and stated that:
“In the case before us, the delay was nine years. No attempt has been made to explain it. The subject matter of the charges against the applicant is a colossal sum involving an institution that was strategic to the Government when the losses were occasioned; so why did the State not mount a prosecution immediately? Nine years is too long a delay. We cannot think anything else but that the criminal prosecution against the applicant was motivated by some ulterior motive. It is not a fair prosecution. It was mounted quite late: Nine years after the applicant had vacated the relevant public office alleged to have been abused. We were told, and this was not challenged, that having been out of office for that long, he does not have in his possession material to prepare his defence. This we believe. We are of the view that to allow delayed prosecutions is akin to putting a noose around the necks of individuals and then saying to them: 'Go, you may go. We shall decide your fate as and when we wish.' This is to keep the individual in fear. This does not accord with constitutional guarantees of individual rights and freedoms and is nothing more than an abuse of the process of the court”.
59.
The argument put forth by the appellant is that his right to be tried within a reasonable period of time has been infringed in view of the fact that it has taken 24 years for him to be prosecuted. The appellant cites the various hurdles to the impending trial that will result in him not having a fair trial; the missing Land Registry file as well as the loss of vital documentary evidence.
60.
The appellant also contends that as a result of the long delay before the charges were instituted, his defense has been compromised since the documents involved in the company registration and transfer of shares, which allowed for the registration of the charges against the 1st respondent company as regards the suit property, including the company forms required for effecting change at the Registry of Companies, are missing.
61.
The appellant thus argues that he stands to suffer prejudice due to the long period of time that has lapsed since the events surrounding the sale of the suit property, occurred between 1991 and 1993.
62.
In addressing this issue, we note that in the case of George Joshua Okungu & another v The Chief Magistrate’s Court Anti-Corruption Court at Nairobi & another (supra), the High Court persuasively held that:
“.....it is not mere delay in preferring the charges that would warrant the halting of the criminal proceedings. Rather, it is the effect of the delay that determines whether or not the proceedings are to be halted. In this case, there is no allegation made by the petitioners to the effect that the delay has adversely affected their ability to defend themselves. In other words, the Petitioners have to show that the delay has contravened their legitimate expectations to fair trial.”
63.
In that regard, the right to fair hearing is provided under article 50(1) of the Constitution which provides:
“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” [Emphasis supplied]
64
The rights of an accused person are then set out in article 50(2) of the Constitution which specifically provides that an accused person must be accorded a fair trial without delay. The said article provides that:
""(2)
Every accused person has the right to a fair trial which includes the right-(e)to have the trial begin and conclude without unreasonable delay.”
65.
This court in the case of Hon. Christopher Odhiambo Karan v David Ouma Ocheing & 2 others [2018] SC Petition No 36 of 2019 had an opportunity to discuss the significance, distinctive meaning, scope and implication of the right to a fair trial and stated that “It is therefore settled law that all persons who come to any court are entitled to a fair hearing whether the matter instituted is criminal or civil in nature. In this context, the drafters of the Constitution 2010 in article 25(c) placed a bar on limitation of the right to a fair trial, in civil and criminal matters.”
66.
It is in the above regard trite that there is no limitation of time to institute and prosecute criminal offences but as stated in Githunguri, where the delay has the effect of denying a suspect the legal tools to mount a credible defence, then the High Court is properly mandated by the Constitution to step in and stop the intended prosecution.
67.
Similarly, where the delay was occasioned by deliberate inaction on the part of a complainant with the intent of getting at a suspect to force the suspect’s hand in say, a different transaction between them at a later date or even use the complaint to force settlement in ongoing civil proceedings, then, again the High Court, as a court of first instance, must step in because the intended prosecution is tainted with malice and not the otherwise unassailable intent to furnish criminal wrong doing, promptly.
68.
Furthermore, both articles 49(1)(a)(ii) and 50(1) and (2)(e) of the Constitutionexpect that in resolution of disputes, fairness must necessarily include the promptness of action and the inhibition against unreasonable delay. What is reasonable, it is now settled, includes both the reason for delay and the period of delay.
69.
In the present case, all the evidence before us points to the fact that the documentation necessary to prove the alleged fraud may no longer be available and we agree with the learned Judge of the High Court that, where both parties have admitted that the same issues are also pending resolution in another court, and that the issue of lost documentation remains unresolved, it would be most unfair to subject the appellant to a criminal trial, 24 years after the impugned transaction.
70.
What of the fact that it is admitted that the 2nd and 3rd respondents indeed received part purchase price for purchase of the suit property? Why would it take them 24 years to decide that they were now entitled to the balance thereof as well as return of the title documents? Our position is that such a delay and use of the criminal process to force the hand of the appellant fatally taints the fairness of the resultant prosecution.
71.
Lastly, in instituting the prosecution, the ODPP, without in any way taking away the constitutional mandate to prosecute crimes, ought always to act judiciously and not act in perpetuation of an unfair and malicious criminal complaint. In doing so, that office must always be guided by the principle that the right to a fair trial cannot be limited thus raising the bar in the determination of the question whether to prosecute or not.
72.
It is therefore our finding, and in agreement with the learned Judge of the High Court that, the prosecution of the appellant is in breach of his right to a fair trial as protected by article 25(c) as read with article 50 of the Constitution and we have stated why.
iii) Are the Proceedings More of a Criminal or Civil Nature?
73.
The above question is pertinent and must be addressed as a corollary to the issues we have determined above. In that context, the appellant claims that he purchased lawfully all shares in the 1st respondent’s company and eventuallybecame a director and shareholder. the 2nd and 3rd respondents on the other hand maintain that there has never been any change of the directorship or shareholding of the 1st respondent, claiming instead that they have always been its sole directors and shareholders. It is evident therefore that the main issue in contention involves the company registration forms of the 1st respondent company as well as the alleged change of its ownership.
74.
The question whether a complainant can pursue both civil and criminal proceedings at the same time is not a new one in our realm. In the present case, it is admitted that the 2nd and 3rd respondents have instituted Civil suit No 132 of 2015 at the ELC and one of the claims made therein is that title documents for the suit property have been lost.
75.
The appellant has however argued that the 2nd and 3rd respondents then instituted his prosecution on alleged fraud charges and unlawful use of the title documents to obtain credit whilst also claiming that the same documents had been lost thus pointing to malice in his prosecution. What is the law in such a situation?
76.
The Court of Appeal persuasively stated in the case of Commissioner of Police & the Director of Criminal Investigation Department & another v Kenya Commercial Bank & 4 others [2013] eKLR that:
“Clearly, the company and the guarantor through their directors were employing criminal process to assist them in resolving their civil dispute. While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that that power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings? It is not in the public interest or in the interest of the administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and a travesty of justice for the police to be involved in the settlement of what is purely a civil dispute being litigated in court. This is a case more suitable for determination in the civil court where it has been since 1992, than in a criminal court. Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations. We have no doubt in our minds that the belated involvement of the police in this purely civil dispute is an abuse of their power. The police should direct their energies and resources to prevention of crime which we all know is rampant in this country and is about to get out of control.”
77.
We respectfully agree and adopt this position in this case but must add that where it is obvious to a court, as it is to us and was to the learned Judge of the High Court, that a prosecution is being mounted to aid proof of matters before a civil court or where the hand of a suspect is being forced by the sword of criminal proceedings to compromise pending civil proceedings, then section 193A of the Criminal Procedure Code cannot be invoked to aid that unlawful course of action. Criminal proceedings, whether accompanied by civil proceedings or not, cannot and should never be used in the manner that the 2nd and 3rd respondents have done. It is indeed advisable for parties to pursue civil proceedings initially and with firm findings by the civil court on any alleged fraud, proceed to institute criminal proceedings to bring any culprit to book. In addition, we shall, later in this Judgment, express ourselves on the criteria to be used by the High Court before terminating any criminal prosecution.
78.
Having so said, we have already expressed ourselves on the right to fair trial and we must now make a finding that, in the unique circumstances of the present case, the institution of civil proceedings, simultaneously with criminal proceedings, claiming on one hand that title documents had been lost, while in another, claiming that they were in the possession of the appellant and his banks or a third party, ASL Ltd, the 10th respondent, is indeed an expression of mischief and dishonesty. This or another court should never countenance such conduct for it brings the entire criminal justice into disrepute.
c) Whether the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP contrary to the Constitution
79.
The High Court in its finding, prohibited the respondents from proceeding with any criminal proceedings against the appellant in relation to the suit property or any subject matter and transaction connected to the suit property. The Court of Appeal reversed this judgment by holding that the High Court had interfered with the discretion given to the Director of Public Prosecutions (DPP) to initiate and conduct prosecution. Essentially, the Court of Appeal found that the High Court went against public interest in preventing investigation and prosecution of allegations relating to fraudulent transfer and acquisition of the suit property and that the learned Judge interfered with the prosecutorial mandate of the DPP to decide on whether to charge or not to charge an individual.
80.
The 5th, 6th and 7th respondents on their part, maintain the position that the decision to commence investigations against the appellant was consistent with the provisions of article 157 of the Constitution and section 6 of the Office of Director of Public Prosecutions Act. They also submitted that the decision to institute criminal proceedings by the DPP is discretionary and that such exercise of power is not subject to the direction or control by any authority as provided for under article 157(10) of the Constitution.
81.
Under article 157(6) of the Constitution, the DPP is mandated to institute and undertake criminal proceedings against any person before any court. Article 157(6) provides as follows:
(6)
The Director of Public Prosecutions shall exercise State powers of prosecution and may-
(a)
institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.”
Article 157(4) provides that:
(4)
The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.”
However, Article 157(11) stipulates that:
(11)
In exercising the powers conferred by this article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”
82.
Although the DPP is thus not bound by any directions, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of article 157(11) have not been met, then the High Court under article 165(3)(d)(ii) can properly interrogate any question arising therefrom and make appropriate orders.
83.
In that regard, the Court of Appeal in the case of Commissioner of Police & Another v Kenya Commercial Bank Ltd & 4 others [2013] eKLR persuasively found that the High Court can stop a process that may lead to abuse of power and held that :
“Whereas there can be no doubt that the field of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law. That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations to be complete and the suspect charged.
By the same token and in terms of article 157(11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution. See Githunguri v Republic [1985] LLR 3090.
It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. See Ndarua v R[2002] 1EA 205. See also Kuria & 3 others v Attorney General [2002] 2KLR.” (Emphasis supplied)
84.
Furthermore, the Supreme Court of India in RP Kapur v State of Punjab AIR 1960 SC 866 laid down guidelines to be considered by the court on when the High Court may review prosecutorial powers. They are as follows:
(I)
Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; or
(II)
Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, eg want of sanction; or
(III)
Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; or
(IV)
Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.
85.
We are persuaded that this is a good guide in the interrogation of alleged abuse of prosecutorial powers and read alongside article 157(11) of the Constitution, we have sufficiently expressed ourselves elsewhere in this Judgment to show that the unconstitutional continuance of the criminal proceedings against the appellant amounts to abuse of court process and that, balancing the scales of justice, the weight would favour the appellant and not the respondents.
86.
On public interest, what is in issue is a dispute arising from a commercial transaction 24 years ago where the complainants have not denied receiving part payment of the purchase price. There is hardly any public interest element in such a transaction save the wide interest of the law to apprehend criminals.
87.
The learned judge of the High Court, in our view, was well within his mandate under article 165(3)(d)(ii) as read with article 157(11) of the Constitution to curtail the appellant’s prosecution and the DPP’S powers have not in any way been interfered with, outside the constitutional mandate conferred on the High Court.
E. Conclusion
88.
Having held as above, we are of the opinion that the Court of Appeal erred in setting aside the decision of the learned judge of the High Court and we have affirmed the latter decision in all its facets. What of costs? Costs follow the event and so the appellant shall have the costs in this court, the Court of Appeal and the High Court as against the 1st, 2nd and 3rd respondents only.
F. Disposition
89.
The final orders to be made are as follows:
(a)
The entire Judgment of the Court of Appeal sitting at Nairobi delivered on July 19, 2019 in Nairobi Civil Appeal No 43 of 2017 and Civil Appeal No 48 of 2018 be set aside and the judgment and orders of the High Court in Miscellaneous Application No 78 of 2016 delivered by Honourable Mr Justice Odunga on January 11, 2017 be reaffirmed.
(b)
The costs of this appeal and costs of proceedings in this court, the Court of Appeal and in the High Court be awarded to the appellant herein in any event as against the 1st, 2nd and 3rd respondents only.
90.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/32/eng@2021-07-16
Petition (Application) 11 of 2020,JOO v MBO; Federation of Women Lawyers (Intended Interested Party); Law Society of Kenya & 3 others (Intended Amicus Curiae) (Petition (Application) 11 of 2020) [2021] KESC 48 (KLR) (16 July 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,JOO v MBO; Federation of Women Lawyers (Intended Interested Party); Law Society of Kenya & 3 others,[2021] KESC 48 (KLR)               ,,"Brief facts
Before the Court were three applications seeking enjoinment in the matter. The first application, seeking enjoinment as an Interested Party was filed by the Federation of Women Lawyers (FIDA Kenya), and was anchored on Rules 24 and 31 of the Supreme Court Rules, 2020, while the second application, seeking enjoinment as amicus curiae was filed by the Law Society of Kenya (LSK), and was grounded in Rules 19 and 31 of the Supreme Court Rules, 2020. The third application sought to enjoin the Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN), Initiative for Strategic Litigation in Africa (ISLA), and Human Rights Watch (HRW) as amici curiae.
FIDA Kenya submitted that it sought to assist the Court in interpreting Article 45(3) of the Constitution, arguing that it envisaged equality in matrimonial property distribution. FIDA Kenya further proposed to provide comparative jurisprudence and insights from international legal instruments ratified by Kenya to support their argument for a 50:50 distribution matrix.
The LSK submitted that it had substantial expertise in constitutional and family law and aimed to assist the Court in interpreting the Constitution by providing relevant legal perspectives and comparative foreign jurisprudence. The LSK underscored its independence, impartiality, and lack of connection to either party.
The third set of applicants argued that they met the criteria for enjoinment as amici curiae based on their proven expertise in advocating for women's rights, land, and property rights, and their prior participation as amici in similar matters before Kenyan courts. All applicants emphasized that their contributions would provide neutral, relevant, and informed perspectives essential to the Court’s determination of the issues at hand.","C. Orders
23.
Having stated as above, we shall exercise discretion and make the following Orders:
(i)
The application by the intended interested party, Federation of Women Lawyers (FIDA Kenya) is partly disallowed to the extent that they seek to be enjoined as interested party.
(ii)
The Federation of Women Lawyers (FIDA Kenya), the intended interested party is hereby enjoined as 1st amicus curiae.
(iii)
The application by the Law Society of Kenya is allowed and the applicant is hereby admitted as the 2nd amicus curiae.
(iv)
The application by KELIN, ISLA and HRW as intended amici curiae is dismissed.
(v)
Participation by the enjoined parties shall be limited to the filing of written submissions.
(vi)
There shall be no Orders as to costs.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/48/eng@2021-07-16
Application 2 (E004 of 2021) of 2021,Kenya Hotel Properties Limited v Attorney General & 5 others (Application 2 (E004 of 2021) of 2021) [2021] KESC 49 (KLR) (Civ) (16 July 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,Kenya Hotel Properties Limited v Attorney General & 5 others,[2021] KESC 49 (KLR)               ,,"A. INTRODUCTION
1.
Before the Court is a Notice of Motion dated 17th February 2021 and filed on 18th February 2021, pursuant to Rules 3(5) and 15 of the Supreme Court Rules, 2020. The application seeks the following orders:
a.
That leave be granted to the applicant to extend time to file its Supplementary Record of Appeal out of time.
b.
That the Supplementary Record of Appeal dated 8th February 2021 and filed on 9th February 2021 be deemed as duly and properly filed.
c.
That the costs of and incidental to this application abide the result of the appeal.
2.
The application is supported by an affidavit sworn on 17th February 2021 by Allen Waiyaki Gichuhi, advocate for the applicant.
3.
The Applicant filed a petition of appeal, being Petition No. 16 of 2020 dated 28th August 2020, seeking to set aside the judgment of the Court of Appeal at Nairobi (Makhandia, Kiage & Murgor, JJA) delivered on 7th August 2020, in Civil Appeal No. 404 of 2018.
B. BACKGROUND
4.
Willesden Investment Ltd, the 4th respondent, who was at all material times the registered proprietor of L.R. No. 209/12748 IR No. 66986 from 15th September 1995, filed HCCC No. 367 of 2000 against the Kenya Hotel Properties Ltd (the applicant), seeking damages for trespass to property and mesne profits arising from the applicant’s use of the said property as a parking lot. The applicant had been using the property having leased it from the Nairobi City Council prior to the 4th respondent’s registration as proprietor. The High Court, by its judgment dated 14th December 2006, awarded the 4th respondent Kshs. 54,102,400 in mesne profits; Kshs. 10,000,000 in general damages for trespass, Kshs. 6,000,000 for loss of business opportunity together with interest and costs.
5.
Dissatisfied, the applicant appealed to the Court of Appeal in Civil Appeal No. 149 of 2007 against the 4th respondent and by a judgment delivered on 2nd April 2009, that award was reduced to Kshs. 22,729, 800 with interest at court rates from January 1994 to the date of payment. Dissatisfied further, the applicant filed a review application before the Court of Appeal. The appellate Court (O’Kubasu, Onyango-Otieno and Aganyanya, JJ. A) delivered its ruling on that application effecting one correction, that interest at court rates be calculated from 15th September 1995, but otherwise dismissing the appeal with costs.
6.
Later, the applicant’s advocate filed a complaint before the Judges and Magistrates Vetting Board, the 3rd respondent, against O’Kubasu J.A over his conduct in Civil Appeal No. 149 of 2007. The 3rd respondent, by its decision issued on 25th April 2012, decided that O’Kubasu JA was not suitable to hold the position of a judge because the judgment therein, principally authored by him; in its opinion contained various anomalies on whether arguments made on behalf the applicant there had been considered, the basis on which damages were computed and the manner in which interest was calculated. O’Kubasu J.A filed an application for review of that decision, but the same was dismissed on 20th July 2012, and so he stood removed.
7.
Subsequently, on 16th October 2015, the applicant filed High Court Constitutional Petition No. 438 of 2015, seeking several orders namely: that the Court of Appeal’s decision in Civil Appeal No. 149 of 2007 was a nullity and should have been set aside; a declaration that the applicant’s right to fair hearing was infringed by the bias shown by the presiding judge in Civil Appeal No. 149 of 2007; a declaration that the Court of Appeal’s judgment could not stand following the removal of the Judge by the 3rd respondent; an order of certiorari to quash that judgment; an order directing that the appeal arising from the judgment of the High Court in HCCC No. 367 of 2000 be heard de novo; and a permanent injunction restraining the 1st and 4th respondents from executing the decree in HCCC No. 376 of 2000. On 28th September 2018, the High Court (Mwita J) dismissed the petition for failing to meet the threshold for an application for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom as contemplated under Article 23(1) of the Constitution.
8.
Aggrieved by that decision, the applicant filed Civil Appeal No. 404 of 2018 Kenya Hotel Properties Limited v Attorney General & 5 others on the grounds that the learned Judge erred in law by: restricting himself to one issue for determination concerning jurisdiction; failing to apply the spirit in Articles 10 and 259 of the Constitution to advance the rule of law, fundamental freedoms, equity, social justice and equity and a miscarriage of justice; failing to consider the purpose of Section 23(1) of the 6th Schedule to the Constitution; failing to consider that the Judgment in Civil Appeal No. 149 of 2007 could not stand after O’Kubasu JA’s removal and set it aside; failing to consider that judicial bias undermined confidence in the Judiciary and infringed the right to fair trial under Article 50, an unlimited right under Article 25 of the Constitution and that the High Court had jurisdiction; and failing to correctly apply the Supreme Court’s dicta in the case of Jasbir Rai & 3 others vs. Tarlochan Singh Rai (Estate Of) & 4 Others [2013] eKLR. The applicant also filed an application for review in Civil Appeal No.149 of 2007 which the appellate court heard together with Civil Appeal No. 404 of 2018. On 7th August 2020, the Court of Appeal (Makhandia, Kiage & Murgor, JJA) dismissed both the appeal and the application for review for lack of merit.","D. ISSUE FOR DETERMINATION
14.
Having perused the pleadings of the parties there is only one issue for determination, namely, whether this Court should grant an extension of time for the applicant to file a Supplementary Record of Appeal? If so, should the Court deem the filed Supplementary Record as properly filed?
E. ANALYSIS
15.
Under Rule 15(2) of the Supreme Court Rules, 2020, this Court has the discretion to extend the time limited by the Rules or by any decision of the Court.
16.
The applicant has urged that he was not able to file the certified order and typed proceedings from the Court of Appeal within the stipulated timelines, that is, 30 days from the filing of the Notice of Appeal, due to a delay occasioned by the Court of Appeal in issuing the same. It submits further that the same was filed on 9th February 2021, within five days of receipt of the same and that no prejudice will be occasioned to the respondents. More so, it maintains that the issues raised in Petition No. 16 of 2020 are of general public importance and therefore, the application should be allowed.
17.
Having considered this Court’s finding in Nicholas Kiptoo Korir Arap Salat v. Independent Electoral and Boundaries Commission & 7 Others , SC Application No. 16 of 2014; [2014] eKLR (the Nick Salat Case) and Hassan Nyanje Charo v Khatib Mwashetani & 3 Others SC Application No. 15 of 2014; [2014] eKLR, the applicant’s grounds in support of the application and its submissions dated 17th February 2021, we are satisfied that the applicant has provided a plausible and reasonable explanation for the delay in filing the Supplementary Record. We are equally satisfied that the delay in the circumstances was not inordinate. In addition, we note that the documents sought to be introduced through the Supplementary Record of Appeal are not prejudicial to any of the respondents and are considered necessary by the applicant. Consequently, we are inclined to extend time for the applicant to file its Supplementary Record.
18.
As to whether we should deem the filed Supplementary Record of Appeal as proper before us, our position, as held in the Nick Salat Case, is that the appropriate remedy for curing a delay in filing an appeal is to seek an Order from the Court, extending the time within which to file the same. In County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR, this Court found that an appeal filed out of time without leave of this Court is irregular and this Court will not invoke ‘novel’ principles so as to validate such a petition and deem it properly filed. The applicant has not demonstrated why we should depart from the said principles. Be it as it may, we have perused the record and noted that the said Supplementary Record, although electronically filed, did not comply with the filing procedures provided for under Rule 12(1) of the Supreme Court Rules, 2020 which state that filing is complete when a party submits both printed and electronic form. Therefore, for our purpose, the said Supplementary Record is not properly filed. Further, even if the same were filed in compliance with Rule 12(1), the same was invalid for having been filed out of time.
F. ORDERS
19.
Having made the foregoing determinations, we make the following orders:
i.
The Notice of Motion dated 17th February 2021 and filed on 18th February 2021 is hereby allowed.
ii.
The applicant shall file and serve its Supplementary Record within the next 14 days from the date of this Ruling.
iii.
The purported Supplementary Record dated 8th February 2021 and filed electronically on 9th February 2021 in Petition No. 16 of 2020, is hereby struck out and expunged from the Court’s Record.
iv.
The costs of this application shall abide the cause.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/49/eng@2021-07-16
Petition 11 of 2019,Kimani & 2 others v Kenya Airports Authority & 3 others (Petition 11 of 2019) [2021] KESC 43 (KLR) (16 July 2021) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,Kimani & 2 others v Kenya Airports Authority & 3 others,[2021] KESC 43 (KLR)               ,,"Brief facts
The appellants moved the High Court challenging their exclusion from operating their taxis at the Jomo Kenyatta International Airport (JKIA) by the 1st respondent in breach of an existing lease. Pending the hearing and determination of the suit, the High Court allowed an application seeking an interlocutory mandatory injunction to compel the 1st respondent to allow them to continue operating their taxi business at JKIA. Aggrieved, the 1st respondent appealed against the decision and the Court of Appeal set aside the orders made by High Court.
Subsequently, the High Court allowed the 1st respondent’s preliminary objection seeking to have the appellants’ suit struck out on among other grounds that: the appellants’ suit and the entire proceedings therein had been filed in contravention of the mandatory provisions of sections 33 and 34(a) of the Kenya Airports Authority Act, Cap. 395, (KAAA). Aggrieved by that High Court ruling striking out the suit, the appellants appealed to the Court of Appeal. The Court of Appeal dismissed the appeal in its entirety and ordered each party to bear its own costs. The appellants were aggrieved by the Court of Appeal decision and thus filed the instant appeal seeking among others the substitution of the orders of the High Court and the Court of Appeal with an order allowing the appellant’s plaint challenging their exclusion from operating their taxis at the JKIA as prayed.","V. Analysis and Determination
37.
Upon appreciation of the parties’ pleadings and submissions, the following are the issues for determination by the court:
(i)
The jurisdiction question:
(a)
whether the petitioners have a right of appeal to this court; and
(b)
whether this court has jurisdiction to hear and determine the appeal under article 163(4)(a) of the Constitution.
(ii)
Whether the Court of Appeal ignored the doctrine of supremacy of the Constitution by elevating section 33(1) of the KAA Act over constitutional provisions.
(iii)
Whether the preliminary objection was res judicata and whether the same was filed out of time in contravention of article 159(2)(d) of the Constitution.
(iv)
Whether the orders sought can issue.
(i) The Jurisdiction question
38.
On the twin jurisdictional question of whether this court has jurisdiction to hear and determine this matter under article 163(4)(a) of the Constitution, and whether the appellants have a right of appeal before this court, parties raised parallel arguments. The appellants urge that the court should look at the original pleadings filed at the inception of the matter in the High Court. That it will find that constitutional issues were pleaded, to wit, contravention of their fundamental rights to property under section 75 and right to protection of the same under sections 77(9), 82 and 84 of the repealed Constitution. Further that the Court of Appeal disregarded the doctrine of supremacy of the Constitution particularly sections 3, 75, 77, 82 and 85 of the former Constitution, and instead elevated and applied sections of the KAA Act.
39.
The 1st respondent urge that the court lacks jurisdiction to determine this appeal as the appeal did not originate from a case involving the interpretation or application of the Constitution. That the appeal is founded on a High Court ruling on the 1st respondent’s preliminary objection, that the appellants ought to have first taken the suit before an arbitrator as per the mandatory provisions of sections 33 and 34 of the KAA Act which is the Statute that governed the lease agreement between the parties. KAA dismisses the invocation of the doctrine of the supremacy of the Constitution as alleged by the appellants urging that the same does not come into question as the main issue in dispute here was based on contractual obligations, the parties having voluntarily entered into a contract as between them.
40.
In Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLR, the court settled that where an appeal involves a matter of constitutional interpretation and/or application, it signals access to the Supreme Court “as of right”, and no form of authorization or leave from the court is required. Thus in the matter before us, once we establish that there is an issue that involves a matter of constitutional interpretation and/or application, it follows that the appellants will have right of appeal before this court.
41.
The contours of a matter falling within article 163(4)(a) jurisdiction are now set in a number of decisions of this Court, starting with the case of Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another [2012] eKLR where the court stated that:
“
article 163(4)(a) must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court……Towards this end, it is not the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application.
… the appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a)”
42.
The warning signaled by this court in the above decision is that the court should be wary of litigants who merely cite constitutional provisions in their pleadings with the intention of finally seeking an appeal to the Supreme Court, even when their case has nothing to do with constitutional interpretation and/or application. To the contrary in determining whether it has jurisdiction, the court should keenly evaluate the Court of Appeal decision, whether in disposing of the matter, there were elements of constitutional interpretation and/or application.
This does not however mean that citing constitutional provisions in one’s pleadings is not a ground for founding an appeal before this court. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, the Court stated thus:
“
(69)
The import of the court’s statement in the Ngoge case is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.”
This holding clearly shows that where specific constitutional provisions of the Constitution were cited and formed the gist of the matter before the Court of Appeal, the appeal is well anchored in article 163(4)(a) of the Constitution.
43.
Consequently, we will agree with the appellants that in determining whether the court has jurisdiction one way is to look at the original pleadings to determine whether indeed specific constitutional provisions were pleaded. This is however, only conclusive where the matter as originally filed in the superior court has been wholly heard and determined and the same has been appealed to the Court of Appeal and is now subject of the appeal before the Supreme Court. What of where the substantive matter as originally filed is still pending and what is before the Supreme Court is subject of an interlocutory matter? Does the inquest start and end with the original pleadings as originally filed? We do not think so.
44.
We have severally held that this court has no jurisdiction to entertain appeals from interlocutory decisions save where the interlocutory decision in question is a substantive determination of a constitutional issue that has been canvassed through the Superior Courts below. (See the cases of Daniel Kimani Njihia v Francis Mwangi Kimani & another [2015] eKLR; Teachers Service Commission v Kenya National Union of Teachers & 3 others [2015] eKLR; and Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others [2018] eKLR). In the Ananias N Kiragu v Eric Mugambi & 2 others [2020] eKLR we stated thus:
“
8.
As a general rule, the Supreme Court does not entertain appeals on interlocutory decisions where the substantive matter is still pending before the Superior courts save where the appeal is not only on a substantive determination by the Court of Appeal of a constitutional question, but also on an issue that had been canvassed right through from the High Court to the Court of Appeal even though the substantive matter is still pending before the High Court.”
45.
A perfect example of a matter where despite the substantive matter as originally filed was still pending before the superior court but this court assumed jurisdiction on an interlocutory matter was in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] eKLR. In that matter, the court discerned and found that the issue it was being called upon to adjudicate (determination of the constitutional validity of section 76(1)(a) of the Elections Act, 2011), though raise as an interlocutory issue, it had a constitutional permutation and had been determined by both the High Court and the Court of Appeal.
46.
With the foregoing analysis and having evaluated the record before us, we dismiss the appellants’ assertion that the court has jurisdiction, and that they have a right of appeal before this court because in their original pleadings, they alleged contraventions of their rights under sections 3, 75, 77, 82 and 85 of the former Constitution. This is because, their substantive suit as filed before the High Court was not fully determined. The same was struck out by Mwera, J (as he then was) in determining a preliminary objection filed by the 1st respondent. Hence, in determining the jurisdiction question in this matter, this preliminary objection is the focal reference point.
47.
Did the preliminary objection as raised in the High Court involve a matter of constitutional interpretation and application? The preliminary objection sought to strike out the suit on the ground that the same was premature as it had been filed in contravention of the mandatory provisions of section 33 and section 34(a) of the Kenya Airports Authority Act. The particular grounds in support of the preliminary objection were that:
i.
the plaintiffs’ suit and proceedings have been filed in contravention of the provisions of section 33, 34(a) of the Kenya Airports Authority Act (cap 395);
ii.
by virtue of those provisions of law, the entire suit plus proceedings were premature, misconceived, incompetent and a nullity; and
iii.
further by reason of the same provisions, the court had no jurisdiction to entertain the suit and so it must be struck out with costs.
48.
Outrightly, at this juncture, it is clear that the preliminary objection as raised invoke no issue of constitutional interpretation. This leads us to the second consideration signaled in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others:
“
whether the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application”.
49.
A perusal of the ruling reveals the contrary. The submissions of the 1st respondent in support of its preliminary objection centred on the applicability of section 33(1) and 34 of the KAA Act. It never invoked any constitutional provision or issue. On their part, the appellants in opposing the preliminary objection referred to the ruling that had been made earlier by Hayanga, J, in which injunction orders were granted and submitted that the provisions of the KAA Act being cited had been dismissed. On that basis, the appellants urged that the preliminary objection was res judicata. Mwera, J (as he then was), upheld the preliminary objection. He dismissed the res judicata plea holding that the Court of Appeal had in fact stated that it left the issue of section 33 for consideration by the trial court, and found that indeed the suit had been brought in contravention of sections 33, for not being subjected to arbitration; and section 34 for lack of serving a notice to the respondent. Suffices it to say that clearly, at the High Court, the matter had nothing dealing with the Constitution.
50.
Before the Court of Appeal, the learned Judges of Appeal summarized the appellants appeal and framed five (5) issues for determination as follows:
(1)
Whether the preliminary objection was res judicata.
(2)
Whether the learned judge erred in both law and in fact in upholding the application of sections 33 and 34 of the KAA Act.
(3)
Whether the learned judge erred in fact and law in entertaining the preliminary objection made 15 years after the suit was filed.
(4)
Whether the preliminary objection constituted a pure point of law.
(5)
Whether the learned judge erred in failing to appreciate the suit was for enforcement of fundamental rights under section 84 of the Constitution.
51.
Outrightly, save for the fifth (5th) issue for determination, which we will shortly interrogate whether it really warrants invocation of this court’s jurisdiction under article 163(4)(a), all other issues are not constitutional. Did the Court of Appeal apply the Constitution in its determination of the framed issues?
52.
On res judicata, the Court of Appeal, invoking section 7 of the Civil Procedure Act, found that it was not applicable since neither the High Court nor the Court of Appeal pronounced themselves on sections 33(1) and 34. It held:
“
21.
We have considered the ruling of Hayanga, J. and the judgment of this court against the said ruling. We do not agree that Mwera, J. erred in finding and holding that the preliminary objection was not res judicata. An issue can only be considered res judicata when it has been finally determined and is no longer subject to an appeal. If a lower court determines a matter or pronounces itself on an issue and subsequently an appellate court reverses that decision or finding and thereafter the hearing proceeds before the trial court, it cannot be said that the issue that had been raised and determined by the trial court earlier is res judicata.”
In making this finding, there was no indication of application or interpretation of the Constitution.
53.
Turning to the application of sections 33 and 34 of the KAA Act, in striking out the suit, the appellants had urged that the learned Judge erred as he failed to appreciate that the constitutionality of these sections was being challenged in the main suit. Further, that their case was for breach of fundamental rights and as such these sections did not apply. Prima facie, this is a constitutional issue. But does it warrant invocation of this court’s jurisdiction?
54.
We have stated above that it is not the mere allegation or citing of constitutional provisions that places a matter within the four corners of article 163(4)(a) of the Constitution. A party must demonstrate that those provisions were indeed subject of the court’s findings and determination. In this appeal, the appellate court found that it had previously pronounced itself on the constitutionality of the appellants’ claim, and particularly section 33(1) of the KAA Act. That it had twice made a finding that the appellants claim was not for enforcement of fundamental rights as alleged and it was thus functus officio on the issue. Did the Court of Appeal interpret and/or apply the Constitution in making this finding? We do not think so.
55.
It is trite law that a court of law takes judicial notice of its decisions. In holding that it was functus officio on the issue, the Court of Appeal made reference to its previous two decisions in: “Civil Application No NAI 29 of 1997, Kenya Airports Authority v Paul Njogu Mungai, James Kimani & New Jambo Taxis, (being an application for stay of execution of Hayanga, J’s ruling pending appeal), and Civil Appeal No 282 of 2001, Kenya Airports Authority v Paul Njogu Mungai, James Kimani & New Jambo Taxis. Upon that reference the appellate court concluded thus:
“
29.
This court, having pronounced itself on the constitutionality of the appellants’ claim, and particularly section 33(1) of the KAA Act, it is functus officio and cannot revisit it. We must therefore reject the appellants’ contention that the learned judge erred in failing to appreciate that the suit before him was for enforcement of fundamental rights. As was held by this court in Republic v National Environmental Management Authority [2011] eKLR, “It is for the court to undertake a proper scrutiny based on the pleadings before it to determine whether the dispute has a complete constitutional trajectory”.”
56.
We do not find anything constitutional in a court making a finding that on an issue or suit before it, it is functus officio. Be that as it may, the Court of Appeal having made a finding that it has twice determined the issue in separate cases, which cases are not before this court on appeal, the Supreme Court cannot sit on ‘appeal’ on those issues. Consequently, this allegation as framed by the appellants does not invoke this court’s jurisdiction under article 163(4)(a) of the Constitution.
57.
The issue whether there was inordinate delay in the filing of the preliminary objection and as determined by the Court of Appeal, dismissing it, has no constitutional aspect. So is the issue whether the preliminary objection constituted a pure point of law. The Court of Appeal found that there was a pure legal question, whether the appellants had complied with section 33(1) and 34 of the KAA Act or not. A question the Court of Appeal answered in the agreement with the 1st respondent that the same had not been complied with. Hence on all four these issues framed and determined by the Court of Appeal, we find no constitutional issue to cloth this court with jurisdiction.
58.
We now turn to consider the last issue framed by the Court of Appeal: Whether the learned judge erred in failing to appreciate the suit was for enforcement of fundamental rights under section 84 of the Constitution. We warn ourselves for the umpteenth time that it is not the alleging or framing of issues by a party as raising a constitutional matter that clothes this court with jurisdiction.
The court will zealously guard against schemes that may seek to invoke this court’s jurisdiction where none is available through the craft of pleadings drafting.
59.
Be that as it may, on this issue it was urged before the Court of Appeal that the learned judge, in upholding the preliminary objection and thereby striking out the appellants’ suit, disregarded the provisions of article 159(2)(d) of the Constitution that obliges the court to administer justice without undue regard to procedural technicalities. The Court of Appeal disabused this argument citing this Court thus:
“
In Raila Odinga v I.E.BC & others [2013] eKLR, the Supreme Court held that article 159(2)(d) of the Constitution was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the court.”
Consequently, the appellate court found that the mandatory provisions of sections 33(1) and 34 of the KAA Act ought to be complied with and were not a mere technicality to be disregarded. The appellate court found that parties’ rights were contained in a lease which expressly incorporated the aforesaid provisions of the law and that they had to be complied with.
60.
We reserved this issue for determination last because this is the only issue that in its determination, the Court of Appeal made reference to the Constitution, article 163(4)(a). Is this reference enough to invoke this court’s jurisdiction under article 163(4)(a) of the Constitution? We do not think so. First we have found that the Court of Appeal dismissed the appellants attempt at clothing their suit as one for enforcement of fundamental rights and held that it was pure a contractual dispute. Equally, the Court of Appeal dismissed the appellants’ allegations that the High Court disregarded article 159(2)(d) of the Constitution by resorting to statutory provisions of the KAA Act. Looking at the Court of Appeal Judgment on this issue we do not think that its sentiments on the issue were material enough to reach a finding that the Court of Appeal interpreted and/or applied article 159(2)(d) of the Constitution.
61.
It is not granted that whenever the Court of Appeal mentions a provision of the Constitution in its decision, the matter under consideration automatically invokes this court’s appellate jurisdiction under article 163(4)(a) of the Constitution. In any event, the Constitution is the supreme law of the land and all decisions have to abide and follow it. Hence a mention of the Constitution by the court when making a determination will not always cloth the matter with constitutional issues. In Aviation & Allied Workers Union of Kenya v Kenya Airways Limited & 3 others, [2017] eKLR, Petition No. 4 of 2015 we held that the mere reference to the rich generality of the constitutional principle is not a sufficient ground to invoke article 163(4)(a).
62.
At this juncture, it is imperative to reiterate this court’s holding in a recent matter that involved some of the appellants, being Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney-General & 2 others [2020] eKLR. In this matter, the court re-stated its jurisprudence on article 163(4)(a) Constitution as follows:
“
(62)
We cannot over-emphasize the specialized nature of article 163(4)(a)’s appellate jurisdiction of this court. That jurisdiction is not just another level of appeal. Thus, even if the original suit in the High Court or lower court invoked specific constitutional provisions, that fact alone is not enough for one to invoke and sustain an appeal before this court. A party has to steer his appeal in the direction of constitutional interpretation and application. He/she should directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution. It could be while a matter invoked specific constitutional provisions, those provisions were never part of the court(s)’determination and the matter turned on purely factual and or statutory issues. Thus, the following attributes are imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution:
(i)
The jurisdiction reveres judicial hierarchy and the constitutional issues raised on appeal before the Supreme Court must have been first raised and determined by the High Court (trial Court) in the first instance with a further determination on the same issues on appeal at the Court of Appeal.
(ii)
The jurisdiction is discretionary in nature at the instance of the court. It does not guarantee a blanket route to appeal. A party has to categorically state to the satisfactory of the court and with precision those aspects/issues of his matter which in his opinion falls for determination on appeal in the Supreme Court as of right. It is not enough for one to generally plead that his case involves issues of Constitution interpretation and application.
(iii)
A mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involves little or nothing to do with the application or interpretation of the Constitution does not bring an appeal within the jurisdiction of the Supreme Court under article 163(4)(a).
(iv)
Only cardinal issues of constitutional law or of jurisprudential moment, and legal issues founded on cogent constitutional controversies deserve the further input of the Supreme Court under article 163(4)(a).
(v)
Challenges of findings or conclusions on matters of fact by the trial court of competent jurisdiction after receiving, testing and evaluation of evidence does not bring up an appeal within the ambit of article 163(4)(a).”
63.
It is upon these principles that we have holistically evaluated the jurisdiction question in this matter. We have already demonstrated that of all the issues framed and determined by the Court of Appeal, none involved interpretation or application of the Constitution. While the original suit alleged violation of specific constitutional provisions, that suit was not determined on its merit, the same having been struck out in a ruling on a Preliminary objection, subject of this appeal. Hence those specific sections of the repealed Constitution do not aid the petitioner by clothing this Court with jurisdiction. Turning on the preliminary objection in the High Court, it was on a pure statutory point of law, whether in filing the suit, the appellants contravened sections 33(1) and 34 of the KAA Act. Again, nothing turns on this to cloth this court with jurisdiction. Lastly, the Court of Appeal reference to the Constitution, particularly article 159(2)(d) was so remote that the same cannot warrant assumption of jurisdiction as of right by this court. The same was in reference to a general constitutional principle that frowns upon preference to procedural technicality instead of substantive justice, which in fact was found not to be applicable in the appeal before it.
64.
The upshot of the foregoing is that this appeal fails the jurisdictional test before this court. The appellants have nothing that grants them the right of appeal before this court.
65.
Before the final orders, we would like to state that even on the single question of constitutionality of section 33(1) of the KAA Act, which issue we have found was not determined in this particular matter, this court pronounced itself on its constitutionality in Modern Holdings (EA) Limited v Kenya Ports Authority [2020] eKLR. Called upon to determine the constitutionality of section 62 of the Kenya Ports Authority Act, which has the same import as section 33 of the KAA Act, this court held section 62, together with similar sections in other statutes, as being constitutional and in accordance with article 159(2)(c). The court held:
“
48.
We have no doubt that expeditious and efficient (with the input of experts) disposal of disputes like the one in this case was one of the objectives that informed the enactment of section 62 of the KPA Act and other similar provisions such as section 83(1) of the Kenya Railways Corporation Act; section 33 of the Kenya Airports Authority Act; section 29 of the Kenya Roads Act; and section 32 of Inter-Governmental Relations Act (IGRA).
…
51.
For these reasons, we affirm the Court of Appeal decision that section 62 of the KPA Act is not unconstitutional. It simply provides for ADR mechanism of arbitration reinforced by article 159(2)(c) of the Constitution…”
66.
In light of the foregoing determination, we find that we lack jurisdiction to interrogate the other issues and make the following orders:
(i)
The appellants’ petition dated March 15, 2019 is hereby dismissed.
(ii)
There is no order as to costs.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/43/eng@2021-07-16
Petition of Appeal 22 of 2019,Mbevo v Mati & 2 others (Petition of Appeal 22 of 2019) [2021] KESC 74 (KLR) (16 July 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,Mbevo v Mati & 2 others,[2021] KESC 74 (KLR)               ,,"A. Introduction
1.
On 28th September 2020, the appellant filed a Notice of Withdrawal of petition dated 25th September 2020. Subsequently, on 6th October 2020, the Court (Rtd Chief Justice, David K. Maraga) recorded a Withdrawal Order and directed parties to file and serve written submissions on costs.
B. Background
2.
Following the 8th August 2017 General Elections for Member of County Assembly (MCA) Mutonguni Ward, Kitui West Constituency, the 3rd respondent (the returning Officer) declared the appellant (Baridi Felix Mbevo) the duly elected MCA. Dissatisfied with these results, the 1st respondent (Musee Mati) filed before Kitui Chief Magistrates Court, Election Petition No. 1 of 2017. On 31st February 2018, the Chief Magistrates Court (Munguti PM) nullified the election declaration and ordered the 2nd and 3rd respondents to issue a certificate of election to the 1st respondent. The Court further ordered the 2nd and 3rd respondents to bear the appellant’s and the 1st respondent’s quantified costs.
3.
Aggrieved by the said decision, the appellant filed an appeal before the High Court in Petition No 1 of 2018 and in a judgment delivered on 20th June 2018, the Court (Mutende J) overturned the decision of the trial court and made an order for fresh elections. It also ordered the 1st respondent to bear the appellant’s costs before both the Chief Magistrates Court and the High Court.
4.
Being dissatisfied with the High Court judgment, the 1st respondent filed an appeal before the Court of Appeal, Election Petition Appeal No. 28 of 2018. The appellant similarly filed a cross appeal. However, following the Court of Appeal pronouncement in Petition of Appeal No. 32 of 2018 that it lacks jurisdiction to hear appeals on disputes pertaining the election of a Member of County Assembly, the 1st respondent withdrew his appeal. In contrast, the appellant chose to proceed with his cross appeal. In a judgment delivered on 25th May 2019, the Court of Appeal dismissed the appellant’s cross appeal for lack of jurisdiction.
5.
Further aggrieved, the appellant moved this Court challenging the Appellate Court’s finding on jurisdiction. On 28th September 2020, the appellant withdrew the petition and a Withdrawal Order was issued on 6th October 2020. As the parties could not agree on costs, they were directed to file and serve written submissions and thereafter, the Court would give its determination on the question of costs.","C. Issues for Determination
13.
From the foregoing, only one issue arises for determination:
Whether costs are payable in this matter, and if so, to which party.
D. Analysis
14.
The main contention by the appellant is that each party should bear its own costs before this Court for reasons that all the parties were successful upon the withdrawal of the petition. In the alternative, he contends that the 1st respondent was the sole beneficiary of the withdrawal and any costs incurred in the matter was occasioned by the respondents’ demand for costs as a condition for withdrawal. The appellant further invokes a public interest contestation by urging that the issues raised in the withdrawn petition were constitutional in nature affecting the electorates of Mutonguni Ward.
15.
The respondents maintain that they are entitled to costs pursuant to Rule 60(2) of the Supreme Court Rules, 2020. The reasons offered are that, costs follow the event; orders for withdrawal are subject to orders for costs to the respondents; and that they have incurred costs by instructing advocates, attending court and other ancillary expenses. The respondents also oppose the appellant’s contestation on public interest and strongly contend that the petition was filed purely for private gains.
16.
It is trite that we have an inherent jurisdiction to make orders on costs. In the Jasbir Singh Rai Case at paragraph 11, this Court established that costs fall under the inherent powers of the Court. Section 21(2) of the Supreme Court Act and Rule 3(5) of the Supreme Court Rules, 2020 are instructive on this issue. Further, the exercise of this jurisdiction is an issue of judicial discretion which must be exercised judicially and in accordance with reason and justice.
17.
Moreover, we have considered and laid down the principle on costs in Jasbir Singh Rai, which findings we reiterate are properly applicable to the present case. There we stated as follows:
“
(18)
It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.” [Emphasis added]
18.
On discretion, this Court found:
“
Although there is eminent good sense in the basic rule of costs
– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.” [emphasis added]
19.
Having so stated, we note that the costs awarded by the Chief Magistrates Court, the High Court and the Court of Appeal are not challenged by the parties. The Court shall therefore refrain from addressing itself on the same. What is in issue is costs before this Court.
20.
We have perused the record and note that the petition was withdrawn before the respondents could file any responses or submissions on the substantive issues. The appeal, at the time of withdrawal was not ready for hearing. We have further considered the rival submissions by the parties and are convinced that the petition was withdrawn on grounds that it had been overtaken by events. This was after a by-election, ordered by the High Court, had been conducted and concluded with the 1st respondent emerging the winner. The appeal therefore was frustrated necessitating its withdrawal.
21.
Applying the principle in the Jasbir Singh Rai Case that costs normally follow the event, the question to ask is whether an event to which costs would follow has materialized. The answer is in the negative. The appellant’s appeal did not fail but was frustrated. Strictly speaking, there were no winners or losers following the withdrawal. It is the occurrence of the event which crystalizes costs for the successful party. In this matter, that event has not crystalized. That said, the inevitable conclusion is that each party shall bear its costs before this Court.
E. Orders
22.
In the event, and in the exercise of discretion we order as follows;
1.
Each party shall bear its costs of the Appeal.
23.
It is accordingly so ordered.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/74/eng@2021-07-16
Civil Application 5 of 2020,MNK alias MNP v POM (Civil Application 5 of 2020) [2021] KESC 46 (KLR) (Civ) (16 July 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,MNK alias MNP v POM,[2021] KESC 46 (KLR)               ,,"I. Introduction
(1)
Before the Court is an application dated 4th March, 2020 and filed on 6th March 2020. It is brought under Articles 159(2)(d) and 259 of the Constitution; Sections 15 and 16 of the Supreme Court Act; and Rule 24 of the Supreme Court Rules 2012 (now Rule 33 Supreme Court Rules 2020). The application springs from a suit concerning long cohabitation, presumption of marriage and dealing with property acquired during such cohabitation under Section 17 of the Married Women’s Property Act (1882), (MWPA). The Applicant seeks review of the Court of Appeal decision denying certification of the matter as one of general public importance (GPI). Leave is also sought to appeal to the Supreme Court. The application is supported by the affidavit of the Applicant and it seeks the following orders:
(i).
That this Honourable Court be pleased to review the Court of Appeal decision dated 21st February, 2020 in CACA SUP No. 4 of 2019 at Nairobi and grant the applicant leave to appeal to the Supreme Court against the Honourable Court of Appeal’s Judgment dated 25th January, 2019 and issue a certificate that a matter of General Public Importance is involved in the intended appeal.
(ii).
That the costs of this application be in the intended appeal.
II. Litigation Background
(a) In the High Court
(2)
The Respondent moved the High Court via an Originating Summons under Section 17 of the Married Women’s Property Act (1882). He sought a declaration that the suit property, Plot No. Dagoretti/Riruta/[....], was acquired and developed jointly with the Applicant during their marriage by cohabitation, hence that it was jointly owned. He also sought restraining orders barring the Applicant from disposing of the suit property; and that it be subdivided equally and each share be registered in the respective party’s name or that it be valued and sold and proceeds shared equally.
(3)
It was the Respondent’s case that they met with the Applicant in 1986 and cohabited as a husband and wife up to the year 2011. Each was by then earning a living and that they jointly saved enough and purchased a quarter acre of land, the suit property, being Plot No. Dagoretti/Riruta/[....]. He averred that the seller of the suit property, at the time of their purchase, was not willing to sell it to a person outside her community and they thus agreed to have the property registered in the Applicant’s name, but to include one of the Respondent’s name to cater for his interests. The reason the property title was registered as MNP, so it was urged.
(4)
The Respondent further urged that they invested in the property jointly, built rental houses and that he, the Respondent, retired from employment in 1993 to invest in a bar and a butchery (Particulars Withheld) within the property. That utility bills were registered in the Respondent’s name until 2011 when the Applicant changed the electricity bills to her name but water bills remained registered in the Respondent’s name. Further, that tenancy agreements for the rental houses were drawn in the Respondent’s name and he was the chairman of the sewer line construction committee within the estate in respect of the suit property. That he invested his lifetime earnings in developing the suit property, now a three floor storey building where he resided for two decades. That they agreed to engage an agent to manage the estate due to the Respondent’s age and an agreement was signed between the parties and the agent.
(5)
That subsequently, the Applicant obtained restraining orders against the Respondent. That was in Milimani CMCC 4364 of 2011 in which suit, she also produced a contrary estate agent agreement. The Respondent was evicted and the Applicant started collecting all the rents, of about Kshs.258,000/- per month, rendering the Respondent without any source of income to support himself and his other family. Conflict started when the Respondent requested the Applicant that they allocate one bedroom on a permanent basis to his son from another marriage who was finishing college, as they had allocated one to the Applicant’s son from her earlier marriage. It is on this basis that the Respondent moved the High Court for the orders contained in the Originating Summons.
(6)
Before the High Court, the Applicant denied marriage to the Respondent. She averred that she was at all material times married to one K, with whom they separated in 1987. She agreed to cohabiting with the Respondent for some time, but contended she did not have the capacity to contract a subsequent marriage since she had not divorced K until his death in 2011. She thus urged that with lack of proof of marriage, the Respondent could not be afforded protection under the MWPA. She submitted that the Respondent was her agent who sold water within the premises, having a butchery and a bar. That some utilities bills were therefore registered in his name for the premises he had rented. She urged that she had purchased the suit property by herself and that the name P appearing amongst her names on the property’s title document, referred to her father who was christened as P in the year 1979.
(7)
Upon hearing the parties, the High Court (Musyoka J) ruled that even though the parties had cohabited for a long period with repute of being married, he could not presume marriage. That the Applicant, formerly married to K under customary law, remained married to the said K until his demise in 2011, since they had never divorced. That the Applicant did not have capacity to contract a subsequent marrriage. That the Applicant was living in an adulterous relationship and not a marriage. The name K whose origin could not be explained from the Applicant names, could only be attributed to her former husband. In absence of a marriage, the Court held, the Respondent could not rely on the provisions of MWPA whose reliefs are based on proof of marriage.
(b) In the Court of Appeal
(8)
The Respondent was aggrieved and appealed to the Court of Appeal. The Court of Appeal allowed the appeal holding that the High Court erred in finding that there was long cohabitation but declined to presume marriage because of a ‘K’, whose existence the Court of Appeal found was not proved. The appellate Court presumed existence of a marriage, allowed the appeal, and ordered the suit property to be divided into two halves, a share for each party.
(9)
Aggrieved by that decision, and desirous to appeal to this Supreme Court, the Applicant sought certification and leave before the Court of Appeal. Her application for leave was denied by a majority decision of the Court of Appeal. The majority held that the issues the Applicant intended to be raise before the Supreme Court were not issues before the trial court or on appeal. They held that the matter before the High Court had been a simple one - whether the Applicant and the Respondent had cohabited and whether, during that cohabitation, they had acquired the property in question. To the learned Judges in the majority, these were straight forward matters of a private nature and findings had been made on those issues. There was thus no issue raised meeting the standard set by the Supreme Court in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR on what amounts to a matter of general public importance.
(10)
Dissenting, Koome JA, found that the matters raised bore public interest significance. First that when the Respondent filed the suit, he was not claiming to be husband to the Applicant. Consequently, the learned Judge of Appeal opined that it is necessary for the Supreme Court to determine whether it was appropriate to resolve the issue of presumption of marriage under the said regime of law. Further that the legal regime under the MWPA had majorly been available to women, hence this case, where it is a man who was claiming under it, raised pertinent questions that the Supreme Court should settle. These she stated as follows:
“
However this case raises questions which in my humble view are of general public importance; these are, whether, parties who are not in a recognized union of marriage in the first place and where there is even no prayer sought for presumption of marriage can file a case under the MWPA, which was a procedural form of determining uncontested matters between husband and wife. Can a court therefore proceed to determine weighty contested issues of presumption of marriage in the same manner? What comes first a suit for presumption and what consideration should be taken into account in determining ownership of property within marriage?”
Based on these and other questions she posed, the learned Judge of the Court of Appeal dissented from the majority holding that the matter had met the threshold in Hermanus case.
III. Application before the Court
(11)
Before the Supreme Court, the Applicant has anchored her application on the dissenting decision of Koome, JA. The issues raised are: whether parties in an unrecognized marriage where no prayer is sought for presumption of marriage can file a case under Married Women Property Act [MWPA] which provides for husband and wife; whether a suit for presumption of marriage should precede claim under the MWPA; what consideration should be taken into account in determining property ownership in marriage; whether the Court of Appeal made an actual assessment of the parties respective contribution to acquisition and development of the suit property.
(12)
Other issues raised are presumption of marriage where there is no consent; capacity of parties to enter into multiple relationships; and principles of equality of ownership of property, which are stated to be constitutional controversies affecting the unit of family. That these issues touch on the Bill of Rights and principles of equity and equality governing sharing of property in a marriage. That this Court is called upon to address claims by men for courts to know the principles to apply since men and women play different roles in marriage. That these are matters of public interest because of rampant long-term cohabitation trends in Kenya; and these issues transcend the circumstances of this particular case and have a bearing on marriage and the family which are fundamental pillars of social order protected by the Constitution. Further, that there is uncertainty in law relating to whether the Common Law doctrine on presumption of marriage ought to continue being applied under the current constitutional dispensation due to lack of recognition under the current provisions of the Marriage Act No. 4 of 2014. The Applicant urge that the Supreme Court ought to settle the law in line with Section 3 of the Judicature Act.
(13)
The Respondent opposed the application via a Replying Affidavit dated 5th June 2020. He contends that there was no appeal by either party on the High Court finding that there was long cohabitation between the parties. His appeal was limited to the Applicant’s denial of consent and capacity to enter into marriage by cohabitation due to her undissolved marriage to ‘K’. He thus urges that the issues raised in the application as the issues in contention were not issues raised in the Court of Appeal.
(14)
The Respondent deponed that the Marriage Act does not apply retrospectively and that presumption of marriage, based on common law doctrine is not ousted by the Marriage Act. He relied on Section 119 of Evidence Act on presumption of facts. That the application does not raise matters of general public importance and it was properly dismissed by the Court of Appeal. That the matters intended to be placed before the Supreme Court were never placed before the superior courts before and do not transcend the interests of the parties.
IV. Parties Written Submissions
(a) Applicant’s submissions
(15)
In her submissions dated 4th March 2020, the Applicant urges that there was no cohabitation by the time the suit was filed under the MWPA and Section 3 of the Judicature Act. That presumption of marriage was never sought whereas property under MWPA is given to a spouse. That the prayer for presumption of marriage was introduced at the Court of Appeal violating right to fair hearing. Reliance was placed on the principles set by the Supreme Court in the Hermanus case among other decisions of this Court.
(16)
It is submitted that the appeal raises issues of GPI as prayed. The claim is made by a man, revolving around cohabitation and presumption of marriage doctrine. The matter raises substantial points of law as per the minority finding by Koome JA. She submits that cohabitation outside marriage is rampant nowadays and the Supreme Court should take judicial notice of the same. Being not a recognized form of marriage in the Marriage Act 2014, the Supreme Court’s input is needed.
(b) Respondent’s submission
(17)
In his submissions dated 5th June 2020, the Respondent reiterates his averments in the Replying Affidavit. He contends that the issues the Applicant intends to raise in this Court of alleged general public importance do not met the requirement under Article 163(4) of the Constitution. He submits that the issues claimed to be issues of law never arose in the superior courts below as required. It is his contention that there is neither uncertainty in law nor existence of contradictory precedent as alleged. He asserts that the Applicant’s submissions would have been useful if tendered before the superior courts below. Thus, that the application fails to meet the set principles by case law and the same should be dismissed.","V. Analyis and Determination
(18)
The single issue for determination in this matter is whether the Applicant has made a case for review of the Court of Appeal denial of certification, and whether the leave to appeal to the Supreme Court should thus issue upon that review.
(19)
The power of this Court to review a denial of certification by the Court of Appeal is provided for under Article 163(5) of the Constitution and Rule 33(2) of the Supreme Rules 2020 (previously Rule 24 of Supreme Court Rules 2012 (Repealed) under which this application was brought. This jurisdiction is now circumscribed in a replete of decisions by this Court which lay out the guiding principles on the same, notably the Hermanus case.
(20)
We have specifically weighed this application against the guiding principles set in the Hermanus and Town Council Of Awendo v Nelson Oduor Onyango & 13 others [2015] eKLR cases, among other principles setting cases on certification. The crux of the issues the Applicant formulated for determination by this Court and arguments thereto are informed by the dissenting opinion of the Court of Appeal. We reiterate that in an application for review of the decision of the Court of Appeal on certification, akin to this one, the decision of the court under review is the majority decision, as that is the decision of the court. This is the decision which an applicant is under a duty to demonstrate how the majority in making it erred, so that the Supreme Court is persuaded to review and set it aside. More premium should therefore be on the majority decision and not the dissenting opinion. In that regard, we note the words of Nyamu, JA in the persuasive Court of Appeal decision in Stanbic Bank Kenya Limited v Kenya Revenue Authority [2009] eKLR, on dissenting opinions thus:
“
The above notwithstanding I do salute the dissent of my learned brother Justice Visram, J.A. I therefore, consider it appropriate to try and explain what I consider to be the position of dissenting judgments should occupy in our jurisprudence. First in my view, dissenting judgments constitute an expression of independence, freedom of thought and intellect and, second, they may lay the basis for future development of the law. Third, they may provide a firm base for future generations not to contain themselves in straight jackets, but to always remember that at the end of the day, that much sought justice might after all not be in the thunder of the majority judgment, but in the silent breeze of the minority judgment! Charles Hughes, a one time U.S. Supreme Court Chief Justice is often quoted as having said:-
“dissenting opinions constitute an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believe the Court to have betrayed.”
(21).
A dissenting judgment should never stir up anger but instead encourage a brotherhood of service to the law and society.”
(22)
Thus, to the judges, dissenting opinions grant them an avenue to freely express their contrary views while maintaining the brotherhood and comity of service to the law. On the other hand, to the litigants and the society at large, dissenting opinions assures them that their views have not been disregarded and may in fact form the basis of future development in that particular area of the law. Having said that, it cannot be that the mere fact that there is a dissenting opinion, outrightly gives a litigant a right of review of the Court of Appeal decision to this Court and that that litigant now converts that dissenting opinion to his/her foundation for the review application before the Supreme Court. A dissenting opinion is not a panacea for a meritorious review application before the Supreme Court.
(23)
Having so said and turning to the merit of the application before us, at the core of the findings of both superior courts was the issue of consent to marriage now framed in line with the Article 45 (2) of the Constitution 2010. That argument is the backbone of all other arguments in the application. From it, it is argued that without consent to marry as required, there was no valid marriage by reputation between the parties, and in absence of a marriage, the MWPA could not apply to the parties. This leads to the contention that the order dividing the property allegedly acquired jointly by the parties during continued cohabitation had no legal basis.
(24)
From the Record, parties led viva voce evidence in proof of their cases, each party calling witnesses. The High Court found that there was long cohabitation but failed to move further to determine other aspects of the case because it could not presume a marriage based on morality, holding the cohabitation to be an adulterous relationship in absence of capacity to marry. The issue before the Court of Appeal was thus whether the High Court was right in failing to presume a marriage having found there was long cohabitation and whether in presence of consent, whether the suit property could be equally shared by the parties. Before this Court, it has been submitted that the Court of Appeal could have re-assessed all aspects of the case including contribution had the Applicant cross appealed. Finding that the Applicant had capacity to marry, the Court of Appeal ordered the suit property to be divided equally.
(25)
On our part, we note that the issues raised are not frivolous and indeed transcend the specific circumstances of the parties before us. The question of property acquired during cohabitation or in a marriage which is unrecognized by law is an important one for the general public and this Court cannot shut its eyes to the need to settle the law in that regard. Furthermore, we are of the opinion that we need to give guidance on whether, proceedings can lie under the Married Women’s Property Act, in such a situation.
(26)
In the circumstances, while granting a review of the decision of the Court of Appeal declining certification under Article 163(5) of the Constitution, parties shall file submissions and highlight them on the following issues only:
i)
Whether parties to a union arising out of cohabitation and/or in a marriage unrecognized by law can file proceedings under the Married Women’s Property Act? And if so, upon what basis would this be done?
ii)
What relief is available to the present parties?
(27)
The upshot is that considering the principles of this Court on review of certification, we make the following orders;
(a)
The Applicants’ application for review of certification and leave to appeal to the Supreme Court dated 4th March 2020 is hereby allowed but only to the extent that this Court has stated.
(b)
There is no order as to costs.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/46/eng@2021-07-16
Petition 2 of 2018,Musembi & 13 others v Moi Educational Centre Co. Ltd & 3 others (Petition 2 of 2018) [2021] KESC 50 (KLR) (16 July 2021) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,Musembi & 13 others v Moi Educational Centre Co. Ltd & 3 others,[2021] KESC 50 (KLR)               ,,"Brief facts
The petitioners filed a petition at the High Court concerning the alleged forceful and illegal eviction of the petitioners, who were inhabitants of City Cotton and Upendo villages, two informal settlements within the Nairobi County. The petitioners’ claim was that they had settled on the suit property in 1968. They further claimed that since settlement, they had constructed semi-permanent houses and business structures; had been supplied with social amenities and services such as water and electricity, and had been legally licensed to carry on and operate businesses on the suit property. They also alleged that their children attended nearby public primary schools.
The High Court found that the demolition of the petitioners’ houses and their forced eviction from the suit property without providing them and their children with alternative land or shelter was a violation of their fundamental rights to inherent human dignity, security of the person and access to adequate housing, a violation of the fundamental rights of children and a violation of the rights of elderly persons. The High Court also awarded the petitioners, damages.
Aggrieved by the decision of the High Court, the respondents filed an appeal at the Court of Appeal. The appeal at the Court of Appeal was partly allowed and the court issued a declaration that the forced evictions and demolition of the petitioners’ houses without a valid court order was a violation of their right to inherent human dignity and security of the person. The Court of Appeal found that there was no evidence placed before the High Court to enable it assess damages and that whereas it was the duty of the State to take measures, (legislative, policy and other measures) to achieve the progressive realization of the rights guaranteed under article 43 of the Constitution of Kenya, 2010 (the Constitution), it was not under a positive obligation to provide the evictees with housing. Further aggrieved, the petitioners filed the instant appeal.","D. Analysis and Determination
44.
Having considered the respective parties’ pleadings and submissions in the instant Petition, this court is of the considered view that the issues arising for determination are;
a.
Whether the forced evictions violated the petitioners’ rights under articles 28, 29, 43, 53 and 57 of the Constitution;
b.
Whether the court of Appeal misinterpreted and misapplied the provisions of article 21 of the Constitution on the doctrine of progressive realization of rights; and
c.
Whether the court of Appeal erred in interpreting article 23 of the Constitution specifically on the available remedies once a court has determined that there were violations of rights.
45.
We shall determine each issue separately as here below;
a. Whether the forced evictions violated the petitioners’ rights under articles 28, 29, 43, 53 and 57 of the Constitution
46.
With regard to the claims instituted by the petitioner against the respondents, and particularly on the violation of their rights as pronounced under articles 28, 29, 43, 53 and 57 of the Constitution, the constitutional rights they allege to have been violated are founded on the right to property ownership and entitlement, which is provided for under article 40(1)(a) & (b) of the Constitution, and which reads;
“Subject to article 65, every person has the right, either individually or in association with others, to acquire and own property –
a.
of any description; and
b.
in any part of Kenya”.
47.
In ensuring that the right to property ownership is not violated, it is provided at article 40(2)(a) that;
“Parliament shall not enact a law that permits the State or any person –
b.
to arbitrarily deprive a person of property of any description, or of any interest in, or right over, any property of any description; or
c.
to limit, or in any way restrict the enjoyment of any right under this article, on the basis of any of the grounds specified or contemplated under article 27(4)”.
48.
These constitutional rights as guaranteed under the cited provisions are only in relation to property that has been legally acquired, and does not extend to property that has been unlawfully acquired. In that regard, article 40(6) of the Constitution is instructive and provides that;
“The rights under this article do not extend to any property that has been found to have been unlawfully acquired”. [Emphasis added].
49.
The petitioners’ claim in the above context was that the 1st respondent had entered into and forcefully evicted them from the suit property which they had resided in since the 1960s, thereby depriving them of their right to own property under article 40(1), as well as a violation of their social and economic rights under article 43. They decried that after they were evicted from the suit property, the 1st respondent was then issued with a letter of allotment to the property by the 3rd respondent.
50.
Whether the 1st respondent was issued with a letter of allotment is one issue; what was more important from the outset however was the determination of the question whether the letter of allotment was issued lawfully or legally. That question was not an issue that was conclusively determined at the High court or the court of Appeal. We note in that regard that the petitioners had sought a declaration that the acquisition of the suit property was illegal and unlawful. The learned Judge of the High court in her rendition on the issue held, inter alia;
“I am, however, not in a position to issue orders in relation to the legality or otherwise of the 1st respondent’s title. The determination of that issue is, I believe, best left to the National Land Commission or a court of law seized of that particular matter which can call for the relevant evidence and examine all such documents pertaining to the allocation of the land to the 1st respondent as it deems necessary for it to establish the validity or otherwise of the title.” [Emphasis added, Para 86]
51.
The learned Judge had thus, on her part, correctly held that the issue would be better determined by the National Land Commission as provided under section 152C of the Land Act, and which provision further allows for the procedure to be followed in the event of an eviction(s). At the said section 152C of the Act, it is provided that;
“The National Land Commission shall cause a decision relating to an eviction from public land to be notified to all affected persons, in writing, by notice in the Gazette and in one newspaper with nationwide circulation and by radio announcement, in a local language, where appropriate, at least three months before the eviction”.
It should be noted, however, that the procedures enacted in the amendments to the Land Act, through the Land Laws (Amendments) Act No 28 of 2016, amended the provisions of the Land Act to include the powers of the National Land Commission in land eviction matters, and were only enacted in September, 2016, when the instant matter had already been instituted and determined by the High court. On our part, we note that the learned Judge also correctly held that the relevant court seized of jurisdiction over land matters – the Environment and the Land court – should have determined that question. We see no reason to say more on that issue as it is moot.
52.
Having so stated and since the title held by the 1st respondent remains unimpeached, what ought to be determined is the question whether, in evicting the petitioners, the respondents violated the petitioners’ rights to human dignity and security, as well as the rights to housing and health under article 43, read with articles 28, 29, 53 and 57 of the Constitution.
53.
In that regard, it is an undeniable fact that forced evictions generally constitute a violation of fundamental rights and freedoms and an abuse of inherent human rights and dignity under article 43 of the Constitution, including, but not limited to, the right to the highest attainable standards of health and healthcare services, accessible and adequate housing, freedom from hunger and to adequate food, clean and safe water, social security and education. The onus of ensuring that these rights and freedoms are attained and provided for falls squarely under the ambit of the State; and that it is the obligation of the State to ensure that these rights and freedoms are not limited without reasonable justification in an open and democratic society based on human dignity, equality and freedom as provided for under article 24(1) of the Constitution.
54.
Further, in ensuring that these social and economic rights are protected, the State has to strike a delicate balance between the rights of those that are most vulnerable in the society and those that are in economic advantage. The State thus has to ensure that in the protection of the rights of an individual or group of persons, it does not inadvertently abuse the rights of other individuals or other groups of persons. Such is the position that this court finds itself in the instant Petition; we are tasked with the making of a determination on the rights of the petitioners against those of the 1st respondent; to determine whether the State took an active positive role in ensuring that the fundamental rights and freedoms of all the parties concerned in this instant matter were protected and that in so doing, there was no abuse of the rights of the parties and thus, that the State’s negative obligation not to abuse or violate these rights and fundamental freedoms was carried out.
55.
In the above context, like the High Court, we are certain that the following facts are uncontested:
i.
The petitioners were forcefully evicted from the suit property by the 1st respondent with the assistance of police officers from Langata Police Station and alongside M/s Kindest Auctioneers.
ii.
While the eviction was purportedly carried out using distress for rent orders issued in Milimani Chief Magistrate’s court Misc. Application No.303 of 2013 directed at the 4th petitioner and one, Milcah Wanjiru, the 1st respondent denied knowledge of such orders and in any event, distress for rent orders are not akin to eviction orders. In effect, the eviction was carried out without a lawful court order.
iii.
Whereas the 1st respondent indicated in evidence that it had made prior attempts to remove the petitioners from the suit property, no evidence was tabled to show that prior to the eviction in issue, any notice or adequate notice was given to the petitioners.
iv.
Whereas the ten (10) named petitioners in their Petition before the High court clearly indicated that they were suing on behalf of 326 other adult persons plus 90 children and their names and other details annexed to the affidavit in support of the Petition, no serious contestation was made of that fact and the issue hardly attracted the attention of both courts below, the same must be said of the list of elderly persons similarly annexed.
56.
With the above facts in mind and noting our findings above, like the High Court, we are of the firm view that the eviction of the petitioners was violent and did not accord with the expected constitutional obligation of the State to ensure that those in informal settlements are treated with the dignity that is conferred on article 28 of the Constitution. Granted, the petitioners were evicted when the 1st respondent had already acquired certain private rights over the suit property but they entered the land well aware of the presence of the petitioners who occupied the land when it was still public land. Even without prescriptive rights, we stated in Mitubell Welfare Society v Kenya Airports Authority, SC Petition No 3 of 2018 (Mitubell) only recently, that “where the landless occupy public land and establish houses thereon, they acquire not title to the land, but a protectable right to housing over the same”. In the present case, the participation of State agents in violent evictions only points to the fact that the 1st respondent ultimately acquired favoured status outside the law in acquiring ultimate and total control of the suit property at the cost of violation of the rights of the petitioners including the elderly and children.
57.
In Satrose Ayuma (supra), the High court laid out certain principles that an evicting party must comply with. The court, in doing so, applied international principles of law later clarified by this court in Mitubell and which were crystallised as law in section 152(A) – (H) of the Land Act. We reiterate that these principles were applicable to the eviction of the petitioners as a matter of obligation by the State under international law as provided for in articles 2(5) and 2(6) of the Constitution.
58.
The principles include the duty to give notice in writing; to carry out the eviction in a manner that respects the dignity, right to life and security of those affected; to protect the rights of women, the elderly, children and persons with disabilities and the duty to give the affected persons the first priority to demolish and salvage their property. These principles flow from UN Guidelines on Evictions: General Comment No 7 which in Mitubell, we stated, are “intended to breathe life into the Right to Dignity and Right to Housing under the ICCPR and ICESCR respectively”.
59.
It is our finding in that context that the learned Judge was correct in finding that “it is redundant to ask whether the eviction of the petitioners resulted in a violation of their rights under the Constitution. Even the ordinary man in the street, confronted with the facts before [her], would answer the question in the affirmative”. We so affirm.
b. Whether the court of Appeal misinterpreted and misapplied the provisions of article 21 of the Constitution on the doctrine of progressive realization of rights.
60.
The 2nd – 4th respondents have intimated that the rights of the petitioners, applied generally, are rights that fall under the ambit of the progressive realization principle under article 21(2) of the Constitution which provides that;
“The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under article 43”. [Emphasis added]
61.
In General Comment No 3 of the CESCR, the term progressive realization is defined thus;
The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly from that contained in article 2 of the International Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources. [Emphasis ours]
62.
The Court of Appeal, whose Judgment embodied the generalities of the doctrine of progressive realization as pronounced in General Comment No 4 of the CESCR, correctly held that it was the responsibility of the State to ensure that the rights guaranteed in article 43 of the Constitution are realized progressively. The obligation to ensure the rights of petitioners under article 43 thus fell on the State, and that the State is imbued with the duty to ensure that these rights were realized, in consideration of prevailing circumstances such as the availability of resources, or the implementation of policy and structural programs to ensure that the rights are realized.
63.
This court has previously addressed its mind to the principle of progressive realization of rights when in Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate SC Advisory Opinion No.2 of 2012; [2012] eKLR, and in making a distinction between progressive and immediately realizable rights, we emphasized on the context in which the rights are pronounced within the Constitution. We stated thus, inter alia;
“This leads us to the inference that whether a right is to be realized “progressively” or “immediately” is not a self-evident question: it depends on factors such as the language used in the normative safeguard, or in the expression of principle; …it depends on the nature of the right in question …” [Para 59]
64.
From the foregoing, it is manifestly evident in the present context that the mandate to ensure the realization and protection of social and economic rights does not extend to the 1st respondent, a private entity. Even though the 1st respondent has a negative obligation to ensure that it does not violate the rights of the petitioners, it is not under any obligation to ensure that those rights are realized, either progressively or immediately. The court of Appeal thus correctly held that the progressive realization of article 43 rights was the mandate of the State, and that obligation does not extend horizontally to private entities. We hasten to add however, that private entities have the obligation, under article 20(1) not to violate article 43 rights as non-violation of all rights in the Bill of Rights applies both horizontally and vertically and binds both the State and all persons. We so find.
d. Whether the court of Appeal erred in interpreting article 23 of the Constitution specifically on the available remedies once a court has determined that there were violations of rights.
65.
The petitioners argued that the Court of Appeal erred in reversing the judgment of the High Court in which they had been awarded damages in addition to the declarations that had been issued. They contend that the award of damages in constitutional issues was correctly made by the High Court, relying on the provisions of article 23 of the Constitution. In arriving at its determination on the question of damages, the learned Judge of the High Court rendered herself as follows:
“The petitioners have also sought general and exemplary damages for violations of their fundamental rights. In light of my findings above, I believe that they are entitled to damages for the said violations. An award of damages will not make up entirely for the violation of the petitioners’ rights, nor for the disruption of their lives and the affront to their dignity that the acts of the respondents occasioned. However, it will hopefully serve as a reminder to the 1st respondent that it is not so privileged as to have an unfettered right to violate the rights of the poor.
With regard to the State, it is important for its officers to remember that its cardinal duty and the duty of all its officers is to safeguard the rights of all, without discrimination, but particularly so, the rights of the vulnerable in society, the poor, children, the elderly and persons with disability. Its officers should never be used to carry out the unlawful acts of any citizen, however powerful.
The 1st respondent is the author of the unlawful acts that led to the violation of the petitioners’ rights. The State, through the National Police Service, chose to aid the 1st respondent against the interests of the petitioners, poor marginalized residents of the two informal settlements. In the circumstances, I believe that they should bear liability for the violation of the petitioners’ rights.” [Paras 88-90]
66.
The Court of Appeal, on its part, overturned this decision holding that there wasn’t sufficient evidence that was presented before the court to enable it evaluate the damages that would adequately compensate the petitioners. The court went on to hold that;
“Whereas the High court, whilst granting relief, was exercising its constitutional jurisdiction to uphold or vindicate a constitutional right that it found had been contravened, in awarding compensation for the specific damage that the evictees claimed they had suffered, the court should have inquired into the nature of such loss. If necessary, the evictees should have been granted an opportunity to prove the damage and for the appellant and the State to test the evictees claims.” [Para 68, emphasis added]
67.
The Court of Appeal rationalized the disturbing of the award of damages by the High court as follows;
“There was clearly no evidence before the Judge to assist the court in assessing the amount of appropriate compensation. We hold that, in the circumstances of this case, it was incumbent upon the evictees to place material before the court on the basis of which the court would undertake an enquiry to ascertain the extent of loss so as to arrive at a reasonable amount.” [Para 72]
68.
The justification by the Court of Appeal for disturbing the award was therefore, that the petitioners did not present to the trial court sufficient evidence of the loss incurred and suffered for the court to make a fair assessment and determination on the quantum of damages to award. The court relied on the decision in Butt, where the court had held that an appellate Court could disturb an award of damages if it was established that a trial Judge proceeded on a wrong principle, or misapprehended the evidence in some material manner to arrive at a figure which was inordinately low or high.
69.
Although the Court of Appeal concedes that it was within the mandate of the trial court to make an order for the award of damages for constitutional violations against the petitioners by the respondents, it did not however, show how the award, as issued, went against the provisions of article 23(3) of the Constitution. In Butt, decision which formed the basis for their decision to disturb the award of damages, the rationale that was enunciated therein was that it had to be shown or established that the Judge proceeded on the wrong principle or misapprehension of the evidence to arrive at a disproportionate award.
70.
In our considered view, there was sufficient evidence that was presented before the trial court which enabled it to arrive at the decision that it did. With regard to the 1st respondent, they admittedly stated that they had participated in, and engaged with the 2nd respondent in the unlawful and illegal demolition of property belonging to and eviction of the petitioners from the suit property. The evidence presented before the trial court was that the demolition and evictions were carried out without lawful court orders, that the evictions and demolition were carried out in a manner that violated the petitioners’ right to human dignity and security, and that there was a violation of their rights to exercise and enjoy social and economic rights pronounced under article 43, as read together with articles 53 and 57 of the Constitution.
71.
The Court of Appeal in disturbing the award of damages issued by the trial court did not also show how the court abused its discretionary powers to award damages, or that the court exercised its discretion whimsically or capriciously. In Gitobu Imanyara, the court of Appeal had earlier held that;
“In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”
In the same matter, the appellate court also held that an appellate court should not disturb an award of damages on the mere notion that if it had tried the matter in the first instance, it would have awarded differently. The question therefore should not have been what it would have awarded, but rather whether the trial court had proceeded on the wrong principle. (See generally Loice Wanjiku Kagunda v Julius Gachau Mwangi Civil Appeal No 142 of 2003).
72.
Furthermore, in Kemfro Africa Kneller JA held that;
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.” [Emphasis added]
73.
We agree with the learned Judge and would add that, what the court of Appeal failed to consider, in our opinion, was that the questions and issues that a court has to consider in order to make an award of damages with regards to constitutional violation is manifestly different to what the court would consider in say, tortious or civil liability claim. In the latter, the issues are clear cut and quantification of the appropriate award is in most instances, straight forward. The same, however, is not true of constitutional violation matters, such as the instant one. Quantification of damages in such matters does not present an explicit consideration of the issues; other issues such as public policy considerations also come into play. A court obligated and mandated in evaluating the appropriate awards for compensation in constitutional violations does not have an easy task; there is no adequate damage standard that has been developed in our jurisprudence that recognizes that an award for damages in constitutional violations is quite separate and distinct from other injuries. In this regard, the court of Appeal was unclear of what other material that the petitioners needed to present before the trial court to establish that there was a violation of their constitutional rights by the respondents, and that the court therefore abused its discretionary powers in issuing the award of damages. In the event and following our reasoning in Martin Wanderi & 106 Others v Engineers Registration Board & 10 others, SC Petition No 19 of 2015 [2018] eKLR we must overturn the appellate court’s decision on this issue.
d. A brief commentary on the state of affairs with regard to realization of article 43 rights
74.
Before we render our final determination in the instant matter, we must revisit the pronouncement made by Mutunga, CJ (as he then was) in Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate SC Advisory Opinion No 2 of 2012; [2012] eKLR where he stated that;
“It is true the Constitution will present the courts with inconsistencies, grey areas, contradictions, vagueness, bad grammar and syntax, legal jargon, all hallmarks of a negotiated document that took decades to complete. It reflects contested terrains, vested interested that are sought to be harmonized, and a status quo to be mitigated. These features in our constitution should not surprise anybody, not the bench, or the bar or the academia. What cannot be denied, however, is we have a working formula, approach and guidelines to unravel these problems as we interpret the Constitution. We owe that interpretative framework of its interpretation to the Constitution itself.”
[Para 9.2, dissenting opinion, emphasis added]
75.
We completely agree and it is indeed a sad state of affairs that ten (10) years into the promulgation of the Constitution in 2010, the State still seeks to rid itself of its mandate and obligations by hiding behind the perceived inconsistencies sometimes presented in the Constitution, and in the present context, the provisions of article 21(2) of the Constitution, and to abdicate its role in ensuring that article 43 rights are realized. article 21(2) does not protect the State from realizing these rights, but rather seeks to ensure that even though these rights are not immediately achieved, there is at least some modicum of effort by the State to realize those rights. There should be continued concerted efforts by the State in the progressive realization of these rights and therefore, the State should take deliberate steps, both immediately and in the future, towards the full realization of the rights.
76.
Policy and legislative formulation and lack of adequate resources have been the reasons given by the State in the realization of article 43 rights. It is evidenced as such; in October 2009, the Ministry of Lands formulated the Eviction and Resettlement Guidelines, which provided that forced evictions were not only illegal and unjust, but also counterproductive to economic growth and development. The guidelines also provided for insights and procedures on how to deal with the issue of evictions and resettlement by the State, noting that the State was under an obligation to provide alternative resettlement to those that had been evicted.
77.
Further on in 2012, a Bill was presented in the National Assembly titled the Evictions and Resettlement Procedures Bill No 44 of 2012. The Bill has never gone past the 1st Reading – on September 12, 2012. The Senate also introduced the Preservation of Human Dignity and Enforcement of Economic and Social Rights Bill No 27 of 2018. The Bill proposes that each County should have an integrated development plan and to establish mechanisms to monitor and promote adherence to article 43 of the Constitution. It has not gone past the 1st Reading – on September 25, 2018. These may be just some of the few, if not only, legislative and policy structures that the State has sought to come up with in the past few years.
78.
The above notwithstanding, few amendments have been made to land laws, and in particular the Land Act, through the Land Laws (Amendments) Act No 28 of 2016, which amended sections 152 of the Land Act, to include provisions for the procedures of eviction of illegal settlers in both public and private land. Those amendments were made following the decision of the High court in Satrose Ayuma and indeed the language of the amendments to section 152(A)-(G) is borrowed directly from that decision. Although the State may therefore seem to be at the forefront in the realization of article 43 rights, more is yet to be done, especially in the realization aspect. As for the enforcement of these rights, nothing much can be achieved if the legislative and policy processes are still at the nascent stage.
79.
These acts by the State may be regarded and considered by some, as acts of regression, which end up depriving the people of the rights that they should be enjoying. They are a contradiction to the progressive realization principle and constitute a violation of those rights. These acts, unless they are limitations to the realization of those rights which are justifiable and reasonable in accordance with article 24(1) of the Constitution, are counter-intuitive to the realization of social economic rights under article 43 of the Constitution. The State has to take a more drastic and purposive approach to its mandate and obligations in ensuring that the rights to the people of Kenya are not violated, or in the very least, that these rights are not deprived or denied. We say no more.
E. Determination
80.
In consideration of the foregoing, it is our considered view that there was a violation of the petitioners’ rights by the respondents in the manner expressed above and issue orders are follows;
i.
A declaration that the demolition of the petitioners’ houses and property and their forced eviction by the 1st and 2nd respondents without a valid court order is a violation of their fundamental right to inherent human dignity and security of the person guaranteed under articles 28 and 29(c) of the Constitution;
ii.
A declaration that the demolition of the petitioners’ houses and property and their forced eviction by the 2nd and 3rd respondents is a violation of their fundamental right to inherent human dignity, security of the person, and to accessible and adequate housing guaranteed under article 43 of the Constitution;
iii.
A declaration that the demolition of the petitioners’ houses and property and their forced eviction by the 2nd and 3rd respondent is a violation of the fundamental rights of children guaranteed under article 53 of the Constitution; and
iv.
A declaration that the demolition of the petitioners’ houses and property and their forced eviction by the 2nd and 3rd respondent is a violation of the fundamental rights of elderly persons guaranteed under article 57 of the Constitution.
81.
We furthermore affirm the orders issued by Mumbi Ngugi, J (as she then was) at the High court on the award of damages, and set aside the Judgment of the court of Appeal in that regard. For the avoidance of doubt, we order that;
v.
The 1st respondent shall pay a sum of Kenya Shillings One Hundred and Fifty Thousand (Kshs 150,000) to each of the petitioners;
vi.
The State shall pay a sum of Kenya shillings One Hundred Thousand (Kshs 100,0000) to each of the petitioners;
vii
The petitioners shall also have costs thereof.
82.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/50/eng@2021-07-16
Petition 37 of 2019,Pati Limited v Funzi Island Development Limited & 4 others (Petition 37 of 2019) [2021] KESC 29 (KLR) (16 July 2021) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,Pati Limited v Funzi Island Development Limited & 4 others,[2021] KESC 29 (KLR)               ,,"Brief facts
A dispute arose when the Commissioner of Lands, for and on behalf of the County Council of Kwale allocated land to the appellant while the 1st to 3rd respondents contended that it was forest and public land. At the High Court the 1st to 3rd respondents sought orders of certiorari to set aside the land allocation and orders of prohibition to prevent the appellant from engaging in dealings with the land. The 4th and 5th respondents argued that the land was trust land and the legal procedures relating to its allotment under the Trust Land Act had been complied with. 
An issue was raised as to whether the 1st to 3rd respondents had locus standi. On the issue of locus standi the court held that it was the minister in charge of forests that could challenge the allocation. The High Court dismissed the application. It stated that the 1st to 3rd respondents did not prove that the land was forest land. The decision of the High Court on the issue of locus standi, on whether the land was trust land or forest land, and on whether the legal requirements for allotment of the land had been complied with, was challenged by the 1st to 3rd respondents at the Court of Appeal. The appeal at the Court of Appeal was allowed and an order quashing the allocation of the suit land to the appellant was granted. Aggrieved, the appellant appealed to the Supreme Court.","D. Analysis
42.
The central issue for determination in the petition before court is the legal status of the suit land. The appellant argues that the suit land is not a forest reserve, as Proclamation No. 44 of 1932 relied on by the 1st to 3rd respondents to contend that the suit land was a mangrove forest, ceased to have effect after the Forests Act (cap 385, Laws of Kenya) came into effect and omitted the content of the Proclamation.
43.
The 4th and 5th respondents argue that no conclusive evidence had been placed on record to show that the suit land was part of a mangrove forest reserve. It is urged that the same is Trust land within the meaning of sections 114(1) and 115(1) of the retired Constitution as read with section 2 of the Trust Land Act, cap 288 of the Laws of Kenya (repealed). They add that the suit land was vested in the Council by virtue of section 115(1) of the retired Constitution and that the Council had jurisdiction to set aside and alienate it.
44.
The 1st to 3rd respondents on the other hand, urge that the suit land was at all times a mangrove forest and not trust land. They rely on the provisions of the Forest Ordinance cap 176, Proclamation No 44/32 and Kenya Independence Order-in-Council Legal Notice No 174 of 1964, to urge that the suit land was declared a mangrove forest protected under the Forest Act. The respondents further rely on the sworn affidavit of Charles Kariuki, the Forests Officer at Buda Forest Station at Msambweni, to urge that the suit land is a protected forest area, declared in Legal Notice No 174 of 1963 and Proclamation No 44 of 32. It is added that the Proclamation was made under the Forests Ordinance cap 176 (1948) which has not been repealed to date.
45.
In the alternative, the respondents urge that, even if the court was to find that the suit land was indeed trust land, which the council had authority to alienate, the alienation was irregular. It is contended that contrary to section 7 of the Trust Land Act, cap 288, Laws of Kenya (repealed), the suit land was not surveyed and no Notice of the date for applications for compensation was given. It is also the respondent’s argument that the Letter of Allotment refers to the un-surveyed land as comprising approximately 0.7 of a hectares, while the land eventually allocated was 3.126 hectares, which is ultra vires the provisions of section 7(2)(a) and (3) of the Trust Land Act. It is also contended that since Gazette Notice No. 3831 of 1994 did not specify the date for submission of applications for compensation, none were consequently made. A further ground relied on to support the assertion that the land was irregularly allotted, is that only land registered under the Registered Land Act cap 300, Laws of Kenya (repealed), would, by dint of section 2(d) thereof, be available for setting aside by virtue of sections 117 and 118 of the former Constitution. The respondents urge that the Grant in this case was issued under the Registration of Titles Act (repealed), which has no similar provision. It is urged that contrary to the provisions of Gazette Notice No 3831 of 1994, and the conditions on Grant No 106, the suit land has not been put to use for the purpose for which it was allocated, that is, as a boat landing base, but instead, the appellant has constructed a five-star hotel on it for individual commercial gain.
(a) Forest or Trustland?
46.
For us to determine the legal status of the suit land herein, we have to revisit the laws relied upon by the parties in support of their divergent submissions.
47.
The Forests Ordinance cap 176 was enacted to amend and consolidate the law relating to Forests in Kenya. Section 4 of the Ordinance provided that;
“
The Governor-in-Council may from time to time, by proclamation in the gazette, declare any unalienated and unreserved Crown Land and, subject to the provisions of the Natives Lands Trust Ordinance, any area in any native land to be forest area and may in like manner declare that any forest area or any part thereof shall cease to be a forest area.""
Further, section 5 provided that:
“
The Governor-in-Council may from time to time, by proclamation in the gazette, declare any forest area or any part thereof to be a demarcated forest.""
48.
By Proclamation No 44 of 1932, mangrove swamp forest reserves were declared as follows;
“
‘All land between high water and low water marks (ordinary spring tides) in the localities as described below, viz on the mainland and islands adjacent to the coast from Chale Point in the North, to the boundary of the Trust Territory of Tanganyika in the South.
Provided that any areas that lie within the foregoing boundaries which may have been, or may be, declared private property under Crown, are excluded from the forest reserves.""
49.
Subsequently, Legal Notice No 174 of 1964 was issued by the then Minister for Natural Resources, in consultation with the then National Forest Authority, declaring all central forests situated in various districts in Kenya. It is worth noting that the Legal Notice makes pointed references to various Proclamations made between 1932 to 1960s, declaring various pieces of land central forest areas in Kenya.
50.
In this legal notice, Mangrove swamp forests in Mombasa, Kwale, Lamu and Kilifi Districts were declared as comprising;
“
Those pieces of land approximately 111.366 acres, situated between the high and low water marks on the coast of Kenya, which were declared to be forest areas by Proclamation No 44 of 1932.""
51.
The Forest Act cap 385 was enacted in 1942 and revised last in 2012. It was an Act of Parliament to provide for the establishment, control and regularization of central forests, forests and forest areas in the Nairobi area and on unalienated Government land. Section 4 of the Act provided that;
“
The Minister may from time to time, by notice in the gazette declare any unalienated Government land to be a forest area; declare the boundaries of a forest and from time to time alter those boundaries and declare that the boundaries shall cease to be a forest area……""
52.
In its subsidiary legislation, the Act provides that, ‘all proclamations under section 4 are omitted, by virtue of section 5 of the Revision of the Laws Act section 5 of the Revision of the Laws Act cap 1 provides as follows;
‘There may be omitted from Laws of Kenya–
a.
Annual appropriation Act
b.
Specific loan or specific loan guarantees Acts
c.
Any act which, in the opinion of the Attorney-General, is-
i.
of temporary effect; or
ii.
of local or limited application; or
iii.
of application only to a time past
d.
Any Constitution of Kenya (Amendment) Act or provisions in such Act which does not become incorporated in the Constitution;
e.
Any Act which in the opinion of the Attorney General ought to be temporarily omitted by reason of-
i.
proposed substantial amendment to the Act or subsidiary legislation made thereof; or
ii.
the proposed making of a substantial quantity of new subsidiary legislation thereunder;
iii.
the Act in question not yet being in force at the time of a given revision
53.
The Forest Act cap 385, Laws of Kenya was repealed by the Forest Act No 7 of 2005 while the latter was repealed by the Forest Conservation and Management Act No 34 of 2016.
54.
The appellant relies on the provisions of the Forest Act, cap 385 as read with its Subsidiary Legislation and section 5 of the Revision of Laws Act, set out above, to urge that Proclamation No 44 of 1932 ceased to have effect after the enactment of the Forest Act cap 385, as the latter omitted the content of the Proclamation. However, it should be noted that Proclamation No 44 of 1932 was not made under the Forest Act cap 385. The Proclamation was made under the Provisions of the Forests Ordinance Cap 176, which is not one of the laws repealed by the Forest Act cap 385, the Forest Act No 7 of 2005 or the Forest Conservation and Management Act No 34 of 2016. Of significance, is the fact that the Minister, never degazetted the suit land as a mangrove forest. A clear reading of section 5 of the Revision of Laws Act, leaves no doubt that Proclamation No 44 of 1932 could not have formed part of the contents of that which was omitted by section 4 of the Forests Act, cap 385 of the Laws of Kenya.
55.
Besides, the Forests Act No 7 of 2005 at section 65 and the Forest Conservation and Management Act No 34 of 2016 at section 77, provide (d) that, notwithstanding the repeal of the preceding Act, ‘any land which, immediately before the commencement of the subsequent Act was a forest or nature reserve under that Act, shall be deemed to be a state or local authority forest or nature reserve, as the case may be, under the succeeding Act.’ Section 77 of the Forest Conservation and Management Act specifically sets out that all gazetted or land registered as a forest reserve in its Third Schedule or under any other relevant law shall be deemed to be a public forest under the Act. The Third Schedule identifies mangrove swamp forests as land declared under Notice No 44 of 1932. Although the word ‘Proclamation’ is not used, we have no doubt that the ‘Notice’ referred to, can only be “Proclamation No 44 of 1932”. The conclusion to which we must therefore arrive, is that the legal status of mangrove forests as declared in Proclamation No. 44 was saved by the Third Schedule of the Forest Conservation and Management Act.
56.
Having so found, the next issue that we must determine is whether, the suit land falls within the frontiers identified in Proclamation No 44 of 1932. The Proclamation describes a mangrove forest as;
“
All land between high water and low water marks (ordinary spring tides) in the localities as described below, viz …..on the mainland and islands adjacent to the coast from Chale Point in the North, to the boundary of the Trust Territory of Tanganyika in the South.""
57.
The 1st to 3rd respondents urge that the suit land is between the high and low watermarks and is therefore, a mangrove forest. The appellant disputes this assertion. However, at paragraph 13 of the affidavit sworn by its Managing Director, Alessandro Torriani on January 13, 1995, a concession is made of the fact that ‘the suit land floods and becomes completely submerged only at very high tides about twice a year.’
58.
The status of the suit land is first and foremost a matter of law and as declared in Proclamation No 44 of 1932, and subsequently in Legal Notice No 174 of 1964, the said land is situated between the high and low water-mark on the Coast of Kenya. The inescapable conclusion is that the suit land falls within the frontiers of what constitutes a mangrove forest as per the Proclamation. The same could therefore, not have been available for allocation within the meaning of the retired Constitution or the Trust land Act. This was a mangrove forest which has never ceased to be such, not because (as submitted by the first respondent, and wrongly so in our view) the Ordinance under which the Proclamation creating it is still part of the Law of Kenya, but because its status as a forest was saved by the 20 of 2016 Forest Conservation and Management Act.
(b) Was the Suit Land, Trust Land? And if so, was it legally set apart?
59.
Assuming for purposes of argument that the land in question was Trust land, we have to determine whether the same was regularly set apart, in accordance with the applicable law at the time.
Section 114(1) of the retired Constitution defined Trust land to include:
(a)
land which is in the Special Areas (meaning the areas of land the boundaries of which were specified in the First Schedule to the Trust Land Actas in force on May 31, 1963,) and which on May 31, 1963 vested in the Trust Land Board by virtue of any law or registered in the name of Trust land board;
(b)
the areas of land that were known before 1st June, 1963 as Special Reserves, Temporary Special Reserves, Special Leasehold Areas and Special Settlement Areas and the boundaries of which were described respectively in the Fourth, Fifth, Sixth and Seventh Schedules to the Crown Lands Ordinance as in force on May 31, 1963, the areas of land that were on May 31, 1963 communal reserves by virtue of a declaration under section 58 of that Ordinance, the areas of land referred to in section 59 of that Ordinance as in force on May 31, 1963 and the areas of land in respect of which a permit to occupy was in force on May 31, 1963 under section 62 of that Ordinance; and
(c)
land situated outside the Nairobi Area (as it was on December 12, 1964) the freehold title to which is registered in the name of a county council or the freehold title to which is vested in a county council by virtue of an escheat:
Provided that Trust land does not include any estates, interests or rights in or over land situated in the Nairobi Area (as it was on December 12, 1964) that on 31st May, 1963 were registered in the name of the Trust Land Board under the former Land Registration (Special Areas) Ordinance.
60.
By virtue of section 115 of the retired Constitution, all Trust land within the jurisdiction of any County Council, is vested in the Council for the benefit of the persons ordinarily resident on that land. However, this Section excludes any body of water that immediately before December 12, 1964 was vested in any person or authority, or any mineral oils.
61.
According to section 116 of the retired Constitution, ‘A County Council could, in such manner and subject to such conditions as may be prescribed by or under an Act of Parliament, request that any law to which this subsection applies shall apply to an area of Trust land vested in that County Council, and when the title to any parcel of land within that area is registered under any such law otherwise than in the name of the County Council, it shall cease to be Trust land. The laws to which this proviso applied were; the Land Consolidation Actand the Land Adjudication Act, and any other law permitting the registration of individual titles to estates, interests or rights in or over land that, immediately before registration, was Trust land (except so far as the law permitted the registration of estates, interests or rights vested in persons or authorities for whose use and occupation the land had been set apart.
62.
In accordance with sections 117 and 118 of the retired Constitution, a County Council had the power to set apart an area of Trust land for use and occupation by a public body or for purposes specified therein. Of significance to the issue before us, is section 117(1)(c) which provided that the council could set apart an area of trust land for use and occupation by “any person or persons for a purpose which in the opinion of that county council is likely to benefit the persons ordinarily resident in that area or any other area of Trust land vested in that county council, either by reason of the use to which the area so set apart is to be put or by reason of the revenue to be derived from rent in respect thereof”. Even then, a county council could only set apart an area of Trust land pursuant to an enabling Act of Parliament, to wit, the Trust land Act. In line with sections 117 and 118 of the retired Constitution, the Trust Land Act cap 288 (repealed) was enacted, as an Act of Parliament to make provision for Trust land. Part IV of the Act provided for setting apart of Trust land.
63.
Having set out the law regulating the setting aside of trust land, and supposing the suit land in this matter was trust land, was the setting aside in accordance with the law in place at the time? The answer to this question is in the negative, due to the following uncontroverted findings of law and fact. Firstly, the gazette notice No 3831 of 1994 specified the size of the land set apart as comprising approximately 0.7 of a hectare. However, the land ultimately set apart and allocated to the appellant was 3.126 hectares. There is no further notice on record in respect of the change of size of the suit land. By the same token, the Msambweni Land Control Board, gave consent to set apart 0.7 of an hectare of land, yet there is no further consent from that Board, for the change of the acreage to 3.126 hectares. Thirdly, contrary to the requirement under section 7(3) of the Trust Land Act (repealed), Gazette Notice No 3831 of 1994 did not specify a date before which applications for compensation were to be made to the District Commissioner. Fourthly, the suit land was set apart for use as a boat landing base, (a purpose that would have benefitted the local communities ordinarily resident in the area) yet the appellant has constructed a five-star hotel on it. There is no further notice on record for change of purpose of setting aside. This is in contravention of the provisions of section 117 of the former Constitution and section 7(3) of the Trust Land Act (repealed), which required the notice of an intended alienation to specify the purpose for which the land is required to be set apart.
64.
The entire process and notice for setting apart, fell far short of the requirements of the Constitution and the law. In view of these shortcomings and our conclusion regarding the legal status of the suit land, we find no reason to upset the judgment of the Court of Appeal.
E. Orders
(i)
The petition of appeal dated September 3, 2019 is hereby dismissed
(ii)
The judgment of the Court of Appeal dated February 24, 2014 is hereby affirmed
(iii)
The appellant shall bear the costs of the appeal.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/29/eng@2021-07-16
Reference 1 of 2021,"Speaker, Nairobi City County Assembly & another v Attorney General & 3 others (Reference 1 of 2021) [2021] KESC 52 (KLR) (Civ) (16 July 2021) (Advisory Opinion)",Advisory Opinion,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,"Speaker, Nairobi City County Assembly & another v Attorney General & 3 others",[2021] KESC 52 (KLR)               ,,"Introduction
1.
This Reference was moved by the Hon. Speaker of Nairobi City County Assembly and the Clerk of Nairobi County Assembly for an Advisory Opinion under Article 163(6) of the Constitution. The Applicants, by their Reference dated 7th January 2020 and filed on even date, raise the following issues:
(i)
Whether the pronouncement of courts in various rulings is a declaration of vacancy in the respective offices and more specifically the County of Nairobi City?
(ii)
Whether the Governor of Nairobi can appoint a Deputy Governor even after being barred by a court from accessing his office?
(iii)
Whether in the absence of both the Governor and the Deputy Governor, the Speaker Nairobi City County can assume the office of Governor?
(iv)
What happens when the Speaker Nairobi County Assembly declines to assume the office of Governor County of Nairobi City?
(v)
What is the legal position regarding the absence of gazetting the resignation of Deputy Governor County of Nairobi City?
B. Background
2
On 9th March 2018, in Re Speaker, County Assembly of Embu, SC. Reference 1 of 2015; [2018] eKLR, this Court pronounced itself on the procedure for administration of the oath of office for a Deputy Governor who assumes office: under Article 182(2) of the Constitution in the event of impeachment of a County Governor, the criteria for filling the vacancy that occurs in the office of the Deputy County Governor, where the originally elected Deputy Governor assumes office as Governor after the impeachment of the Elected Governor; and the timeline within which the Deputy Governor assuming office should assume office. The Applicants contended, however, that the Court did not pronounce itself on how the office of the Governor would be filled where there is no Deputy Governor. It is on this basis the Applicants seek the advice of the Court.
3.
On 6th December 2019, the former Nairobi City County Governor was arrested by the Ethics and Anti-Corruption Commission and subsequently arraigned in court to answer charges of Economic Crimes and abuse of office. This arraignment resulted in his suspension from office. As at that time, there was no substantive Deputy Governor in office, as the holder of the said office had resigned.","D. Analysis
(i) Whether this Court has jurisdiction to render an advisory opinion?
5.
The Applicants urged that the Court has jurisdiction to entertain the Reference and issue an advisory opinion according to Article 163(6) of the Constitution for the reason that the Applicant is a holder of an office under Article 260 of the Constitution; the matter entails the filling of a vacancy of a governor with no Deputy Governor; and also, that the Attorney General did not give an opinion despite a request to do so. Contrarywise, the Attorney General submitted that this Reference fails to lay a factual basis for its institution; lacks a supporting affidavit; his opinion has not been sought; the 2nd Applicant lacks locus standi to seek an advisory opinion from the Court; matters are pending in the courts below raising similar issues; and that some issues are explicitly provided for in the Constitution.
6.
This Court’s jurisdiction to issue advisory opinions is anchored in the Constitution under Article 163(6) which stipulates as follows:
“
The Supreme Court may issue an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government”.
7.
Further, on this Court’s jurisdiction to offer advisory opinions, Section 13 of the Supreme Court Act, 2011 provides as follows:
“
An advisory opinion by the Supreme Court under Article 163(6) of the Constitution shall contain the reasons for the opinion and any judges who differ with the opinion of the majority shall give their opinions and their respective reasons”.
8.
Likewise, the Supreme Court Rules, 2020 also provide for the exercise of this jurisdiction in similar terms under Rule 50(1).
9
The criteria for determining whether a matter is proper before this Court was also set by this Court in Re Matter of the Interim Independent Electoral Commission, SC. Constitutional Application No. 2 of 2011; [2011] eKLR(Re Matter of the Interim Independent Electoral Commission) in which we rendered ourselves as follows:
“
(83)
With the benefit of the submissions of learned counsel, and of the comparative assessments recorded herein, we are in a position to set out certain broad guidelines for the exercise of the Supreme Court’s Advisory-Opinion jurisdiction:
(i)
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government”, will be determined by the Court on a case-by-case basis.
(ii)
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae.
(iii)
The Court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may if satisfied that it is in the public interest to do so, proceed and render an Advisory Opinion.
(iv)
Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the Applicant can demonstrate that the Issue is of great public importance is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the Applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial Court process.
(84)
The foregoing guidelines coincide with our conviction that the plain terms of the Constitution should be read in the broader context of its spirit and philosophy; and on that basis, applications seeking Advisory Opinion shall be resolved as necessitated by the merits of each case. In view of the practical and legal constraints attendant on Advisory Opinions, this Court will, in principle, exercise that jurisdiction with appropriate restraint”.
10.
Furthermore, in the Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate, SC. Advisory Opinion No. 2 of 2012; [2012] eKLR, at paragraph [17] and [18], we have emphasized that the exercise of this Court’s jurisdiction under Article 163(6) of the Constitution is discretionary and only deserving matters will justify the exercise of such jurisdiction.
11.
From the Reference before us, it is obvious that the Applicant seeks an advisory opinion regarding the process of filling the position of a Governor and Deputy Governor upon a double vacancy, following a court order barring a County Governor from accessing office, and in the absence of a substantive Deputy Governor following a resignation; the procedure for filling the two vacancies should a Speaker decline to assume the office of Governor, and lastly the legal position regarding the absence of gazetting the resignation of a Deputy Governor. From the foregoing issues, there is no doubt that this Reference concerns matters relating to County Government.
12.
We take note that one of the Applicants is the Speaker of the County Assembly of Nairobi, an office established under Article 178 of the Constitution. Therefore, he is a proper Applicant as provided for in Article 163(6) of the Constitution. However, the other Applicant, the Clerk of the County Assembly, unlike the Speaker, does not have the locus standi to bring a request for an advisory opinion before this Court. Consequently, the 2nd Applicant is hereby struck out of the Reference at this stage.
13.
We now come to the next question, are the issues raised herein subject of proceedings in a lower court? Although none of the participants supplied us with a list of matters pending determination before lower courts, we took it upon ourselves to go through some of the matters pending the courts below and found as follows:
(i)
The first issue, whether the pronouncement of the courts in various rulings is a declaration of vacancy in the respective offices and more specifically the County of Nairobi City, is pending determination before this Court in Petition 2 of 2020, Ferdinand Waititu Vs. Republic and in the High Court Petition No. E 312 OF 2020. Furthermore, we found that the Court of Appeal has also pronounced itself on this issue in Moses Kasaine Lenolkulal vs. Republic, Criminal Appeal No. 109 of 2019, [2019] eKLR.
(ii)
The second issue, whether the Governor can appoint a Deputy Governor even after being barred by a court from accessing his office, is pending determination at the High Court in ACEC Petition No. 1 of 2020.
14.
In Re Matter of the Interim Independent Electoral Commission, this Court underlined the circumstances under which it can offer an advisory opinion concerning a matter pending before a lower court. This Court made it clear that an Applicant must demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the Applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial court process. The word “and” is used to link the two elements, meaning that the issue pending before a court below must meet both elements. Although the Reference meets the element of “general public interest,” the two issues highlighted above do not, in our opinion, meet the second criteria, that of urgency. Consequently, we decline to exercise our discretion to entertain the two issues. The same should reach us through the normal appellate mechanism set out in the Constitution.
15.
On the third issue, whether in the absence of both the Governor and Deputy Governor, the Speaker City County Assembly can assume the office of Governor? Article 182(4) of the Constitution provides that in the absence of a County Governor and that of a Deputy Governor, the Speaker of the County Assembly shall act as County Governor. Furthermore, in Re Speaker, County Assembly of Embu, SC. Reference No. 1 of 2015; [2018] eKLR, at paragraph 61, this Court held in part as follows:
“
…Where a vacancy occurs in both the offices of County Governor and Deputy County Governor at the same time, the office of the Deputy County Governor shall remain vacant until the election of a new Governor. The new Governor shall nominate a person to fill the vacancy within fourteen days after assuming office. The County Assembly shall vote on the nomination within sixty days after receiving it. For the avoidance of doubt, we hereby state that this holding shall obtain in all circumstances pursuant to which the Office of the Deputy Governor may become vacant as contemplated by the Constitution, i.e., death, resignation or impeachment.”
Consequently, given the foregoing constitutional provisions and our decision above, we see no justification for us to issue further advice on the same.
16.
On the fourth issue, what happens when the speaker of Nairobi City County Assembly declines to assume the office of Governor County of Nairobi City? We are inclined to agree with the submissions by the Attorney General that this question is hypothetical as it is yet to occur. In Re Matter of the Interim Independent Electoral Commission, this Court at paragraph [84] emphasized that given the practical and legal constraints attendant on Advisory Opinions, this Court will, in principle, exercise that jurisdiction with appropriate restraint. We shall not, therefore, exercise our jurisdiction in hypothetical situations.
17.
On the fifth issue, what is the legal position regarding the absence of gazetting the resignation of Deputy Governor of Nairobi City? It is our finding that this question can be dealt with through the advice of the Attorney General or by the courts below to reach us through the normal appellate mechanism.
E. Disposition
18.
Ultimately, based on our finding above, we decline to exercise our discretion in rendering an opinion in this matter.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/52/eng@2021-07-16
Petition 8 of 2019,Surya Holdings Limited & 2 others v CFC Stanbic Bank Limited & another (Joint receivers and managers of Karuturi Limited) (Petition 8 of 2019) [2021] KESC 51 (KLR) (16 July 2021) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,Surya Holdings Limited & 2 others v CFC Stanbic Bank Limited & another,[2021] KESC 51 (KLR)               ,,"Brief facts
The 1st and 2nd appellants were guarantors to a facility agreement between the 3rd appellant and the 1st respondent. The 3rd appellant defaulted in its repayment obligations to the 1st respondent. That led to the appointment of receivers in accordance with the power annexed to the debenture, as issued by the 3rd appellant. That appointment was challenged by the appellants at the High Court. The High Court confirmed the appointment of the receivers, but restrained them from selling the charged properties, and ordered the 3rd appellant to continue operating as a going concern in the interest of all the parties. Later on, the High Court issued winding up orders against the 3rd appellant.
The High Court in its ruling found that the appellants had made an admission that the 3rd appellant owed the 1st respondent a pre-receivership sum of US$ 4,028,194.30 and Kshs. 2,706,966.13 together with interest thereon. The High Court further directed the parties to agree on a forensic audit. The parties agreed on the auditor. The audit report was duly filed in court, and the parties addressed the court extensively on it. The High Court found that the 3rd appellant owed the 1st respondent a sum of USD 4,028,194.30 and Kshs. 2,706,994.13, together with contractual interest as contained in the facility agreement executed between the 3rd appellant and the 1st respondent, being the pre-receivership debt.
Aggrieved the appellants filed an appeal before the Court of Appeal. The Court of Appeal found that the orders granted by the High Court did not constitute a wrong exercise of judicial discretion. As such, the Court of Appeal did not interfere with the orders made by the High Court and dismissed the appeal with costs to the respondents. Aggrieved, the appellants filed the instant appeal.","E. Analysis
32.
It is the 1st and 2nd respondents’ argument that there was no issue involving the right to a fair hearing before the superior courts below. In other words, it is the respondents’ case that the subject matter of this appeal did not involve issues interpretation and application of Constitution to warrant this Court’s exercise of jurisdiction under article 163(4) (a) of Constitution.
33.
Under article 163(4)(a) of Constitution, this court has jurisdiction to entertain appeals from the Court of Appeal as of right in any case involving the interpretation or application of Constitution.
34.
Section 15(1) of the Supreme Court Act makes provision for this Court’s appellate jurisdiction with regards to appeals under article 163(4)(b) of Constitution. Section (15)(2) of the same Act on the other hand provides that Sub-section (1) shall not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of Constitution. We note that this appeal is premised on article 163(4)(a) of Constitution and section 15(2) of the Act.
35.
This Court set guiding principles in the case of Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Petition No 3 of 2012; [2012] eKLR, with regard to its appellate jurisdiction under article 163(4)(a) of Constitution, where it stated that an appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of Constitution. In other words, an appellant must be challenging the interpretation or application of Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a).
36.
In the case of the Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Petition No 10 of 2013; [2014] eKLR, this Court emphasized that the appeal should have raised questions of constitutional interpretation or application, and the same has been canvassed in the Superior Courts and has progressed through the normal appellate mechanism so as to reach this Court by way of an appeal, as contemplated under article 163(4)(a) of Constitution.
37.
The same principle was affirmed in this Court’s decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC App No 5 of 2014; [2014] eKLR (Munya 1) where we stated that specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the Court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.
38.
We have perused the record of appeal and taken note that the ruling of the trial court issued on 19th January 2018, was a follow up on the ruling of the same court issued on 13 October 2016 flowing from a Notice of Motion application dated June 21, 2016, premised under order 2 rule 15(1)(a) and 9d), order 13 rule 2 of the Civil Procedure Rules, section 319 of the Companies Act, and the pleadings before the trial court confirm that Constitutional issues raised before us were never pleaded and also that the trial court did not interpret or apply the same.
39.
Furthermore, we have looked at the issue before the Court of Appeal, that is, whether the impugned orders made by the High Court on January 19, 2018 directing the appellants to make payments to the 1st respondent and in default, for the 1st respondent to be at liberty to exercise its powers of sale constituted a wrong exercise of discretion, and have come to the conclusion that the Court of Appeal, just like the High Court did not interrogate or apply any of the articles of Constitution alleged to have been violated that is, articles 25 and 50 of Constitution.
40.
This court has previously found that it lacks jurisdiction to entertain appeals from interlocutory decisions save where the interlocutory decision in question is a substantive determination of a constitutional issue that has been canvassed through the superior courts below in the cases of Daniel Kimani Njihia v Francis Mwangi Kimani & Another, SC. Civil Application No 3 of 2014; [2015] eKLR; Teachers Service Commission v. Kenya National Union of Teachers & 3 others Sc Application No 16 of 2015; [2015] eKLR; and Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others [2018] eKLR. In the Ananias N Kiragu v Eric Mugambi & 2 others [2020] eKLR. In SAJ v AOG & 2 others [2013] eKLR, this court found that its jurisdiction can only be invoked when substantive matters in the appellant’s petition have been answered.
41.
Having perused the record, more so, the amended plaint and the decision of the trial Court and that of the Court of Appeal, it is obvious to us that several issues are still pending determination before the trial court. Consequently, it is our finding that there is no substantive determination by the superior courts below of a Constitutional nature, to warrant this Court to exercise its jurisdiction under article 163(4)(a) of Constitution. Although the appellants have urged us that non-determination of Constitutional issue raised before the Court of Appeal, that is, violation of their right to be heard pursuant to articles 25 and 50 of Constitution, should form a basis for us to entertain this appeal under article 163(4)(a) of Constitution, we unanimously disagree with them. It is our finding that it would have been pre-mature for the Court of Appeal to make a finding on Constitutional issue raised since the trial court had not fully determined the rights of the parties before it.
42.
We are cognizant of a ruling of this court issued on March 22, 2019, dismissing a preliminary objection dated February 22, 2019 and a Notice of Motion dated February 25, 2019, which preliminary objection and Application contested this court’s jurisdiction in this matter. However, having listened to all the parties in the matter and re-evaluated the pleadings before us, and the record of appeal, and considering our findings herein, we are satisfied that we lack the jurisdiction to entertain the matter before us. Further, under article 163(7) of Constitution, this court is not bound by its decisions.
43.
Since costs follow the event as previously decided this court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition No 4 of 2012; [2014] eKLR, the appellant shall bear the costs of appeal in this Court.
44.
Consequently, the appeal is dismissed.
F. Orders
45.
Flowing from above, the final orders are:
i.
The Petition of appeal dated February 14, 2019 and filed on even date is hereby dismissed.
ii.
The appellants shall bear the respondents’ costs.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/51/eng@2021-07-16
Petition (Application) 4 of 2021,United Millers Limited v Kenya Bureau of Standards & 5 others (Petition (Application) 4 of 2021) [2021] KESC 72 (KLR) (Civ) (16 July 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",16 July 2021,2021.0,Nairobi,Civil,United Millers Limited v Kenya Bureau of Standards & 5 others,[2021] KESC 72 (KLR)               ,,"Brief facts
At the High Court, the applicant filed judicial review proceedings to quash a decision not to release sugar for sale and to condemn it for destruction. The sugar failed the yeast and mold test when tested against the KS EAS 749:2010 Brown Sugar - Specification. The High Court dismissed the application on grounds that available statutory remedies had not been exhausted and the applicant's case did not fall within the exceptions to the doctrine of exhaustion. In the alternative, the High Court held that it was not demonstrated that the 1st respondent's decision was tainted with illegality. On appeal, the Court of Appeal upheld the High Court's determination and reasoning.
The applicant filed an appeal at the Supreme Court. The applicant also filed an application that sought conservatory orders or in the alternative a stay of the Court of Appeal judgment pending hearing and determination of the substantive appeal before the Supreme Court.
The 1st respondent stated that the petition did not raise matters of constitutional interpretation or application and that the Supreme Court's jurisdiction had not been invoked properly. The 1st respondent added that it would be futile for the court to grant any orders as the quality of the sugar had deteriorated further and it could not be released for public consumption. The 1st respondent also said that the application could not be entertained as there was no proper appeal before the court.","D. Issues For Determination
15.
On the basis of the pleadings and submissions by the Parties herein, we consider that only two issues merit our determination:
i.
Whether this Court has jurisdiction under Article 163(4)(a) of the Constitution to hear and determine Petition No. 4 of 2021 and consequently the instant application; and
ii.
Whether the orders sought in the application can issue.
E. Analysis
16.
The Court’s jurisdiction to hear and determine this application and the main appeal has been challenged by the 1st respondent. Citing the Lawrence Nduttu Case, it urges that there is nothing of constitutional interpretation and/or application in the main appeal to warrant invocation of this Court’s jurisdiction under Article 163(4)(a) of the Constitution. It also urges that the applicant has failed to seek certification to warrant exercise of jurisdiction under Article 163(4)(b) of the Constitution. Consequently, the 1st respondent urges the Court to dismiss the instant application on grounds that it is incompetent, lacks legal basis and offends the provisions of Section 31 (2) of the Supreme Court Rules, 2020 which requires that an interlocutory application shall not be originated before a petition of appeal is properly filed with the Court.
17.
It is the applicant’s contrary contention that the petition raises fundamental constitutional issues, specifically the effectiveness and relevance of the protection afforded by Article 47 of the Constitution and the FAA Act, the exhaustion of alternative remedies under Article 159 (2) (c) of the Constitution, and the legality of an amorphous Executive multi-agency body operating on the basis of undisclosed legally unfounded protocols. It contends that the Court of Appeal erred in law in its interpretation and application of the Constitution and the FAA Act. It also argues that the 1st respondent’s impugned administrative decision is unreasonable, arbitrary, irrational, an infringement of the applicant’s right to administrative action protected under Article 47 of the Constitution, and a breach of the principle of transparency and accountability set out in Article 10 (20 (c) of the Constitution.
18.
On the issue of jurisdiction, we stated in Aviation & Allied Workers Union Kenya v. Kenya Airways & Others; SC Application No. 50 of 2014, [2015] eKLR that where a court’s jurisdiction, is objected to by any party to the proceedings, such an objection must be dealt with as a preliminary issue, before the meritorious determination of any cause. We must therefore evaluate whether Petition No. 4 of 2021 and consequently the instant application has met the set jurisdiction principles under Article 163(4)(a) of the Constitution.
19.
This Court’s appellate jurisdiction is set out in Article 163 (4) of the Constitution, in the following terms:
“
Appeals shall lie from the Court of Appeal to the Supreme Court;
(a)
as of right in any case involving the interpretation or application of this Constitution; and
(b)
in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)” [Emphasis Added]
20.
This Court is replete with jurisprudence on what amounts to a matter warranting appeal to this Court under Article 163(4)(a) of the Constitution. In the Lawrence Nduttu Case, we delineated this Court’s jurisdiction under Article 163 (4) (a) of the Constitution as follows:
“
...This Article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court. The only other instance when an appeal may lie to the Supreme Court is one contemplated under Article 163 (4) (b) of the Constitution. Towards, this end, it is not the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application.
(28)
The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163
(4)
(a).”
21.
[20] In Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others; SC Petition No. 10 of 2013, [2014] eKLR, we were emphatic that a matter that directly involves an interpretation and/or application of a particular provision of the Constitution will constitute an appeal as of right under Article 163(4)(a) of the Constitution. Subsequently, in the Munya 1 Case, the Court in determining whether it had jurisdiction under Article 163(4)(a) of the Constitution stated that:
“
The import of the Court’s statement in the Ngoge case is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the Court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.”
22
So then, does Petition No. 4 of 2021, raise issues of Constitutional interpretation and application and have the same been canvassed in the superior courts and progressed through the normal appellate mechanism so as to reach this Court by way of an appeal? We have extensively examined the record and it is apparent that Judicial Review Application No. 396 of 2018 was brought under the provisions of Sections 4, 7, 8 and 11 of the FAA Act and Order 53 Rule 3 of the Civil Procedure Rules, 2010. It was also anchored on the provisions of Article 47 of the Constitution and section 4(1) of the FAA Act, which guarantees every person the right to an administrative action, which is expeditious, efficient, lawful, reasonable and procedurally fair. Also, among the orders sought was a declaratory order that the 1st Respondent’s administrative decision, infringed the applicant’s rights under Article 47 of the Constitution and section 4 (1) of the FAA Act.
23.
In response, the 1st respondent, filed a preliminary objection challenging the High Court’s jurisdiction to entertain the judicial review proceedings pursuant to Sections 11 and 14A (4) of the Standards Act and Section 9 of the FAA Act. The Court (Mativo J) delineated two issues for determination in considering the preliminary objection: whether it was divested of jurisdiction on grounds that the suit offends the doctrine of exhaustion of statutory provided dispute resolution mechanism; and whether the ex-parte applicant had demonstrated any grounds to warrant grant of judicial review orders.
24.
On the first issue, the trial court found that the ex-parte applicant ought to have exhausted available dispute resolution mechanism before approaching it. The learned Judge therefore found that the judicial review application offended the doctrine of exhaustion of statutorily available remedies set out under Sections 11 and 14A (4) of the Standards Act and Section 9 (2) of the FAA Act, and further failed to satisfy the exceptional circumstances under section 9(4) of the FAA Act. It thus held that the application must fail. The court however did not down its tools upon making the determination that it lacked jurisdiction. It determined the second issue and found that the ex-parte applicant had failed to establish a case to warrant grant of judicial review orders.
25.
On appeal, the Court of Appeal delimited three issues for determination, namely: whether the High Court properly exercised its jurisdiction, whether it was right in invoking the principle of exhaustion, and whether it was right in finding that the substantive motion failed the threshold for grant of the judicial review. The Appellate Court upheld the trial court’s determination and entirely endorsed its reasoning. It found that the trial court in reaching its determination was guided by the need to serve substantive justice to the parties and exercised it discretion soundly and on reasonable judicial principles. The Court of Appeal opined that having failed to revert to the internal dispute resolution mechanisms provided for under Section 14A (4) of the Standards Act and Section 9 (2) of the FAA Act and having also failed to apply for exemption from this requirement as is provided for under Section 9 (4) of the FAA Act, the High Court was divested of jurisdiction to entertain the judicial review proceedings. The Court of appeal also found that having reached this conclusion on jurisdiction, the High Court ought to have downed its tools. Nonetheless, it considered the third issue and agreed with the trial court that the substantive motion failed to satisfy the grounds for grant of judicial review.
26.
Considering all the above, it is clear to us that the judicial review application before the trial Court and the subsequent appeal to the Court of Appeal were determined on a preliminary jurisdictional issue. We have previously in Peter Odour Ngoge v Francis Ole Kaparo & others; SC Petition No. 2 of 2012, [2012] eKLR, emphasized the significance of respecting the hierarchy of the judicial system, as one of the principles guiding the exercise of our jurisdiction under Article 163 (4) (a) of the Constitution. From the foregoing, we find no difficulty in concluding that the issues before the High Court as well as the Court of Appeal did not either involve the interpretation and application of the Constitution or take a trajectory of Constitutional interpretation or application. While issues of constitutional interpretation and application had been raised in the substantive application for Judicial Review, they were nipped in the bud when the preliminary objection was upheld for failure to exhaust the statutory alternative dispute resolution mechanisms.
27.
We also take judicial notice that the superior courts’ findings on jurisdiction is in harmony with our finding in Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others; SC Petition No 3 of 2016, [2019] eKLR, wherein we stated that, even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute. We emphasized that where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their Jurisdiction conferred by the constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance.
28
In view of the reasons tendered, we find that this Court has no jurisdiction to hear and determine Petition No. 4 of 2021 or the instant application for conservatory or stay orders.
F. Orders
29
Consequently, we make the following orders:
i.
The Petition of Appeal No. 4 of 2021 dated 23rd February 2021 and filed on 25th February 2021, is hereby struck out for want of jurisdiction;
ii.
The Notice of Motion dated 4th March 2021 and filed on 16th March 2021, is hereby dismissed; and
iii.
The Petitioner/applicant shall bear the 1st respondent’s costs.
30.
It is accordingly ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/72/eng@2021-07-16
Petition 5 of 2018,Waiguru & another v Karua & 2 others (Petition 5 of 2018) [2021] KESC 38 (KLR) (16 July 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola,                                                                                                                          N Ndungu",16 July 2021,2021.0,Nairobi,Civil,Waiguru & another v Karua & 2 others,[2021] KESC 38 (KLR)               ,,"Brief facts
The applicants filed Petition No. 5 of 2018: Anne Mumbi Waiguru & another v Martha Wangari Karua & 2 others (Petition of Appeal No. 5 of 2018) seeking to challenge the Court of Appeal’s judgment in Nyeri Election Appeal No. 1 of 2017. The appellate court had allowed the 1st respondent’s appeal against a High Court judgment which struck out her petition challenging the election of the 1st applicant. The Court of Appeal remitted the petition to the High Court and ordered the High Court to hear it on merit. The parties to the instant application by consent agreed to withdraw Petition No. 5 of 2018. Later, the Deputy Registrar directed the applicants to file written submissions on costs and a formal notice of withdrawal.
The applicants in the instant application sought among others orders that a declaration be issued that the issues raised in Petition No. 5 of 2018 were fully determined by the instant court in its judgment delivered on August 6, 2019, in Petition No. 3 of 2019: Martha Wangari Karua v Independent Electoral and Boundaries Commission & 3others (Petition No. 3 of 2019).
According to the applicants, the main issue for determination was whether the High Court had jurisdiction to hear and determine the 1st respondent’s election petition after the lapse of six months. The applicants urged that that issue was determined by the High Court, the Court of Appeal and by the instant court in Petition No. 3 of 2019. The applicants submitted that the issues raised were the same as those raised in Petition No. 3 of 2019 and were fully determined. The 1st respondent submitted that although there was a similarity in some of the issues, an appeal could not be determined by way of an interlocutory application unless such an application contested its competency which was not the case in the instant application.","C. Issues for Determination
16.
Against this background, we identify the following two issues for determination:
i.
Whether the issues herein were fully determined in petition No. 3 of 2019? In other words, whether the issues herein are res judicata?
ii.
If the answer to (i) is in the affirmative, who should bear the costs herein?
D. Analysis
i. Whether the issues herein are Res Judicata?
17.
Counsel for the applicants urge us that the main issue for determination herein, on whether the High Court has jurisdiction to hear and determine the 1st respondent’s election petition after the lapse of the six months prescribed by article 87(1) of the Constitution and section 75(2) of the Elections Act, was determined in Petition No. 3 of 2019. On the contrary, the 1st respondent submits that although there is similarity in some of the issues, an appeal cannot be determined by way of an interlocutory application. The 1st respondent, on one occasion, seeks an opportunity to have the appeal fully determined despite an admission that some issues have been determined in Petition 3 of 2019. On another occasion, she seeks an opportunity to apply for the dismissal of the petition for want of prosecution.
18.
From the petition of appeal, it is not in doubt that the following questions are placed before this court for determination: whether there exists a relationship between article 87(2) of the Constitution and rule 8(1) of the Election Petition Rules which relationship goes to the jurisdiction to hear and determine an election petition; whether non-compliance with rule 8(1)(c) and (d) of the Election Petition Rules is a mere technicality curable under article 159(2) (b) of the Constitution; Does the direction of the Court of Appeal violate the provisions of section 75(2) of the Elections Act as read with article 87(1) of the Constitution; and was it lawful for the Court of Appeal to disturb the discretionary award of costs in the High Court?
19.
In Petition No 3 of 2019, this court deduced the following issues for determination: whether the 1st respondent had properly invoked this court’s jurisdiction under article 163(4)(a) of the Constitution; whether the proceedings before the High Court were a nullity, and if so, what were the consequences thereof? whether the 1st respondent’s right to fair hearing and trial was violated by the respective findings of the trial court and the Court of Appeal; which party bore the burden of proof; whether the Court of Appeal properly re-evaluated the evidence before it; whether the trial court was biased against the 1st respondent; what relief should issue; and who should bear the costs of those proceedings?
20.
From this court’s proceedings before the Deputy Registrar, it is obvious to us that the applicants have for a long time intended to withdraw the appeal before us and that the 1st respondent has had no issue with the withdrawal save for costs. The 2nd and 3rd respondents are on record leaving the issue of costs for the court to determine. It is also not disputed from the 1st respondent’s submissions that there is a similarity of issues in this appeal and the issues in Petition No. 3 of 2019. The 1st respondent has not highlighted an issue in the present appeal which, in her opinion, ought to proceed to full determination. From the 1st respondent’s arguments, her only problem seems to be the procedure for terminating the present appeal and the attendant costs. It was not clear what aspect of the appeal remained pending for canvasing before this court for determination.
21.
The applicants premised their application on rule 23 of the repealed Supreme Court Rules, 2012. The said rule made provision for filing of interlocutory applications. Should the applicants’ application be struck out for relying on a repealed rule? We do not think so because, other than rule 23 of the Supreme Court Rules, 2012, the applicants also relied on section 24 of the Supreme Court Act which is in force. Counsel for the applicants has not bothered to explain why they relied on repealed rules. The foregoing notwithstanding, we are cognizant of the unique circumstances of this case, that is, the long time and judicial processes the parties have engaged themselves in, article 159(2)(d) of the Constitution, and this court’s decision in Raila Odinga & 5 Others v Independent Electoral & Boundaries Commission SC Petition No 5 of 2013; [2013] eKLR, in which we explained the flexibility of article 159(2)(d) of the Constitution and the need to determine each case on its own merits while taking into account the unique circumstances of a case. We find therefore that reliance on rule 23 of the repealed rules does not in itself make the application fatal. However, we must warn counsel to continuously keep themselves updated with legal developments to avoid recurrence of similar situations in the future.
22.
Despite indicating severally before the honourable Deputy Registrar, that they sought to withdraw the petition, the applicants did not prefer the procedure provided for under section 18 of the Supreme Court Act and rule 27 of the Supreme Court Rules, 2020. Be it as it may, we are satisfied that the issues in the Petition No 5 of 2018 were determined in Petition No 3 of 2019.
23.
Assuming that there was an issue in this petition that was not addressed by Petition No 3 of 2019, should the applicants be compelled to pursue the same? Does the applicant have the liberty to withdraw or discontinue proceedings before us? Section 18 of the Supreme Court Act provides that a party may at any time before judgment, with leave of court, withdraw any proceedings and the application for leave may be made orally. Rule 27 also gives a party the liberty to withdraw proceedings at any stage before judgment subject to any orders as to costs following such withdrawal of proceedings.
24.
Further, in John Ochanda v Telkom Kenya Ltd, SC App No 25 of 2014, Ibrahim SCJ, while considering an application for leave to withdraw a notice of appeal found that a prospective appellant is at liberty to withdraw a notice of appeal at any time before the appeal has been lodged and any further steps are taken. He also observed that the right to withdraw or discontinue proceedings or withdraw a Notice of Appeal respectively ought to be allowed as a matter of right subject to any issue of costs, which can be claimed by the respondents if any. If in the applicants' view, this court fully addressed their concerns in Petition No 3 of 2019, we cannot compel them to engage in a process they are not willing to.
25.
Having found that the issues in this Petition No. 5 of 2018 were determined in Petition No 3 of 2019, what is the consequence of this declaration? Even though the applicants did not seek further orders, we deem it fit, premised on our mandate under section 21 of the Supreme Court Act which empowers this court to issue ancillary orders, to order that this petition of appeal be deemed to have been dispensed with. This determination will bring an end to litigation, protect the parties from repetitive litigation over the same issues, save this court’s time, promote stability of judgments by reducing the possibility of inconsistency in judgments, promote confidence and predictability as persuaded by the Court of Appeal in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 others, Civil Appeal No 42 of 2014; [2015] eKLR where it demystified the rationale for res judicata.
ii. Who should bear the costs herein?
26.
According to this court’s finding in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Sc Petition No 4 of 2012; [2014] eKLR, the award of costs would normally be guided by the principle that “costs follow the event” the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. This court also observed that the vital factor in setting the preference, is the judiciously exercised discretion of the court, accommodating the special circumstances of the case while being guided by ends of justice.
27.
Concerning costs in Petition No 3 of 2019, we found as follows:
“
(58)
We also take note of the long time and the judicial processes that the parties have engaged themselves in. Equally, it is expected that huge financial resources have been spent in prosecuting and defending this matter. Yet, while the general rule is that the successful party ought to be paid costs by the unsuccessful one, where proceedings are declared to be a nullity, no party can claim success – see Paul Chen-Young v Ajax Investments Ltd & others, Jamaica Supreme Court Civil Appeal No 39 of 2006, Paras 205 and 206. Each party should therefore bear their costs in the proceedings before all the courts.”
28.
Since the parties in the present appeal are the same as were in Petition No 3 of 2019 and considering our finding that the issues herein were determined in Petition No 3 of 2019, we see no reason to depart from our finding on costs in Petition No 3 of 2019, our reasoning and finding therein apply mutatis mutandis. Consequently, each party bears its costs.
E. Orders
29.
Ultimately, we order as follows:
a.
The applicants’ notice of motion dated December 4, 2020 be and is hereby allowed.
b.
A declaration be and is hereby issued that the issues raised in Petition No 5 of 2018: Hon Anne Mumbi Waiguru & another v Hon Martha Wangari Karua & 2 others were fully determined by this honourable court in its judgment delivered on August 6, 2019 in Petition No 3 of 2019: Hon Martha Wangari Karua v Independent Electoral and Boundaries Commission & 3 others.
c.
The petition of appeal dated March 28, 2018 and filed on March 29, 2018 be and is hereby ordered dispensed with.
d.
Each party shall bear its own costs in this matter and the proceedings at the Court of Appeal.
30.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/38/eng@2021-07-16
Petition 15 & 16 of 2015,Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions),Directions,Supreme Court,Supreme Court,"MK Koome,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola,                                                                                                                          N Ndungu,                                                                                                                          W Ouko",6 July 2021,2021.0,Nairobi,Civil,Muruatetu & another v Republic; Katiba Institute & 4 others,[2021] KESC 31 (KLR)               ,,"Brief facts
The appellants were convicted of murder and sentenced to death. They were challenging the legality of the mandatory nature of the death sentence imposed by the High Court and affirmed by the Court of Appeal. They also challenged the indeterminate nature of a life sentence and asked whether the court ought to assign a definite number of years of imprisonment, subject to remission rules, which would constitute life imprisonment.
The court issued a judgment dated December 14, 2017, which stated that it could not determine the issues related to the sentence of life imprisonment as they were not canvassed before the High Court or the Court of Appeal. In its judgment, the Supreme Court found that the mandatory nature of the death sentence as provided under section 204 of the Penal Code was unconstitutional. However, that would not disturb the constitutionality of the death sentence as contemplated under article 26(3) of the Constitution of Kenya, 2010. The court ordered for the appellants' matter to be re-heard on the question of sentencing only on a priority basis. The court also ordered the Attorney General, the Director of Public Prosecutions (DPP) and other relevant agencies to prepare a detailed professional review in the context of the judgment and order made with a view to setting up a framework to deal with sentence re-hearing of cases similar to that of the petitioners herein. The Attorney General was granted twelve (12) months from the date of the judgment to give a progress report to the Supreme Court in that regard.
In its judgment the court directed that the judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, urgently, for any necessary amendments, formulation and enactment of statute law, to give effect to the judgment on the mandatory nature of the death sentence and the parameters of what ought to constitute life imprisonment.
The progress report on the framework proposed for the re-hearing of similar cases was not filed within 12 months as ordered by the court but it was filed on October 11, 2019. The reason for the delay in filing the progress report, offered by counsel for the DPP, was that there were no re-sentencing guidelines necessary to address the numerous pending matters on re-sentencing. On behalf of the 1st amicus curiae Katiba Institute, it was stated that the delay in filing the report resulted in the inability of the Supreme Court to confirm compliance with its orders and it compounded violations of the appellants' constitutional rights. It was stated that the absence of the anticipated guidelines had created inconsistency, confusion and uncertainty within the criminal justice system about the death sentence.","Directions of the Court
1.
It is common factor that this appeal specifically involved the two appellants, Francis Karioko Muruatetu and Wilson Thirimbu Mwangi, whose conviction and sentence of death for the offence of murder contrary to section 203 as read with section 204 of the Penal Code was upheld by the Court of Appeal on a first appeal. All they challenged before this court, was not their conviction but the mandatory nature of the sentence of death imposed upon them by the High Court and affirmed by the Court of Appeal, arguing that it was inconsistent with the Constitution and therefore void.
2.
Two other issues were raised; whether the indeterminate nature of a life sentence is also inconsistent with the Constitution, and whether this court ought to assign a definite number of years of imprisonment, subject to remission rules, which will constitute life imprisonment.
3.
In considering these questions, the court confined its determination to the following issues:
a)
Whether the mandatory nature of the death penalty under section 204 of the Penal Code is contrary to the Constitution,
b)
Whether the indeterminate life sentence was equally unconstitutional, and
c)
Whether this court could define the parameters of a life sentence.
4.
By our judgment rendered on December 14, 2017, this court (though differently constituted), readily accepted that the last two questions (b) and (c) above, not having been canvased before the two courts below, were not available for the court’s determination. On the first question, however, the court made the following declarations and orders:
''a)
The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.
b)
This matter is hereby remitted to the High Court for re- hearing on sentence only, on a priority basis, and in conformity with this judgment.
c)
The Attorney General, the Director of Public Prosecutions and other relevant agencies shall prepare a detailed professional review in the context of this judgment and order made with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the petitioners herein. The Attorney General is hereby granted twelve (12) months from the date of this Judgment to give a progress report to this court on the same.
d)
We direct that this judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law, to give effect to this judgment on the mandatory nature of the death sentence and the parameters of what ought to constitute life imprisonment”. (Our emphasis).
5.
Despite the Attorney General, the Director of Public Prosecutions and other relevant agencies having 12 months within which to present a progress report on the framework proposed, to deal with sentence re-hearing of cases similar to this, that report was not filed until October 11, 2019. Prior to the filing of the said report, the court had on its own motion mentioned the matter on October 8, 2019, as a follow up on the progress of the directions given on December 14, 2017. At that point Mr Hassan, learned counsel representing the Director of Public Prosecutions, drew the attention of the court to the confusion in the courts below occasioned by lack of re-sentencing guidelines. He pleaded that there was need to have the guidelines issued promptly to address numerous pending applications, petitions and appeals on re-sentencing.
6.
On his part, Mr Ochiel, learned counsel for Katiba Institute, expressed concern that the delay occasioned by the Attorney General in filing the status report had resulted in the inability for the court to ascertain whether or not its judgment was being complied with; it had compounded the violations to the appellants’ constitutional rights; and the absence of anticipated guidelines had created inconsistency, confusion and uncertainty within this aspect of criminal justice.
The appellants, on the other hand, confirmed that, contrary to the orders of the court, they had not been afforded, up until that time, a resentencing hearing by the High Court.
7.
In the meantime, it is public knowledge, and taking judicial notice, we do agree with the observations of both Mr. Hassan and Mr Ochiel, that while the report of the Task Force appointed by the Attorney General was awaited, courts below us have embarked on their own interpretation of this decision, applying it to cases relating to section 296(2) of the Penal Code, and others under the Sexual Offences Act, presumably assuming that the decision by this court in this particular matter was equally applicable to other statutes prescribing mandatory or minimum sentences. We state that this implication or assumption of applicability was never contemplated at all, in the context of our decision.
8.
While it is regrettable that the report was not filed timeously and these directions not issued immediately, there can be no justification for courts below us, to take the course that has now resulted in the pitiable state of incertitude and incoherence in the sentencing framework in the country, giving rise to an avalanche of applications for re-sentencing. Appellants whose sentences were confirmed by the High Court and the Court of Appeal have returned to the magistrate’s courts, where, without reference to the decisions of the two superior courts, have had those sentences revised. The magistrate’s courts have also, in some instances entertained applications for re-sentencing in murder cases, clearly without jurisdiction. Likewise, some appellants whose appeals under various statutes prescribing mandatory or minimum sentences, that are pending hearing and determination, either in the High Court or the Court of Appeal, have also had their sentences revised by the magistrate’s courts without disclosing the fact that pending appeals exist in superior courts.
9.
In addition, there is no harmony in the revised sentences by the courts. The sentences which have been imposed after re-sentencing hearing range from commutation to the period served, probation, reduction of sentences to some specific period, or the preservation of the maximum sentences.
10.
It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it, In that paragraph, we stated categorically that;
48
Section 204 of the Penal Code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under article 25 of the Constitution; an absolute right”.
Reading this paragraph and the Judgment as a whole, at no point is reference made to any provision of any other statute. The reference throughout the Judgment is only made to section 204 of the Penal Code and it is the mandatory nature of death sentence under that section that was said to deprive the “courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases”.
11.
The ratio decidendi in the decision was summarized as follows;
69.
Consequently, we find that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment”.
We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.
12.
Likewise, our orders set out in the previous paragraphs specifically directed the Attorney General to prepare a detailed professional review “in the context of this judgment…. with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the petitioners herein”, and no other case.
We stated fairly clearly too, at paragraph 111 of the Judgment, the extent to which our holding was applicable as follows:
“
It is prudent for the same court that heard this matter to consider and evaluate mitigating submissions and evaluate the appropriate sentence befitting the offence committed by the petitioners. For the avoidance of doubt, the sentencing re-hearing we have allowed, applies only for the two petitioners herein. In the meantime, existing or intending petitioners with similar cases ought not approach the Supreme Court directly but await appropriate guidelines for disposal of the same. The Attorney General is directed to urgently set up a framework to deal with sentence re-hearing of cases relating to the mandatory nature of the death sentence - which is similar to that of the petitioners in this case.”
13.
Further, at paragraph 71 of the judgment, the court nullified paragraphs 6.4-6.7 of the Judiciary Sentencing Policy Guidelines which were to the effect that courts must impose the death sentence in all capital offences in accordance with the law. In view of our holding in the judgment in question, those paragraphs were no longer applicable.
14.
It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners, and as framed by the court.
15.
To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases.
16.
To the extent directly relevant to the matters under review in these directions, we note the Attorney General in his Report, together with the Task Force recommended, that:
a)
Life imprisonment be substituted where the Penal Code previously provided for the death penalty, with the option of life imprisonment without parole for the most serious of crimes; and that if not abolished, the death penalty should only be reserved for the rarest of rare cases involving intentional and aggravated acts of killing.
b)
All offenders, subject to the mandatory death penalty, including those convicted and sentenced prior to 2010, who are serving commuted sentences, will be eligible for re-sentencing, including all offenders sentenced to death as at the time of the decision which was made on December 14, 2017.
c)
Where an appellant has lodged an appeal against a conviction and/or sentence, the appellate court must, at any stage before judgment, remit the case to the trial court for re-sentencing.
We note that the other recommendations in the Task Force report go beyond the terms of the orders of December 14, 2017, and deal, for example, with matters that are in the legislative province of Parliament or in the courts’ exclusive jurisdiction and judicial discretion.
17.
The appellants in this matter, we have since learnt, were presented to the High Court and heard on their plea for re-sentencing; therefore, we make no further comment on them.
18.
Having considered all the foregoing, to obviate further delay and avoid confusion, we now issue these guidelines to assist the courts below us as follows:
i.
The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 203 and 204 of the Penal Code;
ii.
The Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu;
iii.
All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.
iv.
Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.
v.
In re-sentencing hearing, the court must record the prosecution’s and the appellant’s submissions under section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on the suitable sentence.
vi.
An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.
vii.
In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court;
(a)
Age of the offender;
(b)
Being a first offender;
(c)
Whether the offender pleaded guilty;
(d)
Character and record of the offender;
(e)
Commission of the offence in response to gender-based violence;
(f)
The manner in which the offence was committed on the victim;
(g)
The physical and psychological effect of the offence on the victim’s family;
(h)
Remorsefulness of the offender;
(i)
The possibility of reform and social re-adaptation of the offender;
(j)
Any other factor that the court considers relevant.
viii.
Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.
ix.
These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu.
19.
Orders accordingly.",Directions,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/31/eng@2021-07-06
Petition 20 of 2019,Attorney General & another v Uasin Gishu Memorial Hospital Limited & another (Petition 20 of 2019) [2021] KESC 57 (KLR) (24 March 2021) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",24 March 2021,2021.0,Nairobi,Civil,Attorney General & another v Uasin Gishu Memorial Hospital Limited & another,[2021] KESC 57 (KLR)               ,,"Brief facts
Legal Notice Number 78 of 1998 established the 2nd respondent as a State corporation and appointed a board to take over the 1st respondent's hospital and properties including rights, duties, obligations, assets and liabilities. Pursuant to the legal notice, the appellants and the 2nd respondent, without following due process, compulsorily acquired the 1st respondent hospital and suit properties by ordering that its assets, rights and interests be transferred and managed by 2nd respondent under the provisions of the State Corporations Act.
The 1st respondent filed HCCC No 123 of 1998 seeking temporary orders to restrain the 2nd respondent from interfering with the hospital and its properties and the orders were granted. After publishing Gazette Notice No 6623 of August 20, 2004, expressing the intent to dissolve a number of companies, the Registrar of Companies published Gazette Notice No 815 of February 4, 2005 through which the 1st respondent was dissolved and struck off the register. On March 11, 2001, the 2nd respondent forcefully entered and took over possession of the hospital and its property. The 2nd respondent also successfully applied for HCCC no 123 of 1998 to be struck out on grounds that the 1st respondent was no longer a legal entity.
Later, the 1st respondent filed Miscellaneous Cause No. 350 of 2005, and it obtained orders for its reinstatement on the companies register. The 1st respondent then filed HC Constitutional & Judicial Review Misc. Civil Case No. 12A of 2006 (OS). In that matter it sought various reliefs including declaratory reliefs to the effect that Legal Notice No 78 of 1998 which led to the transfer of its assets and liabilities to the 2nd respondent was illegal and that its rights to property had been violated. The High Court found that the originating summons raised a property ownership dispute whose determination required viva voce evidence and not affidavit evidence. The originating summons was dismissed by the High Court which cited lack of jurisdiction to determine who the real owner of the suit property was or the nature of the 1st respondent's interest.
On appeal, the Court of Appeal found that the originating summons was competent as it raised allegations of violations of property rights. It also found that the 1st respondent was the lawful owner of the disputed property and that the High Court should have made determinations on the alleged violation of property rights and the legality of the legal notice. The Court of Appeal found that the impugned legal notice (Legal Notice No. 78 of 1998) violated the 1st respondent's rights to property and was illegal and unconstitutional. An appeal against the Court of Appeal's decision was lodged at the Supreme Court.
A cross-appeal was also filed at the Supreme Court by the 2nd respondent. Amongst the contentions of the 2nd respondent were that the suit premises comprised of public land acquired by the Government in 1961 and the Government made capital investments on the land in 1998. The 2nd respondent claimed that the 1st respondent had no interest or investment in the land. The 2nd respondent contended that the Court of Appeal had awarded a wrong-doer as the 1st respondent had fraudulently alleged that its title deed was lost and converted the land registration regime from the Registration of Titles Act to the Registered Land Act. The 2nd respondent also stated that the Court of Appeal, after finding that the originating summons was competent, should have referred the matter to the High Court to exercise its original jurisdiction.","D. Issues for Determination
43.
From the pleadings filed, the respective parties’ submissions, list and bundle of authorities, the following issues crystalize for determination:
(i)
Whether the appeal before this courtmeets the constitutional threshold under article 163(4)(a) of the Constitution?
(ii)
Whether the High Court had jurisdiction to entertain the suit before it?
(iii)
Whether the Court of Appeal had jurisdiction to entertain the appeal before it?
(iv)
What reliefs should the courtoffer?
E. Analysis and Determination
(i) Whether the appeal before this Court meets the constitutional threshold under article 163(4)(a) of the Constitution?
44.
The appellants submitted that the present appeal is proper before us as it raises questions on the interpretation and application of article 40 of the Constitution as read together with section 75 of the repealed Constitution on the protection of the right to property. Additionally, the appellants submitted that the Court needs to make a finding on the Court of Appeal’s retrospective application of section 75 of the retired Constitution in awarding compensation to the 1st respondent. The 1st and 2nd respondent did not submit on this court’s jurisdiction to entertain the instant appeal.
45.
The Supreme Court’s appellate jurisdiction is set out in article 163(4) of the Constitution of Kenya which states as follows:
“
(4)
Appeals shall lie from the Court of Appeal to the Supreme Court –
a.
As of right in any case involving the interpretation or application of this Constitution; and
b.
In any other case in which the Supreme Court, or Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5.
(5)
A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.”
46.
section 15(1) of the Supreme Court Act also provides that appeals to this court shall be heard only with the leave of the court. section (15)(2) of the same Act on the other hand provides that Sub-section (1) shall not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution.
47.
Apart from the aforementioned constitutional and legal provisions, this court has also stipulated the limits of its jurisdiction under article 163(4)(a) of the Constitution in its decisions, which decisions are still applicable. In the case of Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Pet No 3 of 2012; [2012] eKLR, a two-Judge Bench of this Court (Tunoi and Wanjala SCJJ) set the guiding principles as follows:
[28]:
“The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a).”
48.
Further, in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, SC Pet No 10 of 2013 this court observed as follows:
[37]:
“In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the Superior Courts and has progressed through the normal appellate mechanism so as to reach this court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution…” [emphasis added].
49.
This courtreiterated the same principle in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC App No 5 of 2014; [2014] eKLR (Munya 1) where we stated thus:
[69]:
“The import of the court’s statement in the Ngoge case is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.”
50.
So then, does the present appeal raise issues of Constitutional interpretation and application and have the same issues been canvassed in the superior courts and progressed through the normal appellate mechanism so as to reach this court by way of an appeal? Having perused the Record before us (Volume IV at page 909), we note that at the High Court, the Learned Judges listed the following as issues for determination namely: whether the issues determined as preliminary points of law should be revisited; whether there was non-disclosure of material facts; the effect of other related cases; whether the originating summons discloses any constitutional issue or cause of action; and who bears the costs of the proceedings. We note that despite determining the first three issues, the High Court did not conclusively determine the fourth issue namely, whether the originating summons discloses any constitutional issue or cause of action? The learned Judges found that whereas the real issue was whether or not the fundamental rights of the Plaintiff were breached and whereas the 1st respondent claimed that the land and other assets belongs to it, the appellants claimed that the Land was government land. Consequently, the Learned Judges came to the conclusion that the Originating Summons raised a dispute as to who really is the owner of the disputed land and other assets, and that required viva voce evidence not affidavit evidence. Instead, the Court dismissed the originating summons for lack of jurisdiction.
51.
A further perusal of the Record (Volume IV at page 1064) disclose the following as the issues listed for determinations by the Learned Judges of the Court of Appeal: Whether the Originating Summons was competent? Whether the 1st respondent was a public or private entity; Whether the Hospital and suit properties belonged to the appellants or the 1st respondent; Whether the Legal Notice led to a violation of the 1st respondent’s constitutional rights, and if so whether its rights were violated; and whether the 1st respondent was entitled to the reliefs sought. In addressing the question as to whether the Originating Summons was competent before the High Court, the Learned Judges found that the Originating Summons was proper before the High Court. It also found that it was incumbent upon the High Court to determine whether or not a violation of rights had occurred due to the Legal Notice and in failing to reach a finding on a matter that was central to the dispute, the court failed to fulfill its constitutional mandate, and in so doing, misdirected itself. Instead of referring the matter back to the High Court, the Court of Appeal took it upon itself to determine the issues before it.
52.
This Court has in previous decisions emphasized the significance of respecting the hierarchy of the judicial system. In Peter Oduor Ngoge v Francis Ole Kaparo & others, SC Petition No 2 of 2012; [2012] eKLR at Par [30], we stated:
“
In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.”
53.
Taking all the above matters in context, we hold that this appeal, indeed, falls within the ambit of article 163(4) (a) of the Constitution and is rightly before us.
(ii) Whether the High Court had jurisdiction to entertain the appeal?
54.
The High Court is established as such under article 165 of the Constitution with unlimited original jurisdiction in criminal and civil matters and with jurisdiction to determine questions on denial, violation, infringement or threats to rights or fundamental freedoms. The article provides as follows:
“
article 165(1) There is established the High Court of Kenya, which-
….
(3)
Subject to clause (5), the High Court shall have-
(a)
Unlimited original jurisdiction in criminal and civil matters;
(b)
Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c)
…”
55.
We are aware that the decision herein was rendered before the Constitution 2010 was promulgated. Even so, the retired Constitution did make provision for the High Court’s unlimited original jurisdiction in civil and criminal matters at section 60(1) and therefore, there was no excuse for the High Court’s failure to address the issues in dispute. We therefore agree with the Court of Appeal’s finding to the extent that the High Court had a constitutional obligation to determine the issues before it and in failing to do so, the learned judges failed to fulfil their constitutional mandate.
(iii) Whether the Court of Appeal had jurisdiction to entertain the claim before it?
56.
Having found that the High Court failed to execute its constitutional mandate, the learned Judges of Appeal proceeded to address the substantive issues before them. In doing so, the appellate courtrelied on affidavit evidence, without giving parties the opportunity to present and examine evidence. We are aware that the learned judges of Appeal may have invoked section 3(2) of the Appellate Jurisdiction Act. Ordinarily, this would have been proper had all the facts and law been well presented at the trial court. It is not contested in the superior courts and even before this Court that the question of ownership of the suit premises, the legal status of the 1st respondent and compensation(if any) upon acquisition of the suit premises by the appellants and vesting the same upon the 2nd respondent are highly contested. We do agree with the High Court on its finding only to the extent that the matter could not be determined by affidavit evidence in the manner in which the suit was presented before it. Consequently, we fault the Court of Appeal for determining the substantive issues before it, which issues had not been exhaustively determined by the High Court. This act denied the parties the opportunity to be heard and effectively and exhaustively address the contested issues. For this reason, we find that both superior courts denied the parties their right to be heard as provided for in article 25 and 50 of the Constitution. We do agree with the appellants’ and the 2nd respondent’s argument that the Court of Appeal ought to have referred the matter back to the High Court for determination of contested issues. Consequently, we find error on the part of the Court of Appeal in determining the matter as it did.
iv What reliefs should the Court offer?
57.
The appellantsought that: (a) this appeal be allowed with costs; (b) the judgment of the Court of Appeal be set aside; and (c) the judgment of the High Court be affirmed. It is our finding that the High Court erred in not exercising its original jurisdiction on the issues before it and that the Court of Appeal erred in exhaustively determining issues before it without having them effectively and exhaustively determined by the High Court, and without affording the parties an opportunity to test the evidence presented by affidavit. Based on our findings above, we will allow the petition of appeal and cross-appeal but subject to the matter being heard afresh before the Environment and Land Court which, pursuant to article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act No 19 of 2011, has exclusive jurisdiction to, among others, hear and determine disputes relating to title, tenure, compulsory acquisition of land, public, private and community land. Furthermore, the Court has the requisite jurisdiction under section 13(7) of the Act to make any order and grant any relief as it deems fit and just including: interim or permanent preservation orders including injunctions; prerogative orders; award of damages; compensation; specific performance; restitution; declaration; or costs.
58.
Cognizant of the period in which it has taken for this matter to be prosecuted, the expiry date of the lease pertaining the suit premises, and in order to do justice for all the parties involved herein, we direct that the Environment and Land Court hears and determines this matter on a priority basis. Towards that end, we specifically direct the Environment and Land Court to address the following issues:
(i)
Who is the owner of Eldoret Municipality/ Block 7/125 and Eldoret Municipality/Block 7/126? How was the land acquired?
(ii)
Who owns the investment on Eldoret Municipality/ Block 7/125 and Eldoret Municipality/Block 7/126? By what means were the investments made?
(iii)
Is the Hospital on the suit land? Is it a public or a private hospital? If it is a private Hospital when was it licensed to operate as such? If it is public, does it have a license to operate as such? When was the license given? How has the hospital been running?
(iv)
Who is the 1st respondent? Is it a public body or a private entity? Has the 1st respondent been paying taxes? If not, why?
(v)
Who have been the Board Members of the 1st respondent? Have they ever changed? If yes, why and when did they change?
(vi)
Who is the Board? Why did the District Commissioner significantly chair the affairs of the 1st respondent over the years? On whose authority did District Commissioner chair?
(vii)
How did the Directorship of the 1st respondent move to the Government?
(viii)
If the 1st respondent were to be found to be entitled to compensation and can claim the same, what mechanism should be used to quantify the same?
(ix)
What is Legal Notice No 78 of 1998? What is its legal status?
(x)
What is the legal status of Gazette Notice No 6623 of 20th August 2004, published by the Registrar of Companies giving a notice of intended dissolution of a number of companies, including the 1st respondent?
(xi)
What is the legality of Gazette Notice No 815 of 4th February 2005 by which the 1st respondent was dissolved?
59.
As to the questions of costs in this matter, this courthas previously settled the law on award of costs: that costs follow the event, and that a judgehas the discretion in awarding costs. This was the decision in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC. Petition No 4 of 2012: [2014] eKLR. Considering our findings above, that it is the High Court that failed to exercise its constitutional mandate in the matter before it and further that the Court of Appeal exercised jurisdiction that it ought not to have exercised, and further that now we are sending the matter to the Environment and Land Court for determination of the specified issues, we find that there should be no order as to costs.
60.
Consequently, we make the following orders:
(i)
The Petition of Appeal dated May 28, 2019 and filed on an even date and the Cross-appeal dated and filed on June 7, 2020be and is hereby allowed in the following specific terms:
(a)
The Judgment and order of the Court of Appeal dated October 6, 2017 be and is hereby set aside.
(b)
The Judgement of the High Court dated March 19, 2010 be and is hereby set aside.
(c)
For the avoidance of doubt, the Judgment of the High Court is null and void.
(d)
The matter is hereby remitted to the Environment and Land Court for determination of the issues specified herein.
(ii)
Each party shall bear their own costs.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/57/eng@2021-03-24
Petition (Application) 22 of 2017,County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested Party); Siaya County Assembly Service Board (Proposed Interested Party) (Petition (Application) 22 of 2017) [2021] KESC 54 (KLR) (24 March 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",24 March 2021,2021.0,Nairobi,Civil,County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested Party); Siaya County Assembly Service Board,[2021] KESC 54 (KLR)               ,,"1.
The Applicant seeks joinder in Petition 22 of 2017, The County Assemblies Forum vs. The Hon. Attorney General & 5 others, in the capacity of an interested party. Its Notice of Motion is dated and filed on 26th February 2020, and supported by an affidavit sworn by Eric Ogenga, Acting Secretary of the Siaya County Assembly Service Board, on the same date. The Application is premised on Articles 25(c), 50(1), 127(1) and 6(e) (i) of the Constitution of Kenya, Sections 3 and 24(1) of the Supreme Court Act, 2012, and Rules 3 and 25(1) of the Supreme Court Rules, 2012(now revoked).
2.
In addition to the grounds set in the application, the Applicant filed its written submissions on 12th March 2020. It is the Applicant’s case that between the year 2013 and 2014, it advanced car and mortgage loan facilities to former members of the first Assembly to be repaid within five years of their term in office from their salaries. The Applicant submits that it intends to raise issues related to the appeal before us, which issues include that: a majority of Members of Siaya County Assembly Service Board have been unable to repay their outstanding loans; that the said members have petitioned it to write off the outstanding mortgage debt and accruing interest as at 8th January 2019, and extend the loan repayment period until the final conclusion and determination of the Supreme Court Matter.
3.
The Applicant alleges further that the Petitioner has failed to accommodate the foregoing concerns within the body of the Petition and declined to update it on the case pending before us. It also contends that no prejudice will be occasioned to the Petitioner and the Respondents. The Applicant cites several legal provisions and cases to support its argument including Section 23 of the Supreme Court Act, Rule 25 of the Supreme Court Rules, 2012, Judicial Service Commission vs. Speaker of the National Assembly & 8 others, [2014] eKLR, Trusted Society of Human Rights Alliance vs. Mumo Matemo & 5 others [2014] eKLR and Francis Karioki Muruatetu &another vs. Republic & 5 others, Petition 15 as consolidated with 16 of 2013; [2016]eKLR (the Muruatetu Case)
4.
Opposing the application, the 2nd Respondent (the Independent Electoral and Boundaries Commission), filed its written submissions on 14th May 2020 whereby it submits that the Applicant has not met the principles and threshold for joinder as an interested party. In that regard, it urges that the Applicant has not demonstrated a personal interest or stake it has in the determination of the petition herein, and which interest cannot be effectively canvassed by the parties on record. The 2nd Respondents submits that the issue for determination before us concerns the violation of the constitutional rights of the Petitioner as a group of first elected Members of County Assembly under the new Constitution contrary to the issue being advanced by the Applicant, the inability of the Members of Siaya County Assembly to service the mortgage advanced by them owing to their reduced term of office. The 2nd Respondent urges that the issue can be canvassed by the Petitioner and the outcome determined on all Members of County Assemblies. The 2nd Respondent also contends that the Applicant has not substantiated its allegations that the Petitioner has failed to address their concerns in the petitioner.
5.
Furthermore, the 2nd Respondent urges that the mortgages between the Applicant and its former Members of County Assembly does not amount to sufficient stake in the matter and that the taking of a loan is a separate and independent arrangement from the term of office of a Member of a County Assembly. The 2nd Respondent maintains that the Applicant has not demonstrated how the orders being sought by the Petitioner would specifically have a legal impact on the discharge of the Applicant’s mandate. The 2nd Respondent adds that its interests can be adequately advanced by the Petitioner.
6.
The 2nd Respondent also submits that the Applicant has not demonstrated the prejudice it will suffer if it is not enjoined in the petition and that its presence will not add value or alter the cause of the proceedings as any and all of the submissions that will be made will be a replication of the averments of the Petitioner. It relies on the Muruatetu Case to support its argument.
7.
The 2nd Respondent also urges that allowing the application will open a flood gate of similar applications from 46 other similar statutory bodies and consequently occasion delay in in determination of the petition. The 2nd Respondent prays that we dismiss the instant application.
8.
We have taken note that on 13th October 2020 when this matter was mentioned before the Hon. Deputy Registrar, Learned Counsel, Mr. Achiando holding brief for Mr. Mbarak for the Interested Party confirmed that they did not intend to file any submissions. Learned Counsel Mr. Njenga for the Petitioners did not indicate whether or not the Petitioner is opposed to the Application. Mr. Muge who was present for the 3rd Respondent did not indicate the position taken by the 3rd Respondent in respect to the Application. The Hon. Attorney General, and the 4th Respondents were not represented.
9.
An applicant for joinder has to satisfy this Court that he or she has fulfilled the legal requirements for joinder. The relevant law is Rule 24 of the Supreme Court Rules 2020 (previously 25 of the Supreme Court Rules, 2012). The said Rule provides as follows:
“
(24) (1)
A person may, within seven days of filling a response in any proceedings, apply for leave to be enjoined as an interested party.
(2)
An application under sub-rule (1) shall include-
a)
A description of the interested party;
b)
A depiction of such prejudice as the interested party would suffer if the intervention was denied; and
c)
The grounds or submissions to be adduced by the interested party, their relevance to the proceedings, and their departures from the standpoint of the parties…” [emphasis supplied].","10.
This Court has set the criteria for joinder as an interested party in the cases of Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013; and Francis Karioki Muruatetu & Another v. Republic & 5 Others, Petition 15 as Consolidated with 16 of 2013 [2016] eKLR.
11.
We have noted in the instant matter that the Applicant seeks joinder to have its concerns included within the body of the Petition of appeal before us. The concerns alluded to include: it advanced car and mortgage facilities to former members of the 1st Assembly to be repaid within five years of their term in office from their salaries; that a majority of the members have been unable to repay their outstanding loans; and that the said members have petitioned the Applicant to write off the outstanding mortgage debt and accruing interest owed by each of them; and extend the loan payment period until the final conclusion and determination of the Supreme Court matter. The Applicant is in essence introducing new issues that are not pending before us.
12.
Furthermore, the Applicant has not advanced any submissions that will be helpful to the Court as regards the main issue before us. We decline to allow the Applicant to introduce a new cause of action contrary to this Court’s previous decisions mentioned above. Furthermore, we are not convinced that the Applicant will be suffer any prejudice if its intervention is denied as its interest will be well ventilated by the Petitioner, whereby the Applicant is a member. Towards that end, we are inclined to dismiss the application.
13.
The costs of this application shall follow the event as was decided by this Court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition No. 4 of 2012; [2014] eKLR. Hence, the Applicant shall bear the 2nd Respondent’s costs incurred in this application.
14.
Consequently, we make the following Orders:
i.
The Notice of Motion dated 26th February 2020 and filed on even date be and is hereby dismissed.
ii.
The Applicant shall bear the costs of the 2nd Respondent.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/54/eng@2021-03-24
Application 12 of 2020,Dhanjal Investments Limited v Cosmos Holidays PLC (Application 12 of 2020) [2021] KESC 53 (KLR) (24 March 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",24 March 2021,2021.0,Nairobi,Civil,Dhanjal Investments Limited v Cosmos Holidays PLC,[2021] KESC 53 (KLR)               ,,"1.
The Applicant seeks review of the decision by the Court of Appeal dated 22nd May 2020, which declined to grant certification that its intended appeal involves matters of general public importance.
2.
At the heart of the matter is the interpretation of Sections 3 (3) (b); 4 (1) (a), (b), (c), (i) and (g), of the Foreign Judgments (Reciprocal Enforcement) Act. In brief, the background of this matter is an incident that occurred between the 3rd and 4th of May 2000. The Applicant, a Hotelier, operating the Travellers Beach Hotel, and Mwaluganje Elephant Camp in Kwale County, entered into a contract with the Respondent, a tour operator, based in the United Kingdom to supply to them with “Package holiday tourists” to be accommodated at their Hotels. Unfortunately, on the night between the 3rd and 4th of May 2000, 9 tourists who were at Mwaluganje Elephant Camp Kwale County were attacked by a group of robbers causing them to be injured. Consequently, they filed suit in the United Kingdom, for recovery of damages for injuries that they had sustained, during that attack.
3.
The decision in that suit that is No. 6LS90055 in the Queen’s Bench Division of the High Court in England dated 10 August 2009 was registered here in Kenya on the 16th March 2012.","4.
Upon notification of the registered judgement, the Applicant filed at the High Court, HCCC No 112 of 2012 (OS). In a decision rendered on the 20th of June 2013, Justice Havelock (as he then was) dismissed the application finding that: both Section 3 (3) (b) and Section 4 (1)(i) of the Foreign Judgments Reciprocal Enforcement Act Cap 43 were inapplicable to the matter; that the English Court did have jurisdiction to decide the matter before it; and that the Applicant /Judgement Debtor being the defendant in the English Court submitted to the jurisdiction of the court by voluntarily appearing in the proceedings.
5.
Aggrieved, the Applicant filed Civil Appeal No. 317 of 2013, at the Court of Appeal which upon hearing the parties and giving judgement and final orders upheld the decision of the High Court. Specifically, the Appellate court stated that
“
the Kenyan court will not re-examine the merits of the foreign Judgment, which is enforced on the basis that the Judgment debtor has a legal obligation as a matter of common law, recognized by the High Court, to satisfy the money decree of the foreign Judgment.”
6.
On applicability of the impugned Sections, they agreed with the reasoning of the High Court finding that there was no reason to differ from the appreciation of the documents made available to the trial court or the assessment and conclusions reached thereon. They noted that the foundation of the foreign Judgment was a contract made between the appellant and the respondent and that it was the interpretation of that contract that engaged the English courts, at both the trial and the appeal stages. Additionally, it was their finding that the full Judgments of those courts were part of the record of appeal, and they were able to verify that it was the construction of the indemnity clause in the contract that engaged the English courts, even before the quantum of the loss claimed by Cosmos was assessed.
7.
They also rejected the Applicant’s contention that under Sections 4 (1) (i) and (g) of the Act, the claim was based on personal injuries and that in that light, there was no jurisdiction on the part of the English courts to deal with it as the cause of action arose in Kenya.
8.
Further Aggrieved, the Applicant filed a Noticed of Motion Application dated 23rd May 2018, at the Appellate Court seeking certification and leave to appeal to the Supreme Court against the Court of Appeal’s decision on the premise that the intended appeal raises issues of general public importance as well as issues of law, more specifically on enforcement of the provisions of the Foreign Judgments (reciprocal) Enforcement Act Cap 43.
9.
The appellate Court declined to grant certification finding that it did not warrant a substantial point of law to be determined by the Supreme Court that would be relevant to the general public interest as it did not result in any uncertainty, neither was it contradictory. The learned Judges were of the opinion that all the questions were exhaustively addressed in the United Kingdom as the Applicant had sought appeal of the original decision before it came before the High Court in Kenya. The appellate Judges were also of the opinion that the application before it was but an attempt by the Applicant to have a fifth bite at the cherry, and that the law in Kenya properly recognizes and provides for instances where enforcement of Judgments passed in countries outside Kenya and which accord reciprocal treatment to Judgments passed in Kenya are allowed.
10.
The Court of Appeal therefore found that all the issues raised by the Applicant were properly and correctly addressed by that Court adding that there was no question of law to be determined or uncertainty to be clarified by the Supreme Court that was of great public interest. It is that determination that prompted the application before us.
11.
In the present motion, the Applicant proposes the following as questions of law and general public importance worth of consideration by the Supreme Court namely:
i.
Novel and extremely important matters of law, regarding interpretation, and application of the law relating to Enforcement of Foreign Judgments in Kenya, as provided in the Foreign Judgments (Reciprocal Enforcement) Act, Cap 43, Laws of Kenya.
ii.
The proper interpretation and correct application of the provisions of the Foreign Judgments (Reciprocal Enforcement) Act, Cap 43, Law of Kenya, in relation to Judgments obtained in Courts outside Kenya.
12.
In its submissions dated 3rd June 2020 and filed on the 3th of June 2020, the Applicant urges that the world as a global village, makes it inevitable that the issues involving registration of foreign Judgments multiply and continue and it would therefore be imperative for the Court to make its conclusive pronouncement on the interpretation and application of the relevant provisions of the Fore The Foreign Judgments (Reciprocal Enforcement) Act.
13.
The application is opposed by the respondent who has filed a Replying Affidavit sworn by Lawson Ondieki on 15th June 2020, filed on the 16th of June 2020 as well written submissions also dated on the 15th of June 2020 and filed on 16th of June 2020.
14.
It is the Respondent’s submission that this case fails to satisfy the conditions set by this Court in Hermanus Phillipus Steyn v. Giovanni Gnechhi – Ruscone, Supreme Court application No. 4 of 2012; [2013] eKLR (Hermanus Case) as one of general public importance. They urge that the applicant has failed to identify any points of general public importance; that none of the matters raised transcend the circumstance of this case; and that this is just but a further attempt to re-argue matters which have already been determined by the High Court and the Court of Appeal as well as the English High Court and Court of Appeal.
15.
It is their contention that the Applicant submitted to the jurisdiction of the English Courts by executing the contract containing the exclusive jurisdiction provision and by fully participating and defending proceedings in England. In that regard, they submit that the claim was for indemnity and/or damages pursuant to a contract, and that the respondent was aware of its obligations in England. It is also contended that the tourists were not parties to the proceedings which gave rise to the Registered English Judgement which they emphasize is not for exemplary, punitive or multiple damages contrary to Section 3(3)(b) of the Foreign Judgement (Reciprocal) Enforcement Act.
16.
As properly cited by both parties, the criteria for certification has long been settled in many decisions of this Court which set principles governing what constitutes matters of ‘general public importance.’ In the Hermanus Case, Malcom Bell v. Hon. Daniel Toroitich arap Moi & another, Sup. Ct Application No. 1 of 2013 and Town Council of Awendo v Nelson Oduor Onyango & 13 others, Misc. Application No. 49 of 2014; [2015] eKLR it was our determination that for an intended appeal to qualify as a matter of general public importance, it must be one, the determination of which transcends the circumstances of the particular case and has a significant bearing on the public interest. It is therefore our mandate at this point to determine whether the Applicant’s case meets the criteria set by this Court in the above-mentioned cases.
17.
Having considered the application before us, on perusal of record, it is revealed, as correctly noted by both the High Court and the Court of Appeal, that the decision of the English Superior Court did not include the payment of monies by way of exemplary, punitive or multiple damages. Accordingly, that finding excludes the application of Section 3 (3) (b) of the Foreign Judgments Reciprocal Enforcement Act Cap 43. Further, that Section 4 (1) (i) of the Act does not apply as the suit whose Judgement has been registered here, had nothing to do with personal injuries or damages in relation to the said tourists. Additionally, that Section 10 (2) (c) and (4) of the Act clearly gives the English Courts jurisdiction over matters arising out of the contract between parties including the indemnity contained therein.
18.
We also take note of the finding that the circumstances surrounding the claim of indemnity and or damages pursuant to the contract in respect of the respondent’s liability to a group of 9 tourists who suffered injuries, whilst staying at a tented camp operated by the Applicant were evidentiary matters which were specific to the parties hereto and are therefore not grounds to grant certification.
19.
We therefore agree with the determination of the appellate court that the matter before us does not warrant a substantial point of law to be determined by this Court that would be relevant to general public interest as it does not result in any uncertainty, neither is it contradictory.
20.
Additionally, we note that the Applicant willingly participated in the proceeding in the English Superior Courts, where they litigated the matter until the appellate stage and in doing so, the Applicant exhaustively addressed the initial claim. We must emphasize that the opportunity to invoke the jurisdiction of this Court that a matter involves issues of public importance is not an opportunity for parties to continue litigation nor does it present an extra tier of appeal from the Court of Appeal.
21.
Accordingly, we find that the present Application does not comply with the principles articulated by this Court in the Hermanus Case and is one for dismissal.
22.
Consequently, we make the following orders;
i.
The Application dated 3rd June 2020 is hereby dismissed.
ii.
The Applicant shall bear the costs of the application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/53/eng@2021-03-24
Civil Application 20 of 2020,Ecobank Kenya Limited v Meya Agri Traders Limited (Civil Application 20 of 2020) [2021] KESC 58 (KLR) (24 March 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",24 March 2021,2021.0,Nairobi,Civil,Ecobank Kenya Limited v Meya Agri Traders Limited,[2021] KESC 58 (KLR)               ,,"1.
Before the Court is a Notice of Motion Application dated 30th July 2020 and filed on 11th August 2020, brought pursuant to Rule 15(2) of the Supreme Court Rules, 2020, and is premised on several grounds in the body of the application and the Supporting Affidavit of Caroline Mbenge, the Head of Legal and Company Secretary of the Applicant sworn on 30th July 2020.
2.
The Application raises one issue for determination by this Court, namely, whether this Court should grant an extension of time for the Applicant to file a Notice of Appeal?
3.
Rule 15(2) of the Supreme Court Rules, 2020 grants this Court the discretion to extend time in the following specific terms:
""The Court may extend the time limited by these Rules or by any decision of the Court”
4.
The timelines for filing a Notice of Appeal are provided for under Rule 36(1) which states that a Notice of Appeal shall be filed within fourteen days from the date of the judgment or ruling which is subject of appeal. Sub-Rule (4) provides that in lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.
5.
In the present case, we note the Judgment of the Court of Appeal was delivered on 5th June 2020. Accordingly, the last day for filing the Notice of Appeal was 19th June 2020. An application for extension of time before this Court was not done until 11th August 2020 some 51 days later.","6.
This Court has set the guiding principles on extension of time in the case of Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others, SC. Application No. 16 of 2014; [2014] eKLR as follows:
""… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.
“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:
1.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;
2.
a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3.
whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;
4.
where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;
5.
whether there will be any prejudice suffered by the respondents, if extension is granted;
6.
whether the application has been brought without undue delay; and
7.
whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied]
7.
Further, this Court has emphasized the need for the Applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court in the case of County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR.
8.
In a bid to justify why the Notice of Appeal could not be filed within the time, the Applicant avers that their then firm of advocates on record was based in Nakuru County, hence they could not travel to Nairobi discuss the Judgment with their clients and file a Notice of Appeal at the Court of Appeal Registry in Nairobi as movement to and from Nairobi was prohibited in a bid to contain coronavirus pandemic. The Applicant does not explain why it could not consult with its advocates via email, teleconferencing, skype, zoom, google teams or any other available channel so as to instruct its advocates on whether or not to file an appeal.
9.
The Applicant also chose to remain mum on Rule 6 of the Court of Appeal Rules which makes provision for Registry and sub-registries. Pursuant to sub-rule 3, “the appropriate registry” in case of an appeal from the High Court of Kenya sitting in Nakuru should be Nakuru. We have taken note of the fact that the Judgment that was subject of appeal before the Court of Appeal originated from the High Court of Kenya at Nakuru. Therefore, there is no justified reason why the Applicant could not file its Notice of Appeal at the sub-registry in Nakuru which was within its advocates’ jurisdiction and not affected by the cessation of movement.
10.
Furthermore, this Court takes judicial notice that on 16th April, 2020, W. Korir J, in Law Society of Kenya v Hillary Mutyambai Inspector General National Police Service & 4 others ; Kenya National Commission on Human Rights & 3 others (Interested Parties), HC Petition No. 120 of 2020(COVID 025); [2020] eKLR, issued an order of mandamus compelling Cabinet Secretary for interior and coordination of national government, to amend the Schedule to the Public order (State Curfew) order, 2020 so as to include the members of the Law Society of Kenya in the list of “services, personnel or workers” exempted from the provision of the Public Order (State Curfew) Order, 2020. We also take note that lawyers were subsequently issued with an essential service provider Identity card to enable them to move within and out of the areas restricted by Public Order (State Curfew) Order, 2020. We therefore find the Applicant’s argument that its then advocates were unable to travel untenable.
11.
We also find the Applicant’s assertion, that it could not file the instant application on time because both the Supreme Court and the Court of Appeal Registries in Nairobi remained closed and therefore inaccessible to members of the public, incorrect. We note that even though service delivery in the Judiciary scaled down, services were still offered, and urgent applications prioritized. Furthermore, the Applicant failed to utilize the online filing platform to comply with set timelines. We find that the delay in bringing the instant application late has not been sufficiently justified.
12.
The Applicant submitted that the Court of Appeal’s decision has the likelihood of disrupting the Kenyan Banking industry and the standard banking practices which have been adopted over time thereby negatively affecting many financial institutions. On this, we have taken note of the issues for determination both at the High Court and at the Court of Appeal and are convinced that none of them are for the public interest to persuade us to extend time.
13.
Towards that end, the application for extension of time to file a notice of appeal fails with costs to the Respondent.
14.
Consequently, we make the following Orders:
i.
The Notice of Motion dated 30th July 2020 and filed on 11th August 2020be and is hereby dismissed.
ii.
The Applicant shall bear the costs of the Respondent.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/58/eng@2021-03-24
Civil Application 19 of 2020,"Haki Na Sheria Initiative v Inspector General of Police, Cabinet Secretary for Internal Security & Attorney General; Kenya National Human Rights and Equality Commission(Interested Party) (Civil Application 19 of 2020) [2021] KESC 55 (KLR) (Civ) (24 March 2021) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",24 March 2021,2021.0,Nairobi,Civil,"Haki Na Sheria Initiative v Inspector General of Police, Cabinet Secretary for Internal Security & Attorney General; Kenya National Human Rights and Equality Commission(Interested Party)",[2021] KESC 55 (KLR)               ,,"1.
Upon perusing the Notice of Motion application by the Applicants dated 5th August 2020, and filed on 6th August 2020, which application is brought pursuant to the provisions of Article 159 of the Constitution of Kenya, Section 21 (2) and 24 of the Supreme Court Act, and Rule 53 of the Supreme Court Rules, 2012 (now revoked) in which the Applicants seek extension of time to file an appeal out time; and
2.
Upon perusing the supporting affidavit of Counsel for the Applicant, Jibril Noor, sworn on 5th of August 2020; and
3.
Upon considering the written submissions by the Applicant dated 5th August 2020, and filed on the 6th of August 2020 wherein the Applicant contends that the delay in filing the Petition of Appeal was occasioned by technical issues and failure of the e-filing system of the Court to upload the Petition of Appeal in spite of numerous attempts to do so; and","5.
HAVING considered the application and the submissions filed by the Petitioner/Applicant, we note that under Rule 15(b) of this Court’s Rules, 2020, the Court may, on its discretion extend time for any action under the Rules. As pleaded by the Applicant, this Court has already set the guiding principles for extension of time in the case of Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others, Supreme Court Application No 16 of 2014, [2014] eKLR, where the Court emphasized that extension of time is not a right of a party, but would be considered on a case by case basis with the onus on the Applicant seeking extension to lay the basis and give proper explanation to the satisfaction of the Court, the reason for delay; and
6.
Upon noting that in this case, the Applicant, having timeously lodged their notice of appeal has also provided sufficient explanation for the delay in filing of the Petition of Appeal; and
7.
In the circumstances, we allow this application and make the following Orders;
a.
The Application dated 5th August 2020, and filed on the 6th of August 2020 is hereby allowed.
b.
The Applicant shall bear the costs of this Application.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/55/eng@2021-03-24
Petition (Application) 46 of 2019,Housing Finance Company of Kenya Limited & another v Hirji (Sued as attorney for Firoze Nurali Hirji); Hirji (Applicant) (Petition (Application) 46 of 2019) [2021] KESC 71 (KLR) (Civ) (24 March 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",24 March 2021,2021.0,Nairobi,Civil,Housing Finance Company of Kenya Limited & another v Hirji (Sued as attorney for Firoze Nurali Hirji); Hirji (Applicant) ,[2021] KESC 71 (KLR)               ,,"1.
On the 25th of September 2020, this Court, (Lenaola, SCJ) adopted as an Order of this Court, a Consent dated 10th of September 2020, marking Petition of Appeal No. 46 of 2019 as settled. It was noted that on record, there was a letter by Taib A Taib Bajaber, Advocate, who is not a party to the proceedings, but was opposed to adoption of the Consent Order.
2.
The Applicant, Firoze Nurali Hirji, in his Notice of Motion Application dated 1st October 2020, and filed on 13th October 2020, supported by his affidavit deponed on 1st of October 2020, and in his submissions filed on 1st October 2020, and supplementary submissions dated 22nd October 2020, seeks the following orders:
i.
An interim stay of enforcement of the consent order dated 10th September 2020, as adopted by this Honorable Court on the 25th of September 2020 as against the 1st Appellant and its agents.
ii.
That the Consent order dated 10th September 2020 and adopted by this Court on the 25th of September 2020 be set aside.
iii.
That the 1st Appellant’s Petition/Appeal No. 46 of 2019 filed in this Court be struck out with costs for want of jurisdiction.
iv.
That stay of execution of the Court of Appeal’s Judgment pending Petition/Appeal granted by this Honorable Court be lifted.
v.
That costs of this Application be provided for.
3.
In his submissions, the Applicant reiterates the grounds of his application and states that the subject consent was entered into without his knowledge yet he is the principal under the Power of Attorney whose proprietary interests are at the risk of being substantially prejudiced. He states that he only learnt about the Consent after the fact, and on this ground it ought to be vitiated.
4.
Secondly, he urges that the Court ought to have independently satisfied itself of its jurisdiction over the entire subject matter/dispute before making a determination as to whether or not to adopt the Consent, as it did, on the 25th of September 2020.
5.
Citing Phoenix of EA Assurance Company Limited v S.M Thiga t/a Newspaper Service [2019] where the Court found a nullity all orders emanating from a suit filed in a court devoid of jurisdiction, he argues that this Court ought to have been satisfied that it had jurisdiction to make the consent order, and as it is his case that the Court lacks jurisdiction, it follows that the consent order is null and void.
Citing Republic v Procurement Administrative Review Board Ex- Parte Symphony Technology Limited (Kenya) & 2 Others [2016] eKLR, he argues that a donee only acts on behalf of the donor and a case in a suit always belongs to the donor or principal who is entitled at law to bring legal proceedings.
7.
The Applicant submits that he neither seeks to re-litigate the issue determined by the Court in its Ruling of 4th September 2020 (when it declined to determine the question of representation for want of jurisdiction), nor to be declared a substantive party in the matter but rather, he contends that he is a substantive party who ought to have been consulted in the consent.
8.
In opposing the application, the 1st and 2nd Appellants filed a replying affidavit deposed by Regina Anyika, the Company Secretary and Director of Legal, Housing Finance Company Limited, sworn on 15th October 2020 filed on 19th of October 2020.
9.
The Application is also similarly opposed by the Respondent Sharok Kher Mohamed Ali Hirji vide a Replying Affidavit sworn on 15th October 2020 lodged on 16th of October 2020.
10.
It is the case of both Appellants and supported by the Respondent) that the Applicant is a stranger to these proceedings; that he is not a proper party in these proceedings, as he was also not party to the proceedings either at the High Court or the Supreme Court, and therefore, they argue that he does not have the right to appear either in person or through his duly appointed representative to make an application for review.
11.
They contend that this current application introduces novel facts, namely, the dispute between the Applicant and the respondent on the power of Attorney, upon which no evidence has been led nor determination made in the courts below, and that the only option in this instance would be fresh action in an appropriate court. Additionally, that where a party wishes to set aside a consent judgement, there are only two options, review or a fresh action as held in Flora N Wasike v Destimo Wamboko [1988] eKLR.
12.
Citing this Court’s decision in Geoffrey M Asanyo & 3 Others v Attorney General [2018] eKLR, is the Appellants submit that the issues about the consent are being raised by a person who was not a party to the Consent Order, and the principle of privity of contract means that the rights and obligation of a contract, as the case may be, can only be enjoined or enforced by the parties to the same.
13.
Further, they cite the Canadian Supreme Court’s case in Rick v Brandsema 2009 SCC 10 where that court stated that a consent judgement is not a judicial determination on the merits of a case but only an agreement elevated to an order on consent, which they submit means that once a party has compromised the matter by consent, the Court has no power to go behind and enquire if the Court had jurisdiction to entertain the underlying dispute.
14.
They conclude by urging that this Application is an abuse of the court process, as the orders sought are largely similar to those in the previous application in the appeal.","15.
Having considered submissions from all parties, we observe that it is not in dispute that this Court’s decision (Maraga, CJ & P, Mwilu DCJ & VP, Ibrahim,Wanjala, Njoki, SCJJ) delivered on the 4th of September 2020, declined to delve into the issue of the proper representative of the principal, as in doing so, would be making a factual finding, which the Court did not have the requisite jurisdiction to do. Having done so, the proper parties to the suit at the time of that decision remained Housing Finance Company Kenya, Watts Enterprises Limited and Sharok Kher Mohamed Ali Hirji. The Applicant was not a party in that matter.
16.
Consequently, and as a result of that 5-bench decision of this Court, the parties to the suit, entered into a Consent before Lenaola SCJ, in which they agreed to compromise the entire suit by a Deed of Settlement dated 11th December 2019, marking Petition No. 46 of 2019 as settled.
17.
We are persuaded the High Court’s decision in in Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR 485, where Harris, J held, inter alia, that -
1.
A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.
2.
A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.”
18.
The Applicant is neither a party to previous related proceedings before this Court, and even then, he has not shown that the consent was based on fraud, collusion or by an agreement contrary to the policy of the Court given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the Court to set aside an agreement.
19.
Furthermore, the Applicant is not disputing that the respondent was a holder of the power of attorney and instituted the suit from the High Court to the Court of Appeal resulting in several decisions of the given Courts. However, he challenges extent, nature and validity of such power and consequent authority to deal with the matter. This is a factual dispute that cannot be resolved by this Court.
20.
We are therefore unable to find merit in his application and move to dismiss it, and consequently make the following orders:
(i)
The Notice of Motion dated 1st October 2020 and filed on 13th October 2020 is hereby dismissed.
(ii)
The Applicant shall bear the costs of the application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/71/eng@2021-03-24
Petition 42 of 2019,Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others (Petition 42 of 2019) [2021] KESC 35 (KLR) (24 March 2021) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",24 March 2021,2021.0,Nairobi,Civil,Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others,[2021] KESC 35 (KLR)               ,,"Brief facts
The 3rd respondent was employed under a three-year employment contract by the Kenya Vision 2030 Delivery Board (the Board) in the position of Director. The contract was renewable six months before its expiry. The 3rd respondent's employment contract was not renewed on grounds that his performance was below par. The 3rd respondent appealed to the Minister for Planning and National Development and Vision 2030 (the Minister). The Minister renewed his contract for a year but the Board declined to allow him back to work.
The 3rd respondent then sought the assistance of the Commission on Administrative Justice (CAJ). The conclusions of CAJ were that the Board violated articles 47 and 59 of the Constitution of Kenya, 2010 (Constitution) as well as sections 2 and 8(a), (b), and (d) of the Commission on Administrative Justice Act on fair administrative action. CAJ recommended the Board to pay the respondent the equivalent of twelve months' salary and allowances in compensation for the one-year period of the reviewed contract, to allow the 3rd respondent to collect his personal effects from his former office and offer him an unconditional apology for how they had treated him. The Board declined to implement the recommendations and CAJ filed judicial review proceedings at the High Court.
The High Court's findings were that it could not compel the implementation of CAJ's recommendations and that the only thing that CAJ could do when an organization failed to implement its recommendations was to make a report to the National Assembly which would take appropriate action under section 44(4) of the Commission on Administrative Justice Act. Generally, the High Court stated that since CAJ lacked coercive power to compel the implementation of its recommendations, the court could also not compel a Government agency to implement the recommendations. An exception to those rules which would allow the court to compel the implementation of such recommendations was where there was a gross abuse of discretion, manifest injustice or palpable excess of authority equivalent to a denial of a settled right to which the petitioner was entitled, and there was no other plain, speedy and accurate remedy. An appeal was lodged against the High Court's decision.
The Court of Appeal allowed the appeal and granted the orders of mandamus as sought and also monetary compensation for violation of fair administrative action rights. The Court of Appeal stated that CAJ's options in situations where its recommendations were not implemented were not limited to reporting to the National Assembly. It explained that article 254 of the Constitution did not suggest that recommendations had no force of law or were incapable of enforcement by a court of law.","C. Issues for Determination
27.
From the above submissions, the following issues crystalize for determination:
i.
Whether the recommendations of CAJ are binding on public bodies and if public bodies have an obligation to implement CAJ’s recommendations?
ii.
Whether the Court of Appeal had jurisdiction to award damages?
iii.
If the answer to (i) is in the affirmative, what are the appropriate reliefs?
(i) Whether the Recommendations of CAJ are Binding on Public Bodies?
28.
CAJ is established under section 3 of the CAJA as a successor to the Public Complaints Standing Committee. The CAJA is an Act of Parliament to restructure the Kenya National Human Rights and Equality Commission Justice pursuant to article 59(4) of the Constitution. Regarding the powers of CAJ, section 5 of the CAJA specifically provides as follows:
“
In addition to the powers of a Commission under article 253 of the Constitution, the Commission shall have power to—
(a)
acquire, hold, charge and dispose of movable and immovable property; and
(b)
do or perform all such other things or acts for the proper discharge of its functions under the Constitution and this Act as may lawfully be done or performed by a body corporate.”
Section 5 implies that the powers conferred upon CAJ are in addition to the power of commissions in article 253 of the Constitution. Article 253 of the Constitution makes provision for incorporation of Commissions, whilst article 254 of the Constitution makes provision for reporting by the same.
29.
All constitutional Commissions and independent offices have an obligation under article 254(1) of the Constitution, “as soon as practicable, after the end of each financial year to submit a report to the President and to Parliament”. These reports may be limited to a particular issue. From the foregoing provisions, it is evident to us that the CAJA was to give effect to article 59(4) of the Constitution. CAJ is also bound by the provisions of article 254(1) of the Constitution. We therefore find fault in the Court of Appeal’s conclusion that the reporting that is anticipated to be done by CAJ to Parliament, is separate or different from the reporting of its investigative report undertaken in discharge of its mandate in any given year. [30] Further, the CAJA is clear on the functions of the CAJ in the following terms:
“
[8]. The functions of the Commission shall be to—
(a)
investigate any conduct in state affairs, or any act or omission in public administration by any State organ, State or public officer in National and County Governments that is alleged or suspected to be prejudicial or improper or is likely to result in any impropriety or prejudice;
(b)
investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct within the public sector;
(c)
report to the National Assembly bi-annually on the complaints investigated under paragraphs (a) and (b), and the remedial action taken thereon;
(d)
inquire into allegations of maladministration, delay, administrative injustice, discourtesy, incompetence, misbehavior, inefficiency or ineptitude within the public service;
(e)
facilitate the setting up of, and build complaint handling capacity in, the sectors of public service, public offices and state organs;
(f)
work with different public institutions to promote alternative dispute resolution methods in the resolution of complaints relating to public administration;
(g)
recommend compensation or other appropriate remedies against persons or bodies to which this Act applies;
(h)
provide advisory opinions or proposals on improvement of public administration, including review of legislation, codes of conduct, processes and procedures;
(i)
publish periodic reports on the status of administrative justice in Kenya;
(j)
promote public awareness of policies and administrative procedures on matters relating to administrative justice;
(k)
take appropriate steps in conjunction with other State organs and Commissions responsible for the protection and promotion of human rights to facilitate promotion and protection of the fundamental rights and freedoms of the individual in public administration;
(l)
work with the Kenya National Commission on Human Rights to ensure efficiency, effectiveness and complementarity in their activities and to establish mechanisms for referrals and collaboration; and
(m)
perform such other functions as may be prescribed by the Constitution and any other written law.""
30.
From the foregoing provisions, it is not contested that CAJ is mandated to investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct within the public sector. We therefore agree with both superior courts’ finding that CAJ was mandated to entertain and make recommendations with regard to the 3rd respondent’s complaint.
31.
Under section 29 of the CAJA, once it has investigated a complaint arising from the carrying out of an administrative action of a public officer or any other public body, CAJ is under mandatory obligation to resolve the matter before it by conciliation, mediation or negotiation. If the matter cannot be resolved, and it determines that the administrative action was carried out unjustly or unreasonably, the CAJ shall make such recommendations as it deems fit.
32.
Section 41 of the CAJA also provides for action to be taken by CAJ following an inquiry in the following terms:
“
The Commission may, upon inquiry into a complaint under this Act take any of the following steps—
(a)
where the inquiry discloses a criminal offence, refer the matter to the Director of Public Prosecutions or any other relevant authority or undertake such other action as the Commission may deem fit against the concerned person or persons;
(b)
recommend to the complainant a course of other judicial redress which does not warrant an application under article 22 of the Constitution;
(c)
recommend to the complainant and to the relevant governmental agency or other body concerned in the alleged violation, other appropriate methods of settling the complaint or to obtain relief;
(d)
provide a copy of the inquiry report to all interested parties; and
(e)
submit summonses as it deems necessary in fulfilment of its mandate. “
33.
Furthermore, under section 44 of the CAJA, where CAJ concludes that the person or State Organ or public office or organization being investigated is guilty of misconduct, it has an obligation to report the matter to the appropriate authority.
34.
The bone of contention, then, is whether these recommendations are binding on such public bodies.
35.
In the Matter of the National Land Commission, Advisory Opinion Reference 2 of 2014; [2015] eKLR, in her concurring opinion, Ndungu, SCJ, defined the words ‘recommend’, advise, research, investigate, encourage, assess, monitor and oversight’ to mean actions that provide a facilitative role rather than a primary one. In her opinion, the context in which those words are used, presumes that there is another body or organ whom such recommendations, advice, research, investigations, encouragement, and assessment shall be sent to, received by, and in relation to which the proposals shall be implemented. In her opinion, a body with oversight function, and a Body that implements the recommendations of the former, are different, and their roles do not overlap. For this reason, there is need for clear separation of roles between a body providing oversight, and a body upon which the oversight is to be conducted.
36.
Also, In Re Council of Governors, this court defined a recommendation as follows:
“
(52)
In our considered opinion, the term “recommendation” is the operational yardstick in this entire debate. In this regard, we agree with those who have submitted that this term should first and foremost, be accorded its literal and natural meaning. Towards this end, generally speaking, a recommendation is a suggestion or proposal, for a certain cause of action. Such proposal does not ordinarily bind the person to whom, or entity to which, it is addressed. It is for the recipient of a recommendation, to determine what import he should attach to it. However, the categories of recommendations are never closed. Recommendations may differ, in their meaning, nature and effect, depending on the context in which they are deployed.”
37.
On the binding nature of the recommendations by the Commission on Revenue Allocation, this court found as follows:
“
60.
Taking all these into account, it is our considered opinion that the recommendations by the Commission on Revenue Allocation are not binding upon either the National Assembly, or the Senate. What the two Houses cannot do however is to ignore or casually deal with such recommendations. To hold otherwise, would elevate the Commission above Parliament in the legislative chain. We therefore agree with both the Speaker of the National Assembly and the Law Society in their submissions to the effect that, it could not have been the intention of the makers of the Constitution to supplant the legislative authority of Parliament in matters Finance, by establishing the Commission on Revenue Allocation.” [emphasis added]
38.
Similarly, In Re Council of Governors, this court was persuaded by the High Court decision Speaker, Nakuru County Assembly & 46 others v Commission on Revenue Allocation & 3 others, HC Constitutional Petition No 368 of 2014; [2015] eKLR, where Lenaola, J (as he then was) found that the recommendations addressed to all the 47 County Assemblies and County Executives, by the Commission on Revenue Allocation were not binding to the Senate but for good order, reasons for a deviation must be given.
39.
From the foregoing Constitutional provisions, the statutory provisions and authorities highlighted, it is our finding that whereas CAJ has the requisite mandate to make recommendations to a public officer or a public body, the same is not binding. A recommendation can only be binding when the same is specifically provided for in the Constitution or in law. Neither the Constitution nor the CAJA states that CAJ’s recommendations are binding. Consequently, the Board had the discretion to determine the manner in which they were to implement CAJ’s recommendations. Towards that end, we find and affirm that the CAJ’s recommendations to inter alia: pay the 3rd respondent an equivalent of twelve months salary and allowances in compensation for a one-year period of the reviewed contract; facilitate the 3rd respondent to access his personal effects from his former office; and offer him an unconditional apology for the treatment meted out to him, were not binding upon the Board. We therefore fault the appellate court’s conclusion that CAJ’s recommendations were binding on the Board.
40.
We agree with the Board’s submission and the High Court’s finding that under section 42(4) of the CAJA, the remedy where there has been non-compliance with the recommendations of the CAJ, is for the CAJ to prepare a report of the Board’s failure to implement the recommendations to the National Assembly for appropriate action. CAJ ought to have explored the options set out in section 41 of CAJA. Ultimately, we agree with the trial court’s finding that not even a court of law can dictate the manner in which a recommendation should be implemented. The only exception, as pointed by the trial court, is where “there is gross abuse of discretion, manifest injustice or palpable excess of authority” equivalent to denial of a settled right which the aggrieved party is entitled, and there is no other plain, speedy and accurate remedy.” It is our finding that the circumstances of the appellant’s case do not fit the said exception.
41.
Even where such exceptional circumstances are pleaded, who then bears the burden of proving abuse of discretion? It is our opinion that where a party is so aggrieved by the exercise of discretion or lack of it thereof, by a pubic office of officer or institution, it is for that party to prove that their case fits within the four corners of the exception set above. In the instant appeal, we agree with the trial court that the 3rd Respondent did not discharge this burden of proof. Mere allegation that the Board declined to comply with the CAJ’s recommendation is not enough to prove gross abuse of discretion, manifest injustice or palpable excess authority.
42.
We have observed that the question on the implementation of recommendations to public entities from Commissions has been recurring in different cases before this court and other superior courts. As such we are of the opinion that the following guiding principles ought to assist courts when considering a matter concerning the binding nature of recommendations from Commissions or other public bodies:
Guiding Principles on the recommendations from Commission to public bodies:
a.
Any power to make a recommendation ought to be specifically provided for in the Constitution or in law;
b.
Recommendations do not necessarily bind the person to whom, or entity to which, it is addressed;
c.
A recommendation from a Commission is only binding upon a public entity where it has been specifically provided for in the Constitution or in law;
d.
The manner in which a recommendation is to be implemented by a Public entity is discretionary;
e.
Exercise of discretion in implementing a recommendation may only be interfered where there is gross abuse of discretion, manifest injustice or palpable excess of authority
f.
Any recommendation by a Commission which is not implemented may be reported to Parliament for any further action, if necessary;
43.
We need to note at this juncture that Commissions are supposed to act as watchdogs and co-operate and work with government arms. It is the duty of Parliament to implement reports from commissions pursuant to article 254(1) of the Constitution and section 8 of the CAJA. Commissions therefore cannot implement their own recommendations nor force a recommendation on a public body lest they usurp the role of Parliament, which is the organ vested with the mandate to enforce implementation. For avoidance of doubt, a public office or body or state organ to whom a recommendation is made need not appeal against such a recommendation for it not to be binding on it.
(ii) Whether the Court of Appeal had jurisdiction to award damages?
44.
The Court of Appeal allowed the 3rd respondent payment of twelve (12) months’ salary as compensation in lieu of the one-year renewal of contract which the Board declined to accept; access to the office to collect personal effects, and an apology. Over and above that, the Court of Appeal awarded the 3rd respondent a sum of Kshs 700,000.00 upon its finding that his right to fair administrative action had been infringed by the Board.
45.
The Board submits that CAJ did not have the mandate to award any relief to the 3rd respondent as it had declined to renew his contract, a decision communicated to him by the Minister. The Board faults the Court of Appeal for converting what was a normal Judicial Review Application into a constitutional petition and proceeding to award damages instead of referring the matter back to the High Court. The Board also urges that the dispute between the parties was whether the 3rd respondent was entitled to the renewal of his employment and that the same ought to have been taken to the Employment and Labour Relations Court. On the contrary, CAJ and the 3rd Respondent submit that CAJ had the mandate to make the compensation and that the appellate court rightly to awarded damages and compensation where none was made by the trial court.
46.
Having found above that CAJ’s recommendations did not bind the Board, it is our ultimate finding that there was no basis for the Court of Appeal to award compensation to the 3rd respondent. Although CAJ has the requisite mandate to award compensation under section 8(c) of the CAJA, (which section requires it to report to the National Assembly bi-annually on the complaints investigated and the remedial action taken thereon), it is our finding that section 8 of the Act cannot be read in isolation. It has to be read together with section 41 which provides for action taken by CAJ after an inquiry. Section 41 provides as follows:
“
The Commission may, upon inquiry into a complaint under this Act take any of the following steps—
a.
where the inquiry discloses a criminal offence, refer the matter to the Director of Public Prosecutions or any other relevant authority or undertake such other action as the Commission may deem fit against the concerned person or persons;
b.
recommend to the complainant a course of other judicial redress which does not warrant an application under article 22 of the Constitution;
c.
recommend to the complainant and to the relevant governmental agency or other body concerned in the alleged violation, other appropriate methods of settling the complaint or to obtain relief;
d.
provide a copy of the inquiry report to all interested parties; and
e.
submit summonses as it deems necessary in fulfilment of its mandate.”
47.
In view of this, it is our finding that having concluded its investigation or inquiry on the 3rd respondent’s claim, CAJ ought to either have referred the matter to the relevant authority (which in our opinion includes the National Assembly); or recommended to the 3rd respondent a course of other judicial redress; or recommend to the complainant appropriate methods of settling the complaint or to obtain relief; provide a copy of the inquiry report to all interested parties (in our opinion including the National Assembly) ; or submit summonses as it deems fit to fulfill its mandate.
48.
Therefore, it is our finding that the because the dispute between the 3rd respondent and the Board was an employer-employee dispute, CAJ ought to have recommended to the 3rd respondent the appropriate method of settling the dispute. In our opinion, one of the methods would have been seeking redress at the Employment and Labour Relations Court (ELRC) which is established to hear and determine disputes relating to employment and labour relations and for connected purposes. The ELRC has the power make appropriate remedies for the 3rd respondent pursuant to article 162(2) and 165(5) of the Constitution and section 12(3) of the Employment and Labour Relations Act including interim preservation orders; prohibitory order; an order of specific performance; a declaratory order; an award of compensation; an award of damages; an order of reinstatement among other.
49.
CAJ cannot usurp the role of the ELRC over employment disputes and award compensation. CAJ, under section 8(g) of the CAJA, can only recommend compensation or other appropriate remedies against a person or bodies to which the Act applies. Having found elsewhere in this Judgement that recommendations can only be binding where specifically provided for, we conclude that CAJ lacks the requisite jurisdiction to award compensation in the circumstances. In other words, even if CAJ recommends compensation after concluding its inquiry, there is an additional step or action to be taken by the entity or person to whom the recommendation has been made. That entity or person may or not implement the same depending on the manner on how they choose to exercise their discretion, unless otherwise provided for in the law. Consequently, we set aside the reliefs awarded by the Court of Appeal.
50.
On costs, this court has previously settled the law on this issue, stating that costs follow the event in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition No 4 of 2012; [2014] eKLR and that a court has the discretion in awarding costs in its decision. This remains the law. In the instant case, we award costs of this appeal to the Board.
51.
Consequently, we allow the appeal.
D. – Orders
52.
Ultimately, upon our finding above, the final orders are that:
1.
The Petition of Appeal dated November 6, 2019 and filed on November 7, 2019 be and is hereby allowed.
2.
The Judgment of the Court of Appeal sitting at Nairobi, dated September 27, 2019 is hereby quashed and set aside.
3.
For the avoidance of doubt, the Judgment of the High Court delivered on February 26, 2015, be and is hereby upheld.
4.
Costs of this appeal to abide the appeal.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/35/eng@2021-03-24
Civil Application 16 of 2020,Onyango & 23 others v Heritage Insurance Company Limited (Civil Application 16 of 2020) [2021] KESC 56 (KLR) (Civ) (24 March 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"AI Tullu,                                                                                                                          EN Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",24 March 2021,2021.0,Nairobi,Civil,Onyango & 23 others v Heritage Insurance Company Limited,[2021] KESC 56 (KLR)               ,,"1.
The cause of action in this matter can be traced from the Employment and Labour Relations Court Cause No. 781 of 2015, Christopher Onyango & 23 others v. Heritage Insurance Company Limited. There were four issues in dispute namely, termination of the Applicants’ employment on redundancy contrary to Section 40 of the Employment Act; termination of Applicants’ employment being unfair and wrongful contrary to Section 45 of the Employment Act; violation of theApplicants’ rights to legitimate expectation and contravention of Article 147 of the Constitution; and the Respondent’s failure to follow legal procedures in effecting the termination of the Applicants’ employment.
2.
The Employment and Labour Relations Court at Nairobi (Monica Mbaru, J.) delivered its Judgment on 7th April 2016 awarding compensation to the 24 Applicants. They were awarded various sums of monies in respect of salaries for the number of years each one of them had worked, compensation, damages for discrimination, notice and severance pay. In doing so, the Judge took into account the Respondent’s two human resource Handbooks; one issued in 1994 and another subsequent one issued in 2013. The former prescribed a 30 days’ redundancy notice while the latter reduced the period from 30 days to 15 days. The Learned Judge was of the view that the Applicant’s terms of employment fell within the parameters of the 2013 Handbook. Consequently, she declared the redundancy notice issued to the Applicants unlawful; the termination of employment unfair; and found the acts of the Applicants of issuing redundancy notice and terminating the Applicants’ employment, unlawful and amounted to discrimination against the Applicants.","Issues for Determination
18.
From the foregoing submissions, the following issue arises for determination:
Whether the matters raised by the Applicant are of general public interest and importance as required by Article 163(4)(b) of the Constitution?
19.
We note at paragraph 16 of the Applicant’s supporting affidavit, the following have been listed as matters of general public importance: whether persons affected by the redundancy processes have a clear interest in knowing what their entitlements would be in such circumstances, bearing in mind the terms of employment, the provisions of the Employment Act, and the applicable employment policies and constitutional provisions; if so, whether this Honourable Court has a Duty to create certainty in the law regarding redundancy and remove the uncertainty created by the Court of Appeal in Civil Appeal No. 114 of 2016; whether the burden of proving redundancy should shift from the employer to the employee and if so, at what point?; and whether the burden of proving change in employment terms rests with the employer or with the employee?
20.
We however find that the issues consequently framed were never framed as such before the Court of Appeal. Failure to specify those issues led to the learned Judges’ conclusion at page 5 of their Ruling that “…we have not been show the specific elements of general public importance which the Applicants attribute to the matter for which certification is sought”. The Applicants should have specified the said issues in their application before the appellate Court for it to render its determination on the same. Consequently, in determining the instant application, we shall therefore be guided by the issues as raised by the Applicants for certification before the Court of Appeal. The grounds raised by the Applicants for certification, upon which the Court of Appeal made a determination, were that: the Court of Appeal departed from settled jurisprudential position thereby introducing uncertainty into the governing redundancy and the Court of Appeal’s finding raised substantial questions of constitutional interpretation of Labour rights which affect not just the right of the litigants, but also extend to the public at large and of the construction of the scope of the right to fair labour practices, both of which are questions frequently deliberated upon by the Employment and Labor relations Court and subordinate courts, hence the general public importance.
21.
This Court has made itself clear on instances in which it can exercise its powers to review a decision of the Court of Appeal in several of its authorities including the following cases Hermanus Case, Malcom Bell Case and Town Council of Awendo v Nelson Oduor Onyango & 13 others, Misc. Application No. 49 of 2014; [2015] eKLR (the Town Council of Awendo Case).
22.
In the Town Council of Awendo Case we gave specific guiding principles as follows: -
“
21
i.
for an intended appeal to be certified as one involving a
“
matter of general public importance,” the intending appellant is to satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
ii.
where the matter in respect of which certification is sought raises a point of law, the intending appellant is to demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;
iii.
such question or questions of law is/are to have arisen in the Court or Courts below, and must have been the subject of judicial determination;
iv.
where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;
v.
mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution;
vi.
the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance,” which he or she attributes to the matter for which certification is sought;
vii.
determinations of fact in contests between parties are not, by and of themselves, a basis for granting certification for an appeal before the Supreme Court;
viii.
issues of law of repeated occurrence in the general course of litigation may, in proper context, become ‘matters of general public importance’, so as to be a basis of certification for appeal to the Supreme Court;
ix.
questions of law that are, as a fact, or as appears from the very nature of things, set to affect considerable numbers of persons in general, or as litigants, may become ‘matters of general public importance’, justifying certification for final appeal in the Supreme Court;
x.
questions of law that are destined to continually engage the workings of the judicial organs, may become ‘matters of general public importance’, justifying certification for final appeal in the Supreme Court;
xi.
Questions with a bearing on the proper conduct of the administration of justice, may become ‘matters of general public importance,’ justifying certification for final appeal in the Supreme Court.”
23.
Having perused the Judgment of the trial Court and that of the Court of Appeal, the issues for determination before the two courts, the Application for certification before the Appellate Court, and now the one before this Court, we agree with the Court of Appeal’s determination that the intended appeal does not qualify for certification for final appeal before the Supreme Court. The Applicants have also not demonstrated how a determination of their issues transcend the parties herein.
24.
Furthermore we have noted, that despite contending that the Court of Appeal departed from settled jurisprudential position thereby introducing uncertainty into the governing redundancy, the Applicants have not, neither in the application before the Court of Appeal nor the one before this Court, pleaded the Authorities which they allege the Court of Appeal departed from as was for example specifically pleaded in Kenfreight (E.A) Limited v Benson K. Nguti, SC. Petition No. 37 of 2018; [2019] eKLR (the Kenfreight (E.A) Limited Case). As it the law, parties are bound by their pleadings. Towards that end, we find and agree with the Learned Judges of Appeal that there is no uncertainty in law, arising from contradictory precedents for this Court’s resolution.
25.
Moreover, the Applicants have not demonstrated how the determination on a manual that was applicable at the time of terminating their contract can qualify to be a matter of general public interest considering that not all employers have more than one Handbook. We therefore agree with the Court of Appeal’s finding that the determination made in both Courts concerned contested facts between the Applicants and the Respondent, hence, cannot form the basis for granting certification to appeal to this Court. Nevertheless, we note from decided case law, CMC Aviation Limited v Mohammed Noor; Civil Appeal No.199 of 2013, [2015] eKLR and Kenfreight (E.A.) Limited v Benson K. Nguti Civil Appeal No. 31 of 2011, the Court of Appeal has made a determination on the binding nature of company policies or put differently, company practices are binding. The Supreme Court upheld this finding in the Kenfreight (E.A) Limited Case. We therefore find the courts’ finding on question of “the binding nature of Handbooks/Manuals/Policies and/or their equivalent” already settled and does not need further determination by this Court.
26.
Accordingly, this Application fails to meet the principles enunciated by this Court in the Hermanus Case, the Malcom Bell case and the Town Council of Awendo Case and is therefore dismissed with costs.
Consequently, we make the following final Orders:
i.
The Application dated 2nd July 2020, is hereby dismissed.
ii.
The Applicants shall bear the costs of the Respondent in relation to this application.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/56/eng@2021-03-24
Reference 1 of 2018,"County Assembly of Mandera County v Governor, Mandera County & another (Reference 1 of 2018) [2021] KESC 59 (KLR) (Civ) (17 March 2021) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",17 March 2021,2021.0,Nairobi,Civil,"County Assembly of Mandera County v Governor, Mandera County & another",[2021] KESC 59 (KLR)               ,,"A. Introduction
(1)
The Reference before the Court is dated 15th March 2018, and lodged on 19th March, 2018. It seeks this Court’s Advisory Opinion, as to whether, the continued stay in office after a general election, of a serving County Executive Committee (“CEC”) or of CEC Members whose re-appointment has been rejected by a County Assembly, is legal in lieu of Section 47 of the County Governments Act, and whether, such a CEC can hold office indefinitely or until a new Committee is constituted.
B. The Application
(2)
The interested parties, pursuant to their admission as such, in a Ruling delivered on 23rd January 2020, have filed an application dated 5th March, 2020 and supported by the Affidavit of Adan Kullow. They seek Orders to strike out the Reference on grounds that the County Assembly of Mandera, lacks the competence to make a request for an Advisory Opinion. They also submit that the questions raised in the Reference, have been previously litigated. It is their case that, this application is brought in bad faith and without merit as there is no lacuna in law.
C. The Interested Parties’ Case
(3)
In their written submissions dated 5th March 2020, the interested parties submit that the applicant lacks the locus standi to move the Court for an Advisory Opinion under Article 163 (6) of the Constitution as it is neither a National Government, County Government, nor a State Organ (in terms of Article 260), established under the Constitution. They add that the County Assembly is established and governed by the County Government Act. The mere mention of the Constitution, argue the interested parties, does not make the County Assembly, a constitutional entity. In support of their position, the interested parties rely on this Court’s Decision in The Council of Governors and the Attorney General & 7 Others Reference No. 2 of 2017 [2019] eKLR.
(4)
The interested parties further urge, that the issues concerning the nomination, appointment, and transition of the Mandera County Executive Committee following the general election raised in the Reference have been previously litigated before the High Court. They state that the Governor of Mandera County and the Mandera County Assembly were parties to the High Court Petition No 517 of 2017 Shillow Abubakar Hassan v. Governor Mandera County & Another, Petition 502 of 2017 Hussein Osman Hassan v. Governor Mandera County & Another and Petition No. 7 of 2018 Simba Hasheem Gedow v. Governor Mandera County & 2 Others Petition 17 of 2018, in which all the issues raised in the Reference herein were canvassed.
(5)
They further submit that at the time of filing the Reference, Petition No. 517 of 2017 and Petition No. 502 of 2017 had been withdrawn, while Constitutional Petition No. 17 of 2018 was pending determination. In a Judgment delivered on 17th December 2018, the High Court dismissed Petition No. 17 of 2018, and held that the interested parties herein, had complied with the constitutional and statutory provisions in constituting the Mandera CEC. They argue that if it was dissatisfied with this Judgment, the County Assembly of Mandera ought to have filed an appeal to the Court of Appeal and a subsequent appeal to this Court instead of seeking an Advisory Opinion.
(6)
It is also submitted that that there is no lacuna in law as Section 42 of the County Government Act, unequivocally provides that after a general election, the outgoing CEC remains in office, until a new CEC is constituted. Reference is also made to Section 10 of the Public Appointments (County Assemblies Approval) Act, which sets out the criteria for re-submitting nominees’ names previously rejected by the County Assembly, where the circumstances relied on at the time of rejection, did not exist or had ceased to exist.
(7)
In conclusion, the interested parties submit that, the applicant has deliberately chosen not to disclose the fact that, having sought the opinion of the Attorney-General, it was advised by the latter, not to seek an Advisory Opinion from this Court. The Attorney-General counseled that by dint of Article 198 of the Constitution, the CEC as last constituted remains competent to perform administrative functions until a new CEC is constituted. By failing to disclose this fact, submit the interested parties, the applicant has approached this Court in bad faith.","F. Issues For Determination
(12)
On the basis of the pleadings and submissions by the parties herein, we consider that two issues merit our determination; these are:
(i)
Whether the applicant lacks the locus standi to move the Court for an Advisory Opinion under Article 163 (6) of the Constitution; and
(ii)
Whether the questions raised in the Reference for an Advisory Opinion have been previously litigated before the High Court.
Locus Standi
(13)
It is the interested parties’ contention that the applicant is not a National Government, County Government, or a State Organ in terms of Article 260 of the Constitution. As such, the latter lacks the locus standi to move the Court for an Advisory Opinion under Article 163 (6) of the Constitution. The interested parties submit that the applicant is established and regulated by the County Government Act as opposed to the Constitution.
(14)
Article 163(6) of the Constitution provides that:
“
The Supreme Court may issue an Advisory Opinion at the request of the National Government, any State Organ, or any County Government with respect to any matter concerning County Government”.
(15)
In Re the Matter of the Interim Independent Electoral Commission, Constitutional Application No. 2 of 2011, [2011] eKLR, in line with Article 163(6) of the Constitution, this Court has developed a number of principles to help guide those intending to invoke its Advisory Opinion Jurisdiction. At paragraph [83], the Court stated: inter alia;
“
(i)
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government”, will be determined by the Court on a case-by-case basis.
(ii)
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae…..” (Emphasis added).
(16)
It is against the foregoing Principle Number (ii) that we must determine whether the applicant is a one of those organs contemplated by Article 163 (6) as would qualify to seek an Advisory Opinion. Towards this end, we must direct our attention to Article 176 (1) of the Constitution, which provides that;
“
There shall be a County Government for each County consisting of a County Assembly and a County Executive.”
(17)
Article 177 of the Constitution on the other hand, provides for the membership of a County Assembly. Such membership comprises of elected and nominated members.
(18)
From the foregoing provisions, it is clear that a County Assembly is one of the two critical organs that constitute a County Government. There can be no County Government without a County Assembly. It is therefore erroneous for the interested parties to suggest that the applicant has no locus standi. Secondly, it is not in doubt that the subject matter of this Reference revolves around the issue of transition of County Executive Committees after a general election. This is a matter that squarely concerns County Government, within the meaning of Article 163 (6) of the Constitution.
On Res Judicata
(19)
A second ground on which this Court’s jurisdiction is contested is that the subject-matter of the Reference is similar to the issues raised in High Court Petitions Nos. 517 of 2017, Shillow Abubakar Hassan v. Governor Mandera County & Another, 502 of 2017, Hussein Osman Hassan v. Governor Mandera County & Another (withdrawn) and No. 7 of 2018, Simba Hasheem Gedow v. Governor Mandera County & 2 Others. The interested parties submit that on the basis of the doctrine of res judicata, this Court cannot proceed to render an Advisory Opinion on matters that are either pending before, or have been determined by the High Court.
20.
Having perused the pleadings/proceedings in Constitutional Petition No. 17 of 2018, and the resultant Judgment by the High Court (Chitembwe, J.) delivered on 17th December 2018, it is clear to us that the main issue in the petition was whether, the appointment to the Mandera CEC was in violation of the law. In determining this issue, the learned Judge addressed himself to the provisions of Section 42 (2) of the County Government Act regarding the constitution of a new Executive Committee within 21 days after the members of the County Assembly are sworn in, and the transition from the outgoing to the incoming CEC (Section 42(1) thereof). The learned Judge also interrogated the provisions of Section 10 of the Public Appointments (County Assemblies) Approval Act, concerning the re-submission of names of nominees for consideration by the County Assembly after an initial rejection by the latter. Finally, the learned Judge had to make a decision regarding the constitutionality or otherwise of the appointments to the Mandera CEC.
(21)
The Reference before us raises three issues viz, whether the continued stay in office of serving CEC Members when their re-election had been rejected by the County Assembly was legal in lieu of the provisions of Section 47 of the County Governments Act, whether the CEC Members not re-nominated by an incoming Governor can continue to hold office, and whether persons serving as CEC Members before a general election can continue to hold office indefinitely or until a new committee is constituted.
(22)
We find that the issues raised in the Reference are substantially similar to those determined by the High Court in Constitutional Petition No. 7 of 2018. These issues, having been so determined, cannot be resuscitated at the Supreme Court under the guise of an Advisory Opinion. Any party aggrieved by the decision of the High Court, can only challenge the same, by way of an appeal to the Court of Appeal and if still dissatisfied, such party may appeal to this Court.
(23)
Having so found, we have no hesitation in declaring this Reference for an Advisory Opinion, incompetent and an abuse of the process of Court. The same cannot therefore escape an Order for dismissal.
G. Orders
24.
....
(i)
The Notice of Motion Application of 5th March 2020, is hereby allowed.
(ii)
The Reference for an Advisory Opinion dated 15th April 2017, is hereby dismissed.
(iii)
The costs of this Application and the Reference shall be borne by the applicant.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/59/eng@2021-03-17
Application 13 of 2020,Equip Agencies Limited v I & M Investment Bank & 3 others (Application 13 of 2020) [2021] KESC 70 (KLR) (17 March 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",17 March 2021,2021.0,Nairobi,Civil,Equip Agencies Limited v I & M Investment Bank & 3 others,[2021] KESC 70 (KLR)               ,,"Brief facts
The Applicant sought an order of injunction restraining the respondent from in any way interfering with the applicant’s ownership or title to the suit property pending the hearing and determination of Petition No. 10 of 2020. The Petition sought to appeal the Ruling and Order of the Court of Appeal wherein the Appellate Court, while determining an application for injunction brought under rule 5 (2) (b) of the Court of Appeal Rules, affirmed the High Court’s Ruling that the applicant had failed to meet the threshold for grant of an injunction pending the hearing and determination of the substantive suit.","D. Issues For Determination
9.
Two issues fall for the court’s consideration i.e., whether this court has jurisdiction to hear and determine the instant application and subsequently the appeal; and whether the court should grant orders for injunction.
E. Determination on Jurisdiction
10.
The applicant urges that this court has jurisdiction to grant interlocutory orders and relies on this court’s decisions in the Teachers Service Commission Case and Malcom Bell Case. It also submits that the appeal and instant application are arguable as the Court of Appeal exceeded its jurisdiction and delved into the merits of the case pending before the High Court, contrary to this court’s finding in Teachers Service Commission Case and Deynes Muriithi Case.
11.
On the other hand, it is the 3rd respondent’s submission first, that this court lacks jurisdiction under article 163(4)(a) of the Constitution as the appeal does not involve matters of interpretation and application of the Constitution. Secondly, the 3rd respondent submits that, whereas this court has jurisdiction to grant interlocutory orders, it is devoid of jurisdiction to hear appeals against a Ruling of the Court of Appeal made under rule 5(2)(b) of the Court of Appeal Rules. It relies on this court holding in Stanley Kangethe Kinyanjui Case, and Deynes Muriithi Case.
12.
In Daniel Kimani Njihia v. Francis Mwangi Kimani & another SC Application No 3 of 2014 [2015] eKLR (Daniel Kimani Njihia Case), this court stated:
‘[21]
……. Not all decisions of the Court of Appeal are subject to appeal before this Court. One category of decisions we perceive as falling outside the set of questions appealable to this court, is the discretionary pronouncements appurtenant to the Appellate Court’s mandate. Such discretionary decisions, which originate directly from the Appellate Court, are by no means the occasion to turn this court into a first appellate Court, as that would stand in conflict with the terms of the Constitution.’ [Emphasis added]
13.
From the pleadings and submissions before us, it is undoubtedly clear that under paragraph 2 of the said Ruling, the application before the Court of Appeal was brought under rule 5(2)(b) of the Court of Appeal Rules. The impugned Ruling was arrived at by the Court of Appeal in exercise of its discretionary powers. From the decisions of this court in Teachers Service Commission Case, Deynes Muriithi Case, Daniel Kimani Njihia Case, etc, it is clear that save in very exceptional circumstances, an appeal does not lie to this court, from the Court of Appeal’s Ruling under rule 5(b) of that Court’s Rules. We do not see how the application before us has established any basis for an exception to our decisions cited above.
14.
By the same token, we don’t see how our holding in the Teachers Service Commission Case is distinguishable. There is no substantive Judgement by the Court of Appeal on the basis of which this court can grant an injunction in the manner and style, as prayed by the applicant. The substantive dispute still remains to be resolved by the High Court. In Boniface Katana Kilaveri v Ethics & Anti-Corruption Commission & Commissioner of Lands; SC Petition No 15A of 2016, [2018] eKLR, this court held that where the substantive matter is still pending before the High Court, the Supreme Court would be hesitant to assume jurisdiction. The court stated:
“
…..we reiterate that the substantive matter still lies at the High Court and until it has been heard and determined, and the proper appellate processes have been followed, we find that this court does not have jurisdiction to entertain this appeal.”
15.
Consequently, we must arrive at the inescapable conclusion to the effect that this court lacks jurisdiction to entertain both the application and intended appeal.
F. Orders
i.
The application dated June 26, 2020, is hereby dismissed;
ii.
The decision of the Court of Appeal delivered on May 8, 2020, declining Orders for injunction is hereby affirmed;
iii.
Consequently, Petition No 10 of 2020 is hereby dismissed.
iv.
The costs of this application and Petition shall be borne by the applicant.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/70/eng@2021-03-17
Application 33 of 2020,Kenya Bureau of Standards v Geo Chem Middle East (Application 33 of 2020) [2021] KESC 60 (KLR) (17 March 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",17 March 2021,2021.0,Nairobi,Civil,Kenya Bureau of Standards v Geo Chem Middle East,[2021] KESC 60 (KLR)               ,,"A. Introduction
1.
The application before the Court is dated 23rd December 2020, and lodged on 28th December, 2020. It seeks to review and stay this Court’s Judgment and Orders issued on 18th December 2020, in SC Petition No. 47 of 2019. It is brought under Sections 3, and 21 (2) & (4) of the Supreme Court Act and Rules 3 (1) & (5), 28 (5) and 32 of the Supreme Court Rules, 2020.
2.
In the impugned Decision, this Court overturned the Court of Appeal Judgment (Karanja, Sichale & Mohammed, JJ,A.) delivered on 22nd November, 2019 in Civil Appeal No 259 of 2018, and affirmed the High Court Judgment (Ochieng, J.) delivered on 30th May, 2017 in HCCC Miscellaneous Cause Nos. 455 and 501 of 2016, where in, the trial Court adopted an arbitral award and directed the applicant to pay the sum of USD 15, 401,504.70 and costs of the arbitration.
B. The Application
3.
The application is supported by the Supporting and Supplementary Affidavits sworn by Luise Rasanga on 23rd December, 2020 and 6th January, 2021 respectively. It is opposed by the Replying and Supplementary Affidavits sworn by Pradeep Gopal and Fredrick Ngatia, S.C, on 7th and 13th January, 2021 respectively.","D. Issues For Determination
18.
On the basis of the pleadings and submissions by the Parties herein, we consider that two issues merit our determination; these are:
(i)
Whether the application meets the threshold for grant of review orders; and
(ii)
If the answer to (i) above is in the affirmative, what remedies are available.
E. Analysis
(i) Review
19.
It is the applicant’s contention that, the Motion is meritorious and raises exceptional circumstances for review. To support this argument, the applicant faults this Court’s Judgment on various grounds that, the Court found it lacked jurisdiction to entertain the appeal, but granted the Orders sought. It also faults the Court’s decision, for being predicated on a jurisdictional error apparent on the face of the record, for retrospectively relying on its decision in Nyutu and Synergy Cases, for requiring a bench of the Court of Appeal to overturn orders granted by a different appellate bench, for assuming supervisory jurisdiction over the Court of Appeal, for violating its rights to fair hearing under Article 50 of the Constitution, and for erroneously equating a legal issue on jurisdiction to a factual issue on merits of the arbitral award.
20.
The respondent on the other hand, contends that the application fails to disclose any ground for review. It is the respondent’s further submission that, the applicant’s grounds for review fall outside the purview of Section 21 (4) of the Supreme Court Act, and were an invitation to the Court, to without jurisdiction sit on appeal of its own decision.
21.
In addition, the respondent agrees with this Court’s decision and urges that the Court, had jurisdiction to determine the appeal before it, correctly found that the appeal window to the Court of Appeal, in relation to a contest on an arbitral award is severely restricted, correctly applied its decision in the Nyutu and Synergy Cases as the yardstick for determining leave to appeal under Section 35 of the Arbitration Act, and correctly declined to delve into the merits of the arbitral award.
22.
The legal position as regards this Court’s power to review its own decision was settled in the Fredrick Otieno Outa Case, [supra], wherein this Court found that, as a general rule, the Supreme Court has neither jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner contemplated by Section 21(4) of the Supreme Court Act. It was however stated that, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice.
23.
Subsequently, the Court set out the exceptional circumstances in which it can vary any of its Judgments, Rulings or Orders, limiting them to instances where;
(i)
The Judgment, Ruling, or Order, is obtained, by fraud or deceit;
(ii)
the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
(iii)
the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;
(iv)
the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision. [Emphasis added].
24.
After considering the applicant’s submissions, we do not see how the Motion meets the conditions precedent set out in Fredrick Otieno Outa [supra]. The applicant has failed to demonstrate, how, if at all, the Judgment it seeks to review can be impugned on any of the four grounds set out above.
25.
It is clear to us that the application before us is a disguised appeal which seeks to reopen Matters already determined with finality by this Court. In Fredrick Otieno Outa [supra], we emphasized the principle that an application for review, was not intended to give a party an opportunity to appeal, or relitigate its case. Where such a review is sought, an applicant must lay a basis, to the satisfaction of the Court, that the application for review satisfies the set criteria. This position is restated in Mohamed Fugicha v. Methodist Church in Kenya (through its registered trustees) & 3 others, SC Application No 4 of 2019, [2020] eKLR and Parliamentary Service Commission v. Martin Nyaga Wambora & others; SC Application No 8 of 2017, [2018] eKLR.
26.
Having found that the application for review is unmeritorious, we have no hesitation in dismissing it. We consequently make the following Orders:
F. Orders
(i)
The Notice of Motion dated 23rd December, 2020 and filed on 28th December 2020, is hereby dismissed;
(ii)
The applicant shall bear the costs of this application.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/60/eng@2021-03-17
Application 26 of 2020,Kenya National Highway Authority v Cycad Properties Limited & 33 others (Application 26 of 2020) [2021] KESC 69 (KLR) (17 March 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",17 March 2021,2021.0,Nairobi,Civil,Kenya National Highway Authority v Cycad Properties Limited & 33 others,[2021] KESC 69 (KLR)               ,,"A. Introduction
1.
This application is dated 17th September 2020, and lodged on 21st September 2020, seeking an Order for extension of time to file a Petition and Record of Appeal, against the majority Judgment and Order of the Court of Appeal (Ouko, Sichale & Odek, JJA) in Civil Appeal No. 156 of 2013 consolidated with Civil Appeal No. 160 of 2013. The application is brought under the provisions of Article 156 (2) of the Constitution, Sections 14 of the Supreme Court Act 2011, and Rules 3 (2) (4) & (5), 15 (2) and 65 of the Supreme Court Rules, 2020.
B. The Application
2.
The Motion is based on the applicant’s Supporting and Supplementary Affidavits sworn by Norah Beatrice Odingo on 17th September 2020, and 7th October 2020, respectively. The applicant avers that while the Court of Appeal Judgment was delivered on 7th June 2019, it was not until September 2019, when it managed to appoint a different advocate to pursue the intended appeal. According to the applicant, the delay in appointing the advocate was caused by procurement requirements, and a dispute between it and its original advocate, concerning the fees payable to the latter. The applicant further depones that it has not been able to obtain typed proceedings from the Court of Appeal to-date. Finally, the applicant states that the Covid-19 pandemic has disrupted the timely preparation of the appeal.
3.
In response, the 2nd to 30th respondents filed a Replying Affidavit sworn by Elizabeth Wambui Githinji on 30th September 2020, in which the deponent states that failure to file the Record of Appeal within the stipulated time, rendered the Notices of Appeal filed by the applicant as having been withdrawn, in accordance with Rule 37 of the Supreme Court Rules, 2012 (revoked). It is also urged that the fourteen (14) months period of delay is not only inordinate, but the same has not been sufficiently explained. The respondents aver that to allow this application would seriously infringe upon their rights.","E. Issues For Determination
12.
The only issue that falls for this Court’s consideration is whether the applicant has laid a satisfactory basis to warrant an extension of time for it to file the intended Appeal.
F. Determination
13.
Having considered the application and the affidavits in support thereof as well as the written submission of the parties, we find that on the basis of the principles set out by this Court for extension of time in Nicholas Salat Case, Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others, SC Appl. 50 of 2014 and Hassan Nyanje Charo Case the applicant has not satisfactorily explained the inordinate delay in filing the Record of Appeal. The reasons given by the applicant for this delay do not provide a sufficient basis for this Court to exercise its discretion in the applicant’s favour. Consequently, the application before us is one for dismissal.
G. Orders
i)
The Notice of Motion Application dated 17th September 2020, and lodged on 21st September 2020, is hereby dismissed;
ii)
The costs of this application shall be borne by the applicant.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/69/eng@2021-03-17
Application 28 of 2020,Mwangangi & 10 others v Commissioner of Lands & 3 others (Application 28 of 2020) [2021] KESC 67 (KLR) (17 March 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",17 March 2021,2021.0,Nairobi,Civil,Mwangangi & 10 others v Commissioner of Lands & 3 others,[2021] KESC 67 (KLR)               ,,"A. Introduction
1.
Before the Court is a Motion dated 22nd July 2020 and lodged on 16th October 2020. It is brought pursuant to Articles 163 (4) (b) and 163 (5) of the Constitution, Sections 15 (1) and 16 (1) of the Supreme Court Act, 2011, Rule 24 of the Supreme Court Rules, 2012 (now repealed) and all other enabling provisions of Law.
B. The Application
2.
The application seeks to review the Ruling of the Court of Appeal (Ouko, Warsame & Sichale, JJ.A) in Civil Application No. 9 of 2018, delivered on 10th July 2020, denying certification and leave to appeal to this Court against the Court of Appeal Judgment (Visram, Karanja & Koome JJ.A) in Civil Appeal No. 30 of 2013 delivered on 9th February, 2018. It also seeks to stay execution of the impugned Judgment pending the hearing and determination of the application and the intended appeal.
3.
In the impugned decision, the Appellate Court affirmed the trial court’s (Okwengu, J) decision by which the latter had dismissed the applicants’ suit and found that they had failed to prove any registered or unregistered interest in Land Reference Nos. 209/11543, 11544, 11545, 1546, 18276 and 18290 (the suit property) recognised in law. The trial court also allowed the 3rd and 4th respondents’ counterclaim on grounds that the applicants had failed to prove fraud in the acquisition of the titles and that the two respondents had proved they were duly registered as owners of LR No. 209/11543 and LR No. 209/11546 (part of the suit property), hence the applicants’ continued occupation amounted to trespass.
4.
The application is based on the applicants’ Supporting Affidavit sworn by Sammy Mwangangi on 22nd July 2020. The applicants submit that they have lived on the suit property since 1923 and have substantially developed the land by building churches, mosques and schools. It is the applicants’ case that this Court needs to determine whether, long possession of the suit property guarantees citizens in occupation, the right of priority in allotment. They also submit that the question as to what privileges accrue to citizens in long possession of unalienated Government land needs to be authoritatively determined.
5.
The 3rd and 4th respondents oppose the application based on the Replying Affidavit sworn by Paul Kihuti Kondiah on 22nd October 2020. They submit that the suit property was legally allotted to them and that the applicants did not prove anything to the contrary before the two Superior Courts. The respondents further argue that the main issue before the High Court and Court of Appeal, was whether the title to the suit property was legally or fraudulently acquired. As such, the respondents contend, the claim before the courts has always been a private matter whose determination does not transcend the interests of the parties.","E. Issues For Determination
13.
As the parties have not argued or submitted on the issue of Stay of Execution, only a single issue falls for this Court’s consideration, i.e. whether the application herein, involves matters of general public importance as envisaged under Article 163(4)(b) of the Constitution.
F. Determination
14.
The applicants set out two issues to be of general public importance, warranting determination by this Court, these are:
(i)
Whether long possession of unalienated government land guarantees citizens in long occupation the right of priority in allotment; and
(ii)
Whether the jurisprudence on unalienated government land in relation to Section 41 (a) of the Limitations of Actions Act should be further developed.
15.
The 3rd, 4th and 10th respondents on the other hand, submit that the intended issues are not matters of general public importance, but rather a dispute between parties claiming ownership of the suit property. They also argue that the proposed issues do not raise a substantial point of law requiring the further input of this Court.
16.
The question to consider then is, whether the application before us can be sustained on the basis of Article 163 (4) (b) of the Constitution. Are the proposed issues of such a nature and importance as to warrant the exercise of this Court’s Appellate jurisdiction under Article 163 (4) (b) of the Constitution?
17.
In Hermanus Case, this Court declared that for a case to be certified as one involving a matter of public importance,
“
(i)
the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
(ii)
where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;
(iii)
such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination;
(iv)
where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;
(v)
mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution;
(vi)
the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought.”
18.
It is indisputably clear from the record that the issues raised in the suit before the High Court were:
1.
whether the parties had locus standi to institute the suit and the counter claim;
2.
whether the applicants had complied with the provisions of Section 13A of the Government Lands Act;
3.
whether the 3rd and 4th respondents’ titles were obtained by fraud;
4.
whether the applicants or their forefathers lived on the suit property prior to the purchase of the property by the 2nd to 4th respondents; and
5.
whether the applicants’ entry to the land was lawful and whether the parties were entitled to the prayers in the plaint and counterclaim.
19.
The High Court made several findings of fact and law, the main one of which was that respondents had lawfully acquired the suit property. Their title, held the Court, could not be questioned on grounds of fraud as alleged by the applicants.
20.
Aggrieved by this decision, the applicants lodged an appeal in the Court of Appeal, where two issues were preferred, to wit, whether the occupation of the suit property by the applicants amounted to adverse possession and whether the suit property was lawfully allotted to the 2nd to 4th respondents. After hearing the parties, the Court of Appeal affirmed all the main findings by the High Court. The Appellate Court also held that the doctrine of adverse possession is well settled and that the same can only be raised against a registered proprietor and not against public land.
21.
Flowing from the above, we see no reason to allow a second appeal to this Court. The issues as determined by the Appellate Court in our view, do not transcend the circumstances of this particular case. The issues arise from a private claim between the parties. By the same token, we do not see any significant question of law that requires the further input of this Court or any state of uncertainty in the law arising from contradictory precedents. The finding of this Court on jurisdiction consequently disposes of the issue of stay of execution, which in any case was not canvassed by the parties.
G. Orders
22.
The foregoing conclusion triggers the following Orders.
(i)
The Originating Motion Application dated 22nd July 2020, is hereby dismissed;
(ii)
The decision of the Court of Appeal delivered on 10th July 2020, declining leave to appeal to this Court is hereby affirmed;
(iii)
The Costs of this Application shall be borne by the Applicants.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/67/eng@2021-03-17
Application 23 of 2020,Tawai Limited v Eldoret Express Limited & another  [2021] eKLR,Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",17 March 2021,2021.0,Nairobi,Civil,Tawai Limited v Eldoret Express Limited & another ,[2021] KESC 68 (KLR)               ,,"A. Introduction
1.
Before the Court is a Motion dated 19th August 2020 and lodged on 21st August 2020. It is brought under Articles 159, 163 (4) (b) and 163 (5) of the Constitution, Sections 15, 16, 23 and 24 of the Supreme Court Act, 2011, Rule 33 of the Supreme Court Rules, 2020 and all other enabling provisions of Law. It seeks to review the Ruling of the Court of Appeal (Ouko, Karanja & Mohamed, JJ.A) in Civil Application No. 167 of 2019 sitting at Nairobi, delivered on 29th September 2017, denying certification and leave to appeal to this Court against the decision of the Court of Appeal (Makhandia, Kiage & Odek, JJ.A) in Civil Appeal No. 118 of 2017, delivered at Nairobi on the 28th November 2019. It also seeks stay of execution of the Court of Appeal Judgment, pending the hearing and determination of this application and intended appeal. In the impugned decision, the Appellate Court overturned the trial Court’s decision (Ombwayo J) in which it had declared the transfer and registration of L.R No. 5707/6 in favour of the respondent illegal.
B. The Application
2.
The Motion is based on the applicant’s Supporting Affidavit sworn on 9th August 2020. It urges that; Karanja, J. irregularly sat in the bench that determined the application for certification while the Judge had previously sat in a bench that had heard and determined Kitale High Court No. 15 of 2006 (Tawai Express Limited v. Eldoret Express), a suit between the same parties, involving substantially similar issues and whose decision was substantially relied on in determining the suit, the subject of the intended appeal.
3.
The applicant further avers that the intended appeal raises ten issues of general public importance transcending the circumstances of its case and which were raised and determined by the courts below, to wit:
(i)
Whether an unverified and unregistered deed plan under the Survey Act can confer legal title;
(ii)
whether such omissions can be normalized by a court of law;
(iii)
what entity has the obligation of verifying whether a title is properly created;
(iv)
what is the role of the Director of Survey in the survey process and whether a director’s authentication of a deed plan or other survey instrument is proof that title was procedurally acquired;
(v)
whether it is a legal requirement for a deed plan to be authenticated;
(vi)
whether under the Registration of Titles Act (repealed) a charged property could be transferred without first discharging it;
(vii)
whether a duly registered charge would limit dealings in land;
(viii)
whether a road reserve can be transferred to a private entity;
(ix)
whether time begins to run where fraud is alleged contrary to the provisions of Article 40 (6) of the Constitution; and
(x)
whether a title acquired in contravention of the law is a good title.
4.
It is the applicant’s further averment that the determination of these issues will greatly contribute to the development of jurisprudence regarding matters such as the role of the Director of Surveys in the registration of titles in Kenya; the legal position of Deed Plans in the registration process; the effect of a registered charge; and the issue of limitation of time, where fraud is alleged.
5.
The Motion is opposed via the respondent’s Replying Affidavit sworn by Joseph Ng’ang’a Thungu on 2nd September 2020. It is urged that the issues raised in the intended appeal do not raise any point of law transcending the facts of the case between the parties and that they are of no public interest. It is urged that the issue of bench constitution at the Court of Appeal has no bearing on this Court’s exercise of jurisdiction under Article 163 (4) & (5) of the Constitution.","E. Issues for Determination
13.
Two issues fall for the Court’s consideration, i.e, whether the issues raised by the applicant are of general public importance as envisaged by Article 163(4)(b) of the Constitution; and whether this Court should grant an Order for Stay of Execution.
F. Determination on Jurisdiction
14.
The applicant has enumerated a range of matters which it considers to be of general public importance, warranting determination by this Court. It submits, that the Court of Appeal’s finding admitting an unverified and unauthenticated deed plan possess a challenge that needs clarification by this Court. Further, the finding by the Court of Appeal that a charged property could transfer to a third party, without first discharging such charge, deprives lenders in whose favour a charge has been registered, their right to property, contrary to Article 40 of the Constitution.
15.
on the other hand, it is the respondent’s submission that this Court lacks jurisdiction to entertain the appeal under Article 163 (4) (b) of the Constitution, since the appeal does not raise matters of general public interest and importance as required by Article 163(4)(b) of the Constitution. That the matters raised are: a dispute between the parties; a mere apprehension of miscarriage of justice; targeted at impugning the Judgment of the Court of Appeal; of no special jurisprudential moment requiring the intervention of the Court; and are matters that were not pleaded before the lower superior courts.
16.
The extent of this Court’s appellate jurisdiction is provided for in Article 163(4) of the Constitution. Article 163 (4) provides that:
“
appeals shall lie from the Court of Appeal to the Supreme Court:
(a)
as of right in any case involving the interpretation or application of this Constitution; and
(b)
in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to sub-Article 5.
[Emphasis added]
Article 165 (5) provides that:
“
a certification by the Court of Appeal under clause 4 (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.
17.
The question to consider then is, whether the application before us can be sustained on the basis of Article 163 (4) (b) of the Constitution. In the Hermanus Case, this Court declared that for a case to be certified as one involving a matter of general public importance:
“
(i)
the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
(ii)
where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;
(iii)
such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination;
(iv)
where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;
(v)
mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution;
(vi)
the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought.”
18.
It is clear from the Court record that the gist of the suit before the Trial Court and the Court of Appeal was the validity of the respondent’s title and occupation of L.R No. 5707/6. The Trial Court found that the suit land was illegally and fraudulently created through misrepresentation. It declared the transfer and registration of L.R No. 5707/6 in favour of the respondent illegal; cancelled the title; ordered the respondent’s eviction; permanently restrained it from trespassing the suit land; and ordered the respondent to pay Kshs 11,970,000 as mesne profits.
19.
Aggrieved by this decision, the respondent lodged an appeal in the Court of Appeal. After hearing the parties, the Court of Appeal faulted the Trial Court’s finding regarding the legality of the contested title. In particular, the Appellate Court took issue with the Trial Court’s analysis of the evidence on record. In this regard, the Court observed that the Trial Court’s finding of illegality of title was not backed by the evidence on record. on the contrary, held the Appellate Court, all the documents before the lower court actually went to prove the legality of the contested title. The Court further concluded that there was nothing on record to suggest that the title to the suit property had been created fraudulently or through misrepresentation.
20.
It is not in question that the dispute was resolved based on the analysis of the evidence on record. We agree with the respondent’s submission to the effect that the applicant has not raised any issues whose determination would transcend this particular case. Consequently, we see no reason to allow a second appeal to this Court. By the same token, we do not see any significant question of law that requires the further input of this Court. The finding of this Court on jurisdiction consequently disposes of the issue of Stay of Execution.
G. Orders
(i)
The Originating Motion dated 19th November 2019, is hereby dismissed;
(ii)
The decision of the Court of Appeal delivered on 7th August 2020, declining leave to appeal to this Court is hereby affirmed;
(iii)
The Costs of this application shall be borne by the applicant.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/68/eng@2021-03-17
Reference 3 of 2020,"In re Application by the County Assemblies of Kericho and Nandi Counties for an Advisory Opinion Under Article 163(6) of the Constitution of Kenya & In re Application by the Governor, Makueni County for an Advisory Opinion Under Article 163(6) of the Constitution the Governor, Makueni County (Reference 3 & 4 of 2020 (Consolidated)) [2021] KESC 61 (KLR) (16 March 2021) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",16 March 2021,2021.0,Nairobi,Civil,"In re Application by the County Assemblies of Kericho and Nandi Counties for an Advisory Opinion Under Article 163(6) of the Constitution of Kenya & In re Application by the Governor, Makueni County for an Advisory Opinion Under Article 163(6) of the Constitution the Governor, Makueni County",[2021] KESC 61 (KLR)               ,,"A. Introduction
1.
Before this Court are two References seeking an Advisory Opinion in response to a number of questions/issues posed by the applicants. The applications are brought pursuant to the provisions of Article 163 (6) of the Constitution. The said Article provides that:
“
The Supreme Court may give an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government.”
2.
Reference No. 3 of 2020 is dated 20th November, 2020 and filed on 24th November 2020, while Reference No. 4 of 2020 is dated 30th November 2020, and filed on 2nd December, 2020. The Law Society of Kenya filed an application dated 8th December 2020, on even date, seeking admission as amicus curiae.
B. Background
3.
The two References were first mentioned before the Court on 9th December 2020, during which; the Attorney General, the Senate, the National Assembly, and the Independent Electoral and Boundaries Commission, were admitted as necessary participants in the References. The applicants were directed to seek the Attorney General’s advice within seven (7) days; the Attorney General was directed to issue the advice within seven (7) days from the date of receiving the applicants’ request; any party wishing to be enjoined to the References as amicus was directed to make a formal application, accompanied with the amicus brief, within fourteen (14) days; and Reference No. 3 of 2020 and Reference No. 4 of 2020 were consolidated, with Reference No. 3 of 2020 as the primary file.
4.
Subsequently, the applicants sought the Attorney General’s advice via a letter dated 11th December, 2020. The Attorney General issued his advice dated 21st December, 2020 and filed in Court on 22nd January, 2021. Two motions seeking admission as amici curiae were also filed. On 25th January 2021, this Court delivered a Ruling admitting the Law Society of Kenya as amicus curiae. The Court subsequently mentioned this matter on 25th January 2021, when it dismissed the other two applications seeking admission as amici curiae, for having been filed out of time. The applicants were directed to respond to the Attorney General’s advice within seven (7) days thereof. The 3rd applicant (the Governor Makueni County) responded to the Attorney General’s advice on 1st February 2021. The 1st and 2nd applicants (County Assemblies of Kericho and Nandi) filed their submissions on the Reference and in response to the Attorney General’s advice dated 2nd February, 2021 on 3rd February, 2021.
5.
The matter was further mentioned on 9th February, 2021 to confirm compliance with the Court’s Directions. At the Mention, the Court admitted the 1st and 2nd applicants’ response to the Attorney General’s advice as having been filed on time; directed the Independent Electoral and Boundaries Commission and any other party wishing to respond to the Reference, to do so, by the 12th February 2021; and directed any party wishing to file a rejoinder, to do so, by the 16th February, 2021. The matter was scheduled for further mention on 19th February, 2021.
6.
On 19th February 2021, the Court admitted the Independent Electoral and Boundaries Commission’s submissions filed on 16th February 2021, as having been filed on time and directed the applicants to file their submissions in response, by 23rd February, 2021. The matter was further scheduled for mention, on the 16th March 2021.","D. Determination on Jurisdiction
9.
During the Mention on 19th February 2021, the Court issued further directions, in which it informed the parties that it would deliver a Ruling on whether to render an Advisory Opinion as sought by the parties or not. The Court also indicated that were it to be inclined towards rendering an Opinion, it would have to delineate specific issues to be addressed by the parties. This Ruling is therefore, an affirmation of the foregoing directive.
10.
At the outset, we have to determine whether, the jurisdiction of this Court to render an advisory Opinion has been properly invoked, and if so, whether the Court should exercise its discretion to render the Opinion as prayed. Towards this end, it is instructive to recall our decision in Re Matter of Gender Representation to the National Assembly & Senate;
Advisory Opinion No. 2 of 2012, [2012] eKLR; wherein the following principles were laid down to guide the Court on the exercise of its jurisdiction under Article 163 (6) of the Constitution. At paragraph 83, the Court stated:
(i)
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government”, will be determined by the Court on a case-by-case basis.
(ii)
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae.
(iii)
The Court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may if satisfied that it is in the public interest to do so, proceed and render an Advisory Opinion.
(iv)
Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial Court process.
11.
While taking cognizance of the fact that, no Preliminary Objection has been raised challenging this Court’s jurisdiction to render an Opinion, we nonetheless must satisfy ourselves that the two References meet the threshold set out in the four governing principles. In this regard, we have no doubt that Reference no. 3 by the County Assemblies of Kericho and Nandi, satisfies the conditions set out in Principles (i) and (ii) above. There can be no denying that the two applicants are “state organs” within the meaning of Article 163 (6) of the Constitution. Nor can there be any doubt that the matters in respect of which they seek an Advisory Opinion are ones that concern County Government.
12.
Regarding Reference No. 4, we note that the same has been lodged by the Governor of Makueni County. We are similarly in no doubt, that the matters in respect of which the applicant seeks an opinion, are those that squarely concern County Government. Thus far, we see no reason to belabour the point.
13.
We now turn to Principles Nos. (iii) and (iv) regarding the exercise of jurisdiction as enunciated by the Court in Re Matter of Gender Representation to the National Assembly & Senate [Supra]. The Court signaled that it would be hesitant to render an Advisory Opinion if the matter(s) in respect of which the Reference is made, is pending before a lower court. There are two exceptions to this principle, in that, this Court can render an opinion if the matter before the lower court was instituted after the Reference, or if in the opinion of the Court, the matter is urgent and that its resolution would be in the public interest.
14.
It has come to the attention of this Court, through notification by Mr, Bitta on behalf of the Attorney General, that the matters raised in the two References before us, are similar to those in seven consolidated Petitions pending before the High Court. However, Mr. Ongoya, counsel for the applicants in Reference No. 3, is categorical that there is no substantive affinity between the issues in the References and those pending before the High Court. In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [Supra]; at paragraph 17, the Court re-emphasized that:
“
Only a truly deserving case will justify the Court’s Advisory Opinion, as questions amenable to ordinary litigation must be prosecuted in the normal manner; and the Supreme Court ought not to entertain matters which properly belong to first-instance-Court litigation. Only by due deference to the assigned jurisdiction of the different Courts, will the Supreme Court rightly hold to its mandate prescribed in Section 3(c) of the Supreme Court Act, 2011 (Act No. 7 of 2011), of developing “rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth.”
15.
Faced with the two conflicting opinions by counsel, as to whether the issues raised in the References, bear any similarity to those pending at the High Court, the only cause of action open to this Court, was to peruse the relevant records at the High Court Suo Motu. Pursuant to such perusal, we find that in David Ndii & Others v. Attorney General & Others, Petition No. E282 of 2020; the High Court delivered a ruling on 8th February 2021, in which the learned judges identified and set down for determination the following issues inter alia:
(a)
Whether in the process of formulating the Constitutional Amendment Bill, the provisions of Articles 27 and 47 of the Constitution as read with Section 4 of the Fair Administrative Action Act were adhered to;
(b)
Whether the entire BBI process culminating with the launch of the Constitutional Amendment Bill was undertaken constitutionally having regard to Articles 1, 2, 3, 10, 255 and 257 of the Constitution;
(c)
Whether the Constitutional Amendment Bill is a Popular initiative as envisaged under Article 257 of the Constitution and if not, whether the process chosen to enact the constitutional amendment is fundamentally flawed and constitutionally infirm;
(d)
Whether at the time of launch of the Constitutional Amendment Bill and the collection of endorsement signatures, there was a legislation governing the collection, presentation, and verification signatures or a legal framework or administrative structure to govern the conduct of referenda in the Country, and whether the absence of such legal and administrative framework is fatal for the Constitutional Amendment Bill under consideration;
(e)
Whether the 3rd Respondent, the Independent Electoral and Boundaries Commission (the Commission), and the County Assemblies can exercise their powers under Article 257 of the Constitution to receive, verify and approve the Constitutional Amendment Bill in the prevailing circumstances;
(f)
Whether, by dint of Article 257 (5) and (7) of the Constitution, the County Assemblies and Parliament have the power to alter and or improve the contents of the Constitutional Amendment Bill so as to incorporate divergent views raised through public participation;
(g)
Whether Article 257(10) requires all the specific proposed amendments to the Constitution to be submitted as separate and distinct referendum questions to the people in the referendum ballot paper;
(h)
Whether the constitutional edict does empower the National Executive or any State organ, as opposed to Parliament, to pursue or initiate any amendment to the Constitution without petitioning Parliament;
(i)
Whether in a popular initiative to amend the Constitution, the National Executive may use public resources, including deploying public and State officers to either collect signatures or popularize any intended amendments to the Constitution;
(j)
Whether the intended constitutional amendment processes are in conformity with the National Values in Article 10 of the Constitution;
(k)
Whether the Commission is legally constituted to carry out the referendum;
(i)
Whether there has been public participation in the constitutional amendment process.
16.
We have critically considered, in analytical terms, the import of the issues raised in the two References and those pending for determination at the High Court as quoted above. The High Court has been moved by the parties under Article 165 (d) of the Constitution. They seek a number of far-reaching declarations which in our view, can only be made after a rigorous and extensive interpretation, of the relevant provisions of the Constitution whose meaning has been called into question. We also note that the High Court petitions were filed before the two References seeking this Court’s advisory opinion.
17.
Coming to the critical question as to whether the issues pending before the two courts, bear any substantive similarity as to put us on a trajectory of restraint, we have come to the conclusion that, indeed this is the case. We do not see how the High Court can determine the issues before it without venturing into similar questions now pending before us in the two References. Given the timing of the proceedings before the two courts, there is a distinct possibility that the advisory opinion and declarations from the Supreme Court and High Court respectively, could issue at the same time. Such a scenario is likely to cause confusion and anxiety in the public mind, not to mention the potential threat, to the principles of certainty and finality in judicial pronouncements.
18.
Should this Court down its tools to await the High Court’s determination of the petitions pending before it, or should we go ahead and render an opinion well aware that a similar subject matter is pending in a lower Court? In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [Supra] at paragraph 18, the Court stated:
“
The Court recognizes, however, that its Advisory Opinion is an important avenue for settling matters of great public importance which may not be suitable for conventional mechanisms of justiciability. Such novel situations have clear evidence under the new Constitution, which has come with far-reaching innovations, such as those reflected in the institutions of county government… This is the typical situation in which the Supreme Court’s Advisory- Opinion jurisdiction will be most propitious; and where such is the case, an obligation rests on the Court to render an opinion in accordance with the Constitution.”
19.
We have already noted that the matters before the two courts, are of great public importance, requiring urgent resolution. Yet we do not think that the issues before the High Court, have been lodged in an adversarial posture, such as would embolden this Court to proceed and render an opinion as signaled in the quoted Paragraph above. On the contrary, the High Court is being called upon, with attendant tones of urgency, to exercise one of the most important aspects of its original jurisdiction, i.e, to interpret the Constitution. In the circumstances, we see no justification to usurp that Court’s role as clearly constructed in our constitutional set-up.
E. Disposition
20.
While it is our finding that this Court has jurisdiction to render an Advisory Opinion as prayed in the two References, we nonetheless decline to exercise our discretion in favour of rendering such opinion as sought by the applicants, on grounds of the reasons given in paragraphs 17, 18, and 19 of this Ruling.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/61/eng@2021-03-16
Petition 1 of 2020,Attorney General v Zinj Limited (Petition 1 of 2020) [2021] KESC 63 (KLR) (Civ) (5 March 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",5 March 2021,2021.0,Nairobi,Civil,Attorney General v Zinj Limited,[2021] KESC 63 (KLR)               ,,"1.
The Notice of Motion dated 30th October 2020 is premised on Rule 18 of the Supreme Court Rules, 2012 (now repealed) and seeks the following orders:
1.
The Honourable Court be pleased to direct that additional evidence be taken by the trial Court to establish the level and extent of the continuing encroachment of the suit property L.R. No.25528.
2.
The Director of Survey be directed to undertake a site visit and inspection, locus in quo, of the suit property, L.R. No.25528 and file with the trial Court a report showing the current level of encroachment in the suit property.
3.
Upon and consequential to Orders 01 and 03 above being granted, the notes and observations made thereon by the trial Court do form part of this Court’s proceedings.
4.
This Honourable Court do issue such further Orders as may serve the ends of justice.
5.
The costs be provided for.
2.
The Applicant, Zinj Limited, claims that the additional evidence being sought is intended to show the current level of encroachment into the disputed property, L.R. No.25528, and to remove any vagueness or doubt over the substantive issue of encroachment and the compensation payable to it.
B. Background
3.
In ELC Petition No.2 of 2010 (Malindi) the Applicant had claimed that its parcel of land, L.R. No.25528, had been unlawfully interfered with by the State which action amounted to unlawful compulsory acquisition of the said parcel of land. In agreeing with the Applicant, the Environment and Land Court (Olola, J) found that the State had indeed unlawfully acquired 51.129 hectares of land belonging to the Applicant and assessed damages arising therefrom at Kshs.413,844,248.70 being the value of the land and general damages of Kshs.51,129,000. The Applicant was dissatisfied and filed an appeal at the Court of Appeal being Civil Appeal No.56 of 2018.
4.
In its Judgment, rendered on 20th March 2019, the Court of Appeal (Visram, Karanja and Musinga, JJA) partly allowed the appeal with the result that compensation was pegged at the whole of L.R. No.25528 and not a portion of it and the value stated to be Kshs.2,996,232 plus 15% thereof (Kshs.449,434,800) and general damages assessed at Kshs.42,570,000. The Attorney General filed an appeal to this Court which appeal is still pending hearing and determination.","E. Analysis and Determination
10.
We have perused the Judgments of both the Environment and Land Court as well as the Court of Appeal. In determining that the State encroached upon the Applicant’s property, the Courts largely relied on a report by Maritim Wedon, Malindi/Magharini District Land Surveyor, dated 12th January 2012. In that report, it was established that there was “an overlap between Ngomeni Settlement Scheme, L. R. No.24853 and L. R. No.10754”. The latter parcel of land was amalgamated with another to create L. R. 25528 registered in the name of the Applicant. The same report also indicated in detail, the acreages of the overlap/encroachment including “an additional area/marked E on the [sketch map] of approximately 22.47 Ha (55.5 acres)”. Olola J, in his Judgment, specifically determined that 28.659 hectares of land belonging to the Petitioner had been encroached upon by the Department of Defence (6.318 Ha), Ngomeni Settlement Scheme (15.869 Ha), public road (6.189 Ha) and a Muslim cemetery (0.2827 Ha). An additional 22.47 Ha was also found to have been encroached upon by squatters. In total, he found that 51.129 Ha of land had been unlawfully disposed from the Applicant.
11.
The Court of Appeal, on its part, disagreed with the learned Judge of the trial Court and found that the Applicant had been dispossessed of the entire parcel of land, L. R. No.25528, and was entitled to compensation in the terms we have expressed above.
12.
The divergence of the findings by both Courts is now the subject of the appeal before us and the question that we must ask is whether the alleged additional evidence would run afoul of the principles we established in Hon. Mohamed Abdi Mohamad. Those principles, flowing from an interpretation of Rule 18 of the Supreme Court Rules 2012 (now Rule 26 of the Supreme Court Rules 2020 are as follows:
(a)
the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
(b)
it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
(c)
it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
(d)
where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
(e)
the evidence must be credible in the sense that it is capable of belief;
(f)
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
(g)
whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
(h)
where the additional evidence discloses a strong prima facie case of willful deception of the Court;
(i)
The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful;
(j)
a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case;
(k)
the Court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.
13.
We have, in applying the above principles noted firstly, that in fact the additional evidence is not before this Court. For a Court to interrogate additional evidence, it would be expected, generally, that the evidence is available to the Court and the opposing party. How can this, or any Court, determine the relevance, credibility, volume and disclosure of a prima facie case if the evidence is speculative or unknown? How can any Court determine that the evidence is not meant to fill up gaps in evidence, if the additional evidence itself is not available? How can we determine the prejudice to be caused to the Respondent if all we have is the Applicant’s claim that the evidence will assist the Court remove any doubts or vagueness in the case?
14.
Our clear finding is that, in the present case, without the additional evidence being placed before us, we cannot properly invoke the above principles in favour of the Applicant.
15.
Secondly, we have endeavoured to show that, contrary to the Applicant’s assertion, Olola J and later, the Court of Appeal, having found and determined what acreage of land had been encroached upon, went ahead to award the Applicant compensation as a result thereof. The Applicant to our knowledge, has not appealed against the decision of the Court of Appeal and is deemed to be satisfied with it. The Respondent is not satisfied with that decision and in the Memorandum of Appeal before this Court has challenged the decision to award compensation on alleged compulsory acquisition of the whole parcel of land as opposed to part of it as found by Olola J. It would be a travesty of justice for this Court to allow the Applicant to go on a fishing expedition and create evidence of unknown relevance or value whose import in determining the above question is a mystery to us.
16.
Thirdly, and lastly, this Court has a very limited mandate and to allow parties to reopen their cases, seek the taking of evidence afresh by trial Courts and worse, direct new evidence to be created by ordering site visits and inspections as is prayed by the Applicant, would negate the purpose for which this Court was created. The present Motion, with respect, is a clear abuse of the processes of this Court and must be dismissed.
F. Disposition
17.
For reasons given above;
i)
The Motion dated 30th October 2020 is dismissed.
ii)
Costs thereof shall be paid by the Applicant to the Respondent.
18.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/63/eng@2021-03-05
Application 7 of 2020,"Gichanga v Secretary, Teachers Service Commission (Application 7 of 2020) [2021] KESC 64 (KLR) (5 March 2021) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",5 March 2021,2021.0,Nairobi,Civil,"Gichanga v Secretary, Teachers Service Commission",[2021] KESC 64 (KLR)               ,,"1.
Upon perusing the Notice of Motion by the Applicant dated 24th March 2020 and filed on 30th April 2020, which application is brought pursuant to the provisions of Rule 23 of the Supreme Court Rules, 2012 (repealed) and in which the Applicant seeks a review of the Ruling and orders of this Court dated 11th December 2019; and
2.
Upon perusing the affidavit in support of the application sworn on 24th March 2020 AND wherein the deponent contends that this Court in rendering its decision dismissing the Applicant’s application for extension of time to file a notice of appeal and an appeal out of time failed to consider the delay in obtaining the proceedings from the Court of Appeal and that the matter is of general public importance; and
3.
Upon further considering the written submissions by the Applicant dated 9th July 2020 and filed on 13th July 2020, and amended submissions dated 24th June 2020 and filed on 25th June 2020; and
4.
Further, Upon considering the replying affidavit of the Respondent sworn on 30th June 2020 and filed on 2nd July 2020 in which, in opposing the application for review, contends that the Applicant has not established grounds to warrant the review of the Ruling of this Court, and furthermore, that the Applicant has not shown any exceptional circumstances to enable this Court review its earlier Ruling, and, that the application is vexatious, frivolous and a waste of this Court’s judicial resources; and
5.
Upon considering the Respondent’s submissions dated 30th June 2020 and filed on 2nd July 2020 in opposition to the Petitioner’s application; and","6.
Having considered the application, the supporting affidavit and the submissions in support thereof, and the replying affidavit and the submissions in response and in opposition to the instant application, by a unanimous decision of this Bench, we find that;
a.
This Court has the jurisdiction to consider an application for review of its decisions as provided under Rules 3(25) and 28(5) of the Supreme Court Rules, 2020, and as previously provided in Rule 20(4) of the Supreme Court Rules, 2012 (repealed);
b.
The application dated 24th March 2020 and filed on 30th April 2020 in which the Applicant contends that the jurisdiction of this Court should be invoked to review its earlier decision dated 11th December 2019 dismissing the application for extension of time to file an appeal out of time to this Court does not satisfy the principles set out by this Court on the issue of review of its decisions as enunciated in Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others SC Petition (App.) No. 4 of 2012; [2013] eKLR and Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others SC Petition No. 6 of 2014; [2017] eKLR; and
c.
The Applicant did not provide sufficient and cogent reasons for this Court to consider and depart from its earlier decision dated 11th December 2019 (Ibrahim, Ojwang, Wanjala, Njoki & Lenaola SCJJ);
7.
In the circumstances, we now make orders as follows;
a.
The Notice of Motion application by the Applicant dated 24th March 2020 and filed on 30th April 2020 is hereby dismissed;
b.
There shall be no orders as to costs.
8.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/64/eng@2021-03-05
Motion 25 of 2020,Olotch v Pan African Insurance Company Limited (Motion 25 of 2020) [2021] KESC 65 (KLR) (5 March 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",5 March 2021,2021.0,Nairobi,Civil,Olotch v Pan African Insurance Company Limited,[2021] KESC 65 (KLR)               ,,"A. The Application
1.
By an originating Motion dated 16th September 2020 and premised on Section 16(1) and (2) of the Supreme Court Act, 2011 as well as Rule 33(2) and (3) of the Supreme Court Rules, 2020, the Applicant, William Olotch, has applied for a review of the decision of the Court of Appeal delivered on 22nd May 2020. In its Ruling, the appellate Court had declined to certify the dispute between the parties as one requiring further input by this Court, as a matter of general public importance, under Article 163(4) (b) of the Constitution
B. Background
2.
Before the High Court, in HCCC N0.509 of 2002, the Applicant had prayed for a declaration that his summary dismissal as the Managing Director of the Respondent, Pan Africa Insurance company Ltd was unlawful and that he was entitled to certain sums of money being salary in lieu of notice, accrued leave, salary arears, club membership, severance pay, dues for 8 years of service and translocation expenses. The Respondent, on its part, counterclaimed for delivery of M/V Reg. No. KAM 509M or payment of Kshs.3,575,000.00 in lieu thereof as well as damages for loss of use of the said motor vehicle.
3.
In a Judgment delivered on 9th March 2017, Sergon J dismissed the Applicant’s claim with costs and ordered him to pay Kshs.4,737,187.60 plus costs to the Respondent. The Applicant was dissatisfied and on appeal, the Court of Appeal, in a Judgment delivered on 10th May 2019 (Warsame, Musinga and Kiage JJA) dismissed his appeal with no order as to costs.
4.
By a Notice of Motion dated 17th July 2019, the Applicant prayed for certification of his intended appeal to this Court as one involving a matter of general importance. The appellate Court, in a Ruling delivered on 22nd May 2020 (Ouko, Koome and Murgor JJA) declined the plea of certification thus triggering the present Motion.","E. Analysis and Determination
9.
Article 163(4) (b) of the Constitution provides as follows:
“
Appeals shall lie from the Court of Appeal to the Supreme Court in any case in which the Supreme Court or the Court of Appeal, certifies that a matter of Public Importance is involved subject to Clause 5”
10.
In applying the above provision, this Court in Hermanus Phillipus Steyn and Town Council of Awendo among other decisions on the subject, laid down a number of principles that a party seeking review of non–certification by the Court of Appeal must properly invoke for this Court to grant such review. Of relevance to the present Motion are the following:
i)
The issue canvassed must transcend the specific circumstances of a particular case and have a significant bearing on the public interest.
ii)
Where the issue is one of law, its determination must have a significant bearing on the public interest.
iii)
Mere apprehension of injustice by the Courts below cannot be a proper basis for certification.
iv)
The specific elements of “general public importance” must be clearly and concisely identifiable.
v)
Determination of facts in contest between the parties cannot be a basis for certification.
11.
In the above context, we have set out above the eight questions that the Applicant considers to be so significant as to attract the application of the above principles in his favour. We have weighed all of them against the expectation of the law and with respect, they all fall far below the above threshold. We say so because whereas general questions of law such as applicability of natural justice to all contracts and retroactivity of contracts of employment may have been thrown in to spice the Motion, the questions relate wholly to the specific circumstances between the parties hereto. A contract between an employee and an employer is ordinarily looked at, within its four corners, should a dispute arise and applicable law is then invoked to determine the dispute which in the end should not transcend the special and private relationship between parties to it so as to attract the general public importance qualification or the public interest necessity.
12.
The Judgments of the Courts below were in that context also detailed on the real dispute between the parties: was the Applicant lawfully dismissed from his employment and if so, was he entitled to his monetary claims? And was the Respondent’s counterclaim regarding M/V Reg.No. KAM 509M a lawful one or not? Both Courts reached near similar conclusions on the twin questions and there was nothing in the dispute nor in the Judgments to warrant the attention of the general public.
13.
We must reiterate that mere dissatisfaction with the manner in which Courts below determined disputed facts is not by and of itself a good reason to raise a matter to the higher platform of “general public importance” neither does apprehension that miscarriage of justice may have been committed, do so. Article 163(4) (b) was never enacted to placate every litigant unhappy with the final decision of the appellate Court. This must be said of the present case.
14.
Without saying more, the Motion is one for dismissal. As for costs, we have no doubt that, in the present instance, they must follow the event and so the Respondent shall have costs thereof.
D. Disposition
15.
For reasons above, the final orders to be made are that;
a)
The Originating Motion dated 16th September 2020 is hereby dismissed.
b)
The Respondents shall have costs thereof.
16.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/65/eng@2021-03-05
Civil Application 30 of 2020,Wainaina & another (As administratrixes of the Estate of the Late Margaret Wanjiru  Kinyara - Deceased) v Kinyanjui & another (As administrators of the Estate of the Late Elizabeth Wanjiru Njenga - Deceased) & 3 others (Civil Application 30 of 2020) [2021] KESC 62 (KLR) (Civ) (5 March 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",5 March 2021,2021.0,Nairobi,Civil,Wainaina & another (As administratrixes of the Estate of the Late Margaret Wanjiru  Kinyara - Deceased) v Kinyanjui & another (As administrators of the Estate of the Late Elizabeth Wanjiru Njenga - Deceased) & 3 others ,[2021] KESC 62 (KLR)               ,,"Upon perusing the Notice of Motion by the Applicants dated 29th October 2020 and filed on 30th October 2020, which application is brought pursuant to the provisions of Rules 3(5) and 28(5) of the Supreme Court Rules, 2020 and in which the Applicants seek stay and review of the Ruling and orders of this Court dated 4th September 2020; and","Having considered the application, the supporting affidavit and the submissions in support thereof, and the replying affidavit and the submissions in response and opposition to the instant application, by a unanimous decision of this Bench, we find that;(a)
This Court has the jurisdiction to consider an application for review of its decisions as provided under Rules 3(25) and 28(5) of the Supreme Court Rules, 2020;
(b)
The application by the Applicants dated 29th October 2020 and filed on 30th October 2020 which contends that the jurisdiction of this Court should be invoked to review its decision dated 4th September 2020 allowing the 1st Respondent’s Preliminary Objection application dated 30th May 2019 does not satisfy the principles set out by this Court on the issue of review of its decisions as pronounced in Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others SC Petition (App.) No. 4 of 2012; [2013] eKLR and Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others SC Petition No. 6 of 2014; [2017] eKLR and;
(c)
The Applicants did not provide sufficient and cogent reasons for this Court to consider and depart from its decision dated 4th September 2020 (Maraga CJ, Mwilu DCJ, Ibrahim, Wanjala & Njoki SCJJ);
(d)
The Applicants did not establish what constitutional or statutory provisions they sought to rely Upon in their Petition of Appeal before this Court, and which defect could nonetheless not be effectively remedied through the submissions that they had filed on 17th July 2020, and which in any event did not conform with the principles set out by this Court in Daniel Kimani Njihia v. Francis Mwangi Kimani & another [2015] eKLR, Suleiman Mwamlole Warrakah & 2 others v. Mwamlole Tachappu Mbwana & 4 others [2018] eKLR, Rose Jebor Kipngok v. Kiplagat Kotut Application No. 34 of 2019; [2020] eKLR and Cordison International (K) Ltd v. Chairman National Land Commission & 43 others Petition No. 14 of 2019; [2020] eKLR on the requirement of parties to establish and invoke the relevant constitutional and statutory provisions that they seek to rely Upon when coming before this Court.
(e)
Neither the prayer for setting aside nor review have merit.
7.
In the circumstances, we now make Orders as follows;
(a)
The Notice of Motion application by the Applicants dated 29th October 2020 and filed on 30th October 2020 is hereby dismissed;
(b)
Each party shall bear its costs thereof.
8.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/62/eng@2021-03-05
Reference 3 of 2020,County Assembly of Kericho County & another v Attorney General & 4 others; Law Society of Kenya (Intended Amicus Curiae) (Reference 3 of 2020) [2021] KESC 66 (KLR) (25 January 2021) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",25 January 2021,2021.0,Nairobi,Civil,County Assembly of Kericho County & another v Attorney General & 4 others; Law Society of Kenya,[2021] KESC 66 (KLR)               ,,"This was an application filed by the Law Society of Kenya (LSK) seeking leave to be enjoined in the reference as amicus curiae. The applicant submitted that it had met the set criteria for admission as amicus curiae because it had the expertise, experience and knowledge relevant to determination of the Reference; was involved in the amendments of the former Constitution and was therefore familiar with Kenya’s constitutional amendment history; and was neutral and had no connection with either party to the Reference.","On the criteria for admission of a party as amicus curiae, such admission was a matter of discretion and a privilege granted to an intended amicus. Such an intended amicus needed to show that it was neutral and that it had no discernible direct or indirect interest in the matter.The court stated that admission of amici curiae was a useful tool in achieving the constitutional mandate to develop the law with the assistance of well informed inputs from parties appearing before court. Under Section 4 of the Law Society Act, the LSK was mandated to assist the Courts and the public in matters relating to the law generally and the administration of justice in particular and was therefore made up of, inter alia, experts in constitutional matters.
No prejudice would be caused to any party if LSK was admitted as amicus curiae and there was no partiality expressed in its draft amicus brief. The court was also satisfied that the brief would assist it in reaching a fair determination of the issues raised in the Reference.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/66/eng@2021-01-25
Petition 3 of 2018,Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR) (11 January 2021) (Judgment),Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",11 January 2021,2021.0,Nairobi,Civil,Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa,[2021] KESC 34 (KLR)               ,,"The appellant was a registered society comprised of residents of Mitumba Village. Mitumba Village and the Mitumba Village Primary School were situated near Wilson Airport. A notice published in the newspapers on September 15, 2011 by the Attorney General gave the residents of Mitumba Village seven days within which to vacate the premises. Despite the appellant obtaining conservatory orders from the High Court to restrain the demolition of Mitumba Village, the premises were demolished on November 19, 2011. The appellant sought various declaratory reliefs at the High Court including those that asserted their ownership of the premises and also stated that the forceful eviction and demolition without a relocation option was illegal, oppressive, and violative of the appellant's rights.The respondent explained that Mitumba Village was situated on property belonging to the Kenya Airports Authority (the 1st respondent) and that the 1st respondent was under a statutory duty to ensure air safety by removing any informal settlement which was on a flight path and that given the war in Somalia, the village posed a threat. The High Court held that the appellant did not own the suit premises. The High Court also held that the newspaper notice which was said to be a reminder notice was unreasonable, unconscionable and unconstitutional as there was no other notice preceding it and it required vacation of the suit premises within seven days. The High Court also noted that there was no legislation or guidelines developed in Kenya for the eviction of persons occupying land that they were not legally entitled to occupy.
The High Court made the determination that the right to property included the protection of goods and personal property and it extended to goods and building materials that had been destroyed during the demolition. The High Court also found that the eviction and demolition of the premises pursuant to a seven-day notice and the failure to provide alternative accommodation was a violation of the appellant's rights to housing and other socio-economic rights recognized under the Constitution of Kenya, 2010 (Constitution). Further, the High Court found that evictions could be necessary but the due process had to be followed. The due process included the issuance of reasonable notice and the conduct of consultations among those affected by the eviction. Additionally, the High Court determined that the demolition which left other nearby multi-storied buildings intact was discriminatory. The High Court noted that the demolitions included the demolition of a school and there was no evidence that measures were put in place to protect the needs of vulnerable groups, particularly children and that children's rights were violated.
In response to the High Court judgment, the 1st respondent filed an appeal at the Court of Appeal. The Court of Appeal made various findings including findings that were to the following effect -
Pamoja Trust was wrongfully given a role reserved for the court when it was asked to be involved in ascertaining eviction terms and the creation of eviction guidelines because Pamoja Trust had no constitutional mandate of resolving disputes;
the concept of partial judgment or interim judgment was unknown to Kenyan law; a court had to finally determine all the issues before it and it would then become functus officio;
allowing parties to file affidavits and reports after the judgment introduced secondary litigation of issues that were not raised in the original pleadings;
the security and safety of the flight paths were a limitation on the enjoyment of the rights and freedoms in the Bill of Rights as permitted under article 24 of the Constitution;
there was no legislation in Kenya meant to regulate forcible eviction and resettlement of persons occupying public or private land and before the enactment of such legislation courts had to interpret and apply the law as it was;
the 1st respondent had no mandate to provide policies and programs on the provision of shelter and access to housing as directed by the High Court;
the trial court erred in law in issuing orders and directions on un-pleaded issues;
the court should not act in vain or issue orders it could not implement and policy formulation was not within the mandate of the courts;
the enforcement and implementation of socio-economic rights could not confer propriety rights in the land of another and the realization of socio-economic rights did not override the provisions of the Limitation of Actions Act.
Aggrieved, the appellants filed the instant appeal at the Supreme Court. ","Article 23(1) and (3) of the Constitution were the launching pad of any analysis into the place and scope of interim orders in Kenya's human rights enforcement architecture. Article 23(3) provided that for a violation of the Bill of Rights the court could grant any appropriate relief including, a declaration of rights, an injunction, a conservatory order, a declaration of legal invalidity of any law that denied, violated, infringed or threatened a right or fundamental freedom in the Bill of Rights that was not justified under article 24 of the Constitution, an order for compensation and an order for judicial review. The list of appropriate reliefs that the court could grant was not exhaustive.The Court of Appeal failed to consider Supreme Court decisions concerning interim reliefs that a court could issue to address the violation of a fundamental right. The appellate court appeared to shut the door on the use of interim reliefs or structural interdicts in human rights and other constitutional litigation.
Article 23(3) of the Constitution empowered the High Court to fashion appropriate reliefs, even of an interim nature, in specific cases, so as to redress the violation of a fundamental right.
The doctrine of functus officio retained validity and vitality in both criminal and civil cases but in certain situations, the doctrine ought to give way. Subjecting article 23 of the Constitution, on the court's power to fashion appropriate reliefs for human rights violations, to the limitation of the Civil Procedure Act's provisions on the court becoming functus officio after judgment, would stifle the development of court-sanctioned enforcement of human rights as envisaged in the Bill of Rights.
Interim reliefs, structural interdicts, supervisory orders or any other orders that could be issued by the courts, had to be specific, appropriate, clear, effective, and directed at the parties to the suit or any other State agency vested with a constitutional or statutory mandate to enforce the order. Most importantly, the court in issuing such orders had to be realistic, and avoid the temptation of judicial overreach, especially in policy matters. When issuing interim orders the court could indicate that the orders were interim in nature and that the final judgment had to await the crystallization of certain actions.
The meaning to be attributed to the phrase ""shall form part of the law of Kenya” in articles 2(5) and 2(6) of the Constitution was that in determining a dispute, a domestic court of law had to take cognizance of rules of international law to the extent that the same were relevant and not in conflict with the Constitution, statutes or a final pronouncement.
Articles 2(5) and 2(6) of the Constitution were both inward-looking and outward-looking. They were outward-looking in the sense that they committed Kenya to conduct its international relations in accordance with its obligations under international law. On the other hand, they were inward-looking because they required Kenyan courts of law to apply international law in resolving disputes before them as long as the same were relevant, and not in conflict with the Constitution, local statutes, or a final judicial pronouncement. International law could be applied to fill a lacuna in domestic law in the context of a dispute before a domestic court because international law was part of the laws of Kenya.
Articles 2(5) and 2(6) of the Constitution had nothing or little significance to do with the monist-dualist categorization. Most importantly, the expression “shall form part of the law of Kenya” as used in the articles did not transform Kenya from a dualist to a monist state as understood in international discourse.
Article 2(5) of the Constitution referred to general rules of international law and did not refer only to peremptory norms of international law or jus cogens. The two main sources of international law were treaties and international customs. Jus cogens was a technical term given to those norms of general international law which were of peremptory force and as a consequence, no derogation was allowed. Jus cogens accounted for only a tiny corpus of the general rules of international law. The suggestion by the Court of Appeal that the use of the phrase ""general rules of international law"" in the Constitution was limited to the evolving concept of jus cogens was inconceivable.
The U.N Guidelines on Evictions; General Comment No. 7, at best constituted what was known as international jurisprudence or soft law. UN Resolutions, Declarations, Comments and Guidelines did not ordinarily amount to norms of international law. However, certain UN General Assembly Declarations and Resolutions could ripen into a norm or norms of international law depending on their nature and history leading to their adoption.
The U.N Guidelines, General Comment No. 7 did not qualify as general rules of international law, which had a binding effect on members of the international community. However, the Guidelines were intended to breathe life into the right to dignity and the right to housing under the International Covenant on Civil and Political Rights and the International Covenant on Civil Economic Social and Cultural Rights respectively. They, therefore, constituted soft law in the language of international jurisprudence. The trial court could refer to the Guidelines but they could not be elevated to the status of general rules of international law under article 2(5) of the Constitution.
The U.N. Guidelines in question were issued pursuant to article 21 of the International Covenant on Economic Social and Cultural Rights. Strictly speaking, therefore, they could only be considered under article 2(6) of the Constitution, which referred to international treaties and conventions ratified by Kenya. The Guidelines could not be regarded as being part of the treaty under which they were issued. They were tools or aids directed to State parties to help the latter in implementing the treaty or better fulfillment of their obligations thereunder.
The Guidelines were not binding upon the state parties, nor were they part of the law of Kenya in the language and meaning of article 2(6) of the Constitution, unless they had ripened into a norm of customary international law, as evidenced by widespread usage.
Article 43(1)(b) of the Constitution provided that every person had the right to accessible and adequate housing and to reasonable standards of sanitation. Further, under article 21(1) of the Constitution, the State and State organs had the duty to observe, respect, protect, promote, and fulfill the rights and fundamental freedoms in the Bill of Rights. Under article 21(2) of the Constitution, the State had to take legislative, policy and other measures, including the setting of standards in order to achieve the progressive realization of the rights guaranteed under article 43 of the Constitution. Therefore, as a socio-economic right, the right to housing had to be realized progressively.
The expression “progressive realization” was neither a stand-alone nor a technical phrase. It simply referred to the gradual or phased-out attainment of a goal-a human rights goal which by its very nature, could not be achieved on its own, unless first, a certain set of supportive measures were taken by the State. The exact shape of such measures would vary, depending on the nature of the right in question, as well as the prevailing social, economic, cultural and political environment. Such supportive measures could involve legislative, policy, or program initiatives including affirmative action.
The right to accessible and adequate housing, just like any other right under article 43 of the Constitution required the State to take legislative, policy and other measures to achieve it. Under article 20(5) of the Constitution, the principles that should guide a court in the enforcement of rights provided for under article 43, where the State claimed that it did not have resources to implement the right were the following; -
it was the responsibility of the State to show that the resources were not available;
in allocating resources the State had to give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and
the court, tribunal or other authority could not interfere with a decision by a state organ concerning the allocation of available resources, solely, on the basis that it would have reached a different conclusion.
The court would exercise its powers under article 20(5) of the Constitution by issuing interim orders whose effect was to demand evidence that would exonerate the State from liability. The orders had to be directed at the State organ responsible for the requisite progressive realization measures. That was what the trial court appeared to have done when issuing the interim orders.
The question as to when the right to housing accrued depended upon its progressive realization. In turn, its realization depended upon the availability of land and other material resources.
Illegal occupation of private land would not create prescriptive rights over that land in favour of the occupants but the same could not be said of an “illegal occupation” of public land. On the contrary, where the landless occupied public land and established homes thereon, they did not acquire title to the land but they had a protectable right to housing over the same. The Constitution of Kenya, 2010, radically transformed land tenure in Kenya by declaring that all land in Kenya belonged the people of Kenya collectively as a nation, communities and individuals. It also created a specific category of land known as public land. Therefore, every individual as part of the collectivity of the Kenyan nation had an interest, however indescribable, however unrecognizable, or however transient, in public land.
The right to housing over public land crystallized by virtue of a long period of occupation by people who had established homes and raised families on the land. That right derived from the principle of equitable access to land under article 60(1)(a) of the Constitution.
Faced with an eviction on grounds of public interest, potential evictees that occupied public land, had a right to petition the court for protection. The protection, need not necessarily be in the form of an order restraining the State agency from evicting the occupants, given the fact that the eviction could be entirely justifiable in the public interest. However, under article 23(3) of the Constitution, the court could craft orders aimed at protecting that right, such as compensation, the requirement of adequate notice before eviction, the observance of humane conditions during eviction (U.N Guidelines), the provision of alternative land for settlement among others.
The trial court’s orders for the respondents to furnish it with existing State policies and programs on the provision of shelter and access to housing were not of remedial benefit to the appellant. The trial court ought not to have included non-State actors, who were not parties to the suit in its orders.
The evictions that the appellant complained of were undertaken in breach of a court order. In the eviction, houses and other property were destroyed. Actions by State organs carried out in flagrant disregard of court orders, undermined the constitutional order, more so, if they resulted in the violation of citizens’ rights.
Appeal partly allowed with no orders as to costs.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/34/eng@2021-01-11
Petition 47 of 2019,Geo Chem Middle East v Kenya Bureau of Standards (Petition 47 of 2019) [2020] KESC 1 (KLR) (18 December 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",18 December 2020,2020.0,Nairobi,Civil,Geo Chem Middle East v Kenya Bureau of Standards,[2020] KESC 1 (KLR)               ,,"The petitioner and the respondent entered into a contract wherein the petitioner was to provide qualitative and quantitative inspection and testing services of imported petroleum products, for a term of three years. The contract could be renewed for a further three years upon expiry. The petitioner alleged that it established a petroleum inspection facility at the Port of Mombasa and despite providing inspection services, the petitioner did not receive payments from marketers.In a letter dated February 24, 2010, the Kenya Revenue Authority confirmed that it had been appointed to collect inspection fees from marketers on behalf of the respondent. Later, on October 23, 2012, it was acknowledged that the Kenya Revenue Authority had collected the fees and remitted them to the National Treasury. The Permanent Secretary for Industrialization requested the National Treasury to remit that money to the respondent as money due to the petitioner for services rendered. However, the petitioner did not receive the money.On March 26, 2012, the respondent informed the petitioner that the Government had suspended the contract. The contract for provision of petroleum inspection services provided for a termination notice of six months or for 14 days notice for terminations occurring due to a force majeure event. The petitioner filed a claim for the outstanding fees for its services. The matter was referred to arbitration.The arbitral tribunal made the finding that the suspension of the contract did not constitute termination of the contract as envisaged under the contract and that it was an unlawful termination. The tribunal awarded the petitioner the sum of USD 8, 591, 139/- in respect of the remaining contract period of twenty-nine (29) months as well as USD 3,687,437.21 inclusive of interest and Valued Added Tax for services rendered, and upon deduction of royalties due and owing.Proceedings for the recognition and enforcement of the arbitral award were instituted by the petitioner at the High Court. On the other hand, the respondent applied for the setting aside of the arbitral award on grounds that the arbitral award contained decisions that went beyond the scope of the reference to arbitration.The High Court made the finding that an arbitral award could only be set aside on grounds contemplated under section 35 of the Arbitration Act. The High Court stated that it would therefore decline the invitation to ascertain if there were contradictions in various aspects in the decision of the arbitral tribunal. The High Court also found that there was no basis to set aside the award and allowed the application for recognition and enforcement.The respondent subsequently filed an appeal at the Court of Appeal which raised three issues. One was about whether the court had the jurisdiction necessary to handle an appeal from the High Court on the setting aside of an arbitral award and the others were on whether the arbitral tribunal had jurisdiction and whether the arbitral award went against public policy.The Court of Appeal made the finding that the reference to arbitration and the constitution of the arbitral tribunal was done outside of the time limits provided for under the contract. It also found that the arbitral tribunal determined issues that were outside its scope and that the award which required a state corporation to pay funds in excess of 1 billion Kenya shillings went against public policy.The appeal before the Supreme Court was based on whether the Court of Appeal had jurisdiction in relation to arbitration matters under section 35 of the Arbitration Act and the Court of Appeal's failure to adjudicate on the issue in its judgment. The respondent also raised a preliminary objection on the premise that the Supreme Court had no jurisdiction to entertain the matter under article 163(4).","To determine whether the Supreme Court had jurisdiction to hear and determine the dispute under article 163(4)(a), it was necessary to evaluate whether the contested issues were issues of constitutional controversy that had been determined at the High Court and later at the Court of Appeal. The petitioner raised an issue at the Court of Appeal about whether that court had jurisdiction to hear and determine an appeal from a High Court decision with respect to the award of an arbitral tribunal.The issue about the Court of Appeal's jurisdiction was raised in the petitioner's submissions during the Court of Appeal hearing. However, it mattered not when an objection to jurisdiction was raised because jurisdiction was everything and without it a court would act but in vain.
An appeal could lie to the Court of Appeal from a High Court decision under section 35 of the Arbitration Act where in setting aside an arbitral award, the High Court stepped outside the grounds stated in section 35 of the Arbitration Act and made a decision so manifestly wrong and which had completely closed the door of justice to either of the parties.
The only issue that properly arose for the determination of the Supreme Court under article 163(4)(a), after a reading of the judgments of the High Court and the Court of Appeal was the issue of whether the Court of Appeal had jurisdiction to hear and determine an appeal from a High Court decision made under section 35 of the Arbitration Act.
Arbitration was meant to expeditiously resolve commercial and other disputes where parties had submitted themselves to that dispute resolution mechanism. The role of courts was greatly diminished notwithstanding the narrow window created by sections 35 and 39 of the Arbitration Act.
The High Court declined to exercise jurisdiction to interfere with the arbitral award. Therefore, the only question before the Court of Appeal ought to have been whether the High Court had properly declined to exercise jurisdiction under section 35 of the Arbitration Act.
The Court of Appeal made the determination that leave for the appeal had been granted and that leave had not been the subject of appeal. In granting leave, the question of jurisdiction of the Court of Appeal was determined and it was said that section 35 of the Arbitration Act did not expressly provide for a chance to appeal to the Court of Appeal but that did not bar a party from seeking redress at the Court of Appeal. The finding suggested that the chance to lodge an appeal at the Court of Appeal was open-ended and it did not tarry with the position of the Supreme Court. Such appeals, according to the Supreme Court were only permissible in a narrow sense. The Supreme Court's position about that was that an appeal to the Court of Appeal on a determination made by the High Court under section 35 of the Arbitration Act was permissible where in setting aside an arbitral award, the High Court stepped outside the grounds set out in section 35 and made a decision so grave, so manifestly wrong and which completely closed the door of justice to either of the parties.
Leave to appeal, whether wrongfully or rightfully granted, empowered the Court of Appeal to determine whether the High Court ought to have interrogated the arbitration award or not. If it were to determine that the High Court had wrongly declined jurisdiction, the proper and indeed only course of action open to the Court of Appeal, was to remit the matter back to the High Court with directions for the latter to hear the substantive application for setting aside the arbitral award on its merits. Instead, the Court of Appeal stepped into the shoes of the High Court and proceeded to determine a matter that had not been substantively decided by the latter. In so doing, the Appellate Court usurped the jurisdiction of the High Court, as it was not open to it, to take over an arbitration dispute and determined it on its merits when the High Court had not done so.
To the extent that the judgment of the Court of Appeal purported to interrogate the merits of an arbitral award, in the absence of the High Court’s pronouncement on the same, the judgment was rendered in excess of jurisdiction. The Court of Appeal prematurely, and in excess of its jurisdiction, sat on an appeal that was not ripe, instead of remitting the same to the High Court for determination.
Appeal allowed ",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/1/eng@2020-12-18
Civil Application 15 of 2020,Attorney General v Kenya Ports Authority & 7 others (Civil Application 15 of 2020) [2020] KESC 4 (KLR) (11 December 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",11 December 2020,2020.0,Nairobi,Civil,Attorney General v Kenya Ports Authority & 7 others,[2020] KESC 4 (KLR)               ,,"The background of the matter is that by a Take or Pay Agreement dated 30th September 2014 between the Kenya Ports Authority, the 1st respondent herein and the Kenya Railways Corporation, the 5th respondent, Kenya Ports Authority agreed to consign a set volume of containers through the Standard Gauge Railway to its Inland Container Deport in Embakasi, Nairobi. William Odhiambo Ramogi, Asha Mashaka Omar, and Gerald Lewa Kiti (2nd-4th respondents) filed a petition in the High Court at Mombasa challenging that agreement on the grounds that it would ruin the economy of the City of Mombasa as 40% of its business is attributable to the activities at the Port of Mombasa; that it would also ruin the petitioners’ businesses as well as those of many others thus infringing on their constitutional rights to fair administrative action under Article 47 and their economic rights under Article 43; and affect devolution under Articles 174 and 186. They therefore sought various orders and declarations set out in their petition in the High Court.","The High Court dismissed that application and overruled the preliminary objection, a decision the Court of Appeal upheld in its judgment delivered on 26th September 2019. Aggrieved by that decision, the applicant wishes to prefer a further appeal to this Court.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/4/eng@2020-12-11
Petition 29 of 2019,Popat & 7 others v Capital Markets Authority (Petition 29 of 2019) [2020] KESC 3 (KLR) (11 December 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",11 December 2020,2020.0,Nairobi,Civil,Popat & 7 others v Capital Markets Authority,[2020] KESC 3 (KLR)               ,,"The petitioners were non-executive directors of Imperial Bank Limited (the bank) which had been put under receivership. The respondent, a statutory regulatory authority established under section 5 of the Capital Markets Act and charged with promoting, regulating and facilitating the development of orderly, fair and efficient capital markets in Kenya. In August 2015, the respondent approved the bank’s application to issue to the general public a corporate bond of Kshs. 2 Billion. Only the bank’s Managing Director and the Chief Finance Officer were privy to that application.In September 2015, the managing director passed on and the former head of credit was appointed acting MD and deputized the former CFO. In September, the two caught wind of an array of illegal transactions authorized by the late Managing Director and reported the same to the chair of the non- executive directors. The latter in turn contracted FTI consulting group, to carry out a forensic audit of the bank’s financial affairs and report on its accurate financial position. It also resolved not to utilize the approved bond issue pending the outcome of the investigations by the consultant.
It was found that the former MD had indeed been running a scheme of fraudulent disbursements resulting in losses running into billions of shillings and the board reported the same to Central Bank (CBK) who in turn placed the bank under receivership and appointed the Kenya Deposit Insurance Corporation its Receiver/Manager for a period of twelve (12) months. The appointment also included a declaration of a moratorium on the bank. On the same day, the respondent, on its part, instructed the Nairobi Stock Exchange (NSE) not to proceed with the listing of the bank’s bond issue on the Fixed Income Securities Market Segment until further notice.
Circumstances surrounding the issuance of the bond were brought to the fore by the respondent. In exercise of its statutory authority, it served the petitioners with notices to show cause and required them to respond, within 14 days, to allegations of negligence in the discharge of their mandate as directors of the bank. No hearing took place on the designated day. However, the appellants claimed that an inquisitorial hearing presided by CMA’s chair took place and a summary ruling was entered against the bank’s directors.
The petitioners appealed against that decision at the High Court citing conflict of interest. They said that the CMA had acted as licensee, investigator and judge in the issue of the bond. Additionally, they contended that the authority had acted as juror in its own case. The same officials who had greenlighted the issuance of the bond had gone ahead to rule against its regularity and legality.
At the High Court, the notices sent to the petitioners to show cause were quashed. The court’s reasoning was that there existed a real possibility of bias. By acting in both inquisitorial and enforcement mandate, the authority was likely to be biased. It therefore ought to have delegated its functions to an independent body.
At the Court of Appeal, the authority’s decision was upheld. The Capital Markets Act expressly authorized the overlapping inquisitorial and enforcement functions of the respondent. Therefore, the respondent was expected to make unprejudiced judgement on matters it had investigated.
As a last resort, the appellants called upon the Supreme Court to consider the propriety of the dual statutory mandate granted to the respondent as the sole investigator and enforcer of capital markets infractions in Kenya.","Prior to the enactment of the Capital Markets Act, the capital market in Kenya faced multiple challenges running from illicit intermediaries to lack of a proper legislative guide hence the need for a firm regulatory regime. Sections 5 and 11(cc) of the Capital Markets Act established the Capital Markets Authority with the mandate to remove impediments, promote wider performance of the general public in the securities commodities market and derivatives and for protection of investor interests. To achieve the objectives, section 11 (3) of the Capital Markets Act granted the authority power to discipline errant members and to regulate and facilitate the development of an orderly, fair and efficient capital market.The Capital Markets Authority had power to inquire, either on its own motion or at the request of any other person, into the affairs of any person which the authority had approved or to which it had granted a license and any public company the securities of which were publicly offered or traded on an approved securities exchange or on an over-the-counter market.
The natural justice nemo judex in causa sua esse (no one should be a judge in his own cause) principle decreed that no person should be allowed to be a judge in their own cause or in a cause they had an interest in the outcome including situations where one desired or was keen on obtaining a given result. A prosecutor, for example, had an interest in the conviction of a suspect he hauled into court. 
There were exceptions to every general rule. An important exception to the nemo judex in causa sua esse principle raised in the instant case was where the overlap of functions was a creature of statute and as long as the constitutionality of the statute was not in issue.
Administrative Commissions (Tribunals) would have repeated dealings, in both administrative or adjudicative capacities, with the same parties. Hence, to achieve the efficiency required in the operations of the securities markets, the legislatures more often than not, allowed for an overlap of functions which in normal judicial proceedings would be kept separate.
In assessing allegations of bias, courts must be sensitive to the fact that, in their “protective role”, securities commissions have a special character. It was not enough to merely claim bias because a commission, in undertaking its preliminary internal review, did not act like a court. If it was clear from its empowering legislation that certain activities which might otherwise be
considered ""biased"" form an integral part of its operations and the Commission had not acted outside its statutory authority, the doctrine of""reasonable apprehension of bias"" per se could not be sustained. The Commission’s structure and responsibilities as well as the manner of the discharge of its mandate must, inter alia, be considered.
Administrative tribunals were not supposed to operate like courts of law. That was why they were allowed to be masters of their own procedure although they must act fairly. For purposes of efficiency and in the carrying out of the objectives of the Capital Markets Act, especially in the expeditious disposal of disputes that arose in the operations of the capital markets, the functions set out in section 11(3)(cc) and 11(3)(h) could not be performed by separate bodies.
Section 11(3)(cc) and 11(3)(h) of the Capital Markets Act were not unconstitutional. The overlapping mandate did not render those sections unconstitutional. What would have been unconstitutional would have been the discharge of that dual mandate.
The court must be guided by the letter and spirit of the provisions of articles 50(1) and 47(1) as read with article 25(c) of the Constitution and give life to Parliament’s intention in the enactment of section 11(3) (cc) & (h) of the Capital Markets Act. Courts ought to ensure that its interpretation of those provisions did not hamper the operations of the CMA and/or those of other regulatory bodies such as the Central Bank of Kenya and the Competition Authority of Kenya. Hence, in promoting public policy and efficient administration of the securities market in Kenya, the right to fair administrative action could not be sacrificed at the altar of efficiency or public interest.
The Capital Markets Authority could not be allowed to ride roughshod over the non-derogable constitutional rights of investors. It would be counterproductive to scareo scare away the very prospective investors it sought to entice. Narrow interests such as fostering investor confidence in the securities market could not be used as an excuse to deprive the directors of their constitutional right to a fair hearing of the allegations against them.
Despite the legality of the duality of the respondent’s mandate under section 11(3) (cc)(h) of the Capital Markets Act, in any matter that could be classified as judicial or quasi-judicial, or one where, in the view of a reasonable man conversant with the matter, there was likely to be bias or a reasonable apprehension of bias, the authority ought to be impartial.
Reasonable apprehension of bias was a legal standard for disqualifying judges and administrative decision-makers. If there was a real possibility that a reasonable person, properly informed and viewing the circumstances realistically and practically, could conclude that the respondent might be prone to bias, that would be a constitutional violation that could not be overlooked in the name of public interest.
In the discharge of its mandate under the CMA Act, the respondent must always first determine whether or not its act or decision was judicial or quasi-judicial and whether or not it was likely to adversely affect the rights of the persons or bodies under investigation. If it is either of the two or both, it must comply with the requirements of impartiality and independence under articles 50 (1) and 47 of the Constitution. Sections 11A(1) and 14(1) of the CMA Act empowered the respondent to delegate its functions and powers to other bodies or persons. As such, the objectives of the CMA Act would still be realized.
The respondent merely referring to the enforcement proceeding in the instant matter, euphemistically, as “administrative” did not change its intrinsic character. The nature of the enforcement proceedings sought to be undertaken by the respondent against the petitioners in the matter bespoke a quasi-judicial process. Based on the material evidence placed before it, the respondent would have had to determine the culpability or otherwise of the petitioners. If found culpable, pursuant to section 11(3) (cc) of the CMA Act, the respondent would impose sanctions, including financial penalties against the petitioners.
There was a real possibility of bias in the petitioners’ case. The authority had appraised and approved the bank’s application. The same authority also initiated and conducted preliminary investigations into the bank’s conduct in relation to the application and upon satisfying itself that the bank could have have violated the relevant provisions of the Act and the Regulations, it made a decision to charge the petitioners and went ahead to formulate the requisite charges. It was the same Board of the Capital Markets Authority that also purported to preside over the hearing of the director’s cases. That obviously led to an inescapable appearance of partiality on the Authority’s part.
Appeal partly allowed.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/3/eng@2020-12-11
Petition 8 of 2019,Surya Holdings Limited & 2 others v CFC Stanbic Limited & another (Petition 8 of 2019) [2020] KESC 2 (KLR) (Civ) (4 December 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",4 December 2020,2020.0,Nairobi,Civil,Surya Holdings Limited & 2 others v CFC Stanbic Limited & another,[2020] KESC 2 (KLR)               ,,"The appellants by way of Notice of Motion application dated 18th September, 2020 and filed on 21st September 2020 and brought under Rule 40(4) of the Supreme Court Rules 2010 (sic) seek the following orders:That the Honorable Court be pleased to grant leave to the Appellants to file a Supplementary Record of Appeal containing;
i)
The Supplementary Record of Appeal filed by the Respondent at the Court of Appeal and which comprises the Debenture Agreement dated 8th December 2010;
ii)
The 1st Respondent’s Written Submissions dated 5th July 2018 filed at the Court of Appeal; and
iii)
The 2nd Respondent’s Written Submissions dated 23rd July 2018 filed at the Court of Appeal.
b)
That the Supplementary Record of Appeal be filed within seven (7) days or such period as the Court will determine.
c)
That costs of this application be in the Appeal.
2.
The application is based on the grounds that the Respondents’ written submissions filed at the Court of Appeal and the Supplementary Record of Appeal filed by the 1st Respondent in the Court of Appeal were inadvertently omitted while compiling the Record of Appeal and that it is necessary that the documents are placed before this Court for completeness of record.
3.
The application is supported by the annexed affidavit of Fredrick Ngatia, an Advocate who has the conduct of this matter on behalf of the appellants. The appellants also filed submissions on 21st September 2020 reiterating the grounds in support of the application and adding that the regrettable omission, which was not discovered earlier, was occasioned by the great urgency with which the record of appeal was compiled in order to preserve the substratum of the appeal. They submit that none of these documents raise any new matters as to cause prejudice. They further submit that both parties will be at liberty to refer to them during the hearing of the appeal, the parties having already advanced rival arguments set out in the rival arguments set out in the respective written submissions already on record. The appellants urge the Court to make an identical finding as was in Alfred Asidaga Mulima & 2 others (suing as representatives of ex-East African Airways Staff Welfare Association) v Attorney General & 8 Others [2019] eKLR and exercise discretion in their favour.
4.
The Respondents vide their written submissions filed on 2nd October 2020 do not oppose the application in view of the extreme urgency in the matter and seek that the main petition be fixed for hearing.","In considering whether to exercise discretion and grant leave to file documents out of time, we have time and again restated that the onus is on the applicant to explain the delay and that no prejudice will be caused to the opposing party. Rule 40(4) of the Supreme Court Rules 2020 obligates an applicant to seek leave to file a Supplementary record of appeal to include a document omitted from the record of appeal unless such a supplementary record of appeal is filed within 15 days of lodging the record of appeal.We note that the parties herein agree as to the need for the supplementary record of appeal to be filed, the documents sought to be introduced being central to the substratum of the appeal. It is apparent that the Debenture dated 8th December 2010 was also presented to the Court of Appeal by way of supplementary record of appeal and that the submissions filed at the Court of Appeal are relevant to the appeal herein.
8.
The parties having already filed their substantive appeal on 14th February 2019 and the Court having issued conservatory orders in this matter on 22nd March 2019, we are persuaded to exercise our discretion in favour of the appellants and allow the application in order to progress the appeal for hearing at the earliest.
Determination
9
Accordingly, the Notice of Motion application dated 18th September 2020 is allowed in the following terms:
a)
Leave be and is hereby granted to the appellants to file a Supplementary Record of Appeal containing;
i)
The Supplementary Record of Appeal filed by the Respondent at the Court of Appeal and which comprises the Debenture Agreement dated 8th December 2010;
ii)
The 1st Respondent’s Written Submissions dated 5th July 2018 filed at the Court of Appeal; and
iii)
The 2nd Respondent’s Written Submissions dated 23rd July 2018 filed at the Court of Appeal.
b)
The Supplementary Record of Appeal be filled within seven (7) days from the date of this ruling.
c)
Costs of this application to abide the outcome of the appeal.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/2/eng@2020-12-04
Civil Application 31 of 2020,Waibara v Kibeh & another (Civil Application 31 of 2020) [2020] KESC 5 (KLR) (Civ) (4 December 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",4 December 2020,2020.0,Nairobi,Civil,Waibara v Kibeh & another,[2020] KESC 5 (KLR)               ,,"On 7th October 2020, Korir J, determined H. C. Petition No.21 of 2020 between the parties herein with the result that the seat of Member of Parliament for Gatundu North Constituency was declared vacant.The 1st Respondent, Anne Wanjiku Kibeh thereafter filed Civil Application No.E314 of 2020 at the Court of Appeal seeking stay of execution of the above decision under Rule 5(2)(b) of the Court of Appeal Rules, 2020. The stay was granted on 28th October 2020.
3.
On 4th November 2020, the Applicant, Clement Kungu Waibara, filed a Notice of Motion predicated on Section 16(3) of the Supreme Act seeking leave to institute an appeal before this Court.
4.
While opposing the Motion, the 1st Respondent, on 26th November 2020 filed a Notice of Preliminary Objection seeking orders that the Motion be struck out on the grounds that:
1)
This Court lacks the jurisdiction to hear applications arising from interlocutory decisions of the Court of appeal; and
2)
This Court lacks jurisdiction, under Article 163(4)(b) of the Constitution, to hear appeals, and interlocutory applications therein (or in intended appeals) from exercises, by the Court of Appeal, of judicial discretion pursuant to Rule 5 (2)(b) of the Court of Appeal Rules, 2010.
B. Sumbissions by the Parties
i) The 1st and 2nd Respondent’s submissions
5.
In submissions filed on 26th November 2020, the 1st Respondent has relied on our decisions in Lawrence Nduttu & 6000 others v. Kenya Breweries Ltd & 2 others Sup. Ct. Application No.4 of 2012; [2012] eKRL, Hassan Ali Joho & another v. Suleiman Said Shahbal & 2 others, Sup. Ct. Petition No.10 of 2013; [2013] eKLR, Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone, Application No.4 of 2012 [2012] eKLR, Teachers Service Commission v. Kenya National Union of Teachers & 3 others [2015] eKLR, Daniel Kimani Njehia v. Francis Mwangi Kimani & another Sup. Ct. Civil Application No.13 of 2014, Basil Criticos v. Independent Electoral and Boundaries Commission & 2 others, Sup. Ct. Petition No.22 of 2014, among others, to argue that this Court has no jurisdiction to hear and determine any question arising from interlocutory applications at the Court of Appeal as there would be no final order to which our jurisdiction under any of the limbs in Article 163(4) could be invoked.
6.
The 2nd Respondent, by its submissions filed on 23rd November 2020, has also raised the issue of lack of jurisdiction of this Court to entertain the present Motion along the same lines as the 1st Respondent.
ii) The Applicant’s submissions
7.
We have seen no specific response to the Preliminary Objection but in submissions filed on 4th November 2020, the Applicant has stated that;
“Pursuant to Section 16(3) of the Supreme Court Act, the Supreme Court may grant leave to appeal against an order made by the Court of Appeal on an interlocutory application if satisfied that it is necessary, in the interests of justice, for the Supreme Court to hear and determine the proposed appeal before the proceedings concerned is concluded. Under Section 16(1), it shall be in the interests of justice for the Supreme Court to hear and determine a proposed appeal if inter-alia, the appeal involves a matter of general public importance”.
8.
We shall take the above submission to be the Applicant’s position on the issue before us.","In the Teachers Service Commission case we partly rendered ourselves thus:“An application so tangential, cannot be predicated upon the terms of Article 163(4) (a) of the Constitution. Any square involvement of this Court in such a context would entail comments on the merits, being made prematurely on issues yet to be adjudged, at the Court of Appeal, …. Such an early involvement of this Court in our opinion would expose one of the parties to prejudice with the danger of leading to an unjust outcome.In these circumstances, we find that this Court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5(2) (b) of that Court’s Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court”[Emphasis added]Further, in Basil Criticos, we posed the following question as regards appeals to this Court from Rulings on interlocutory applications before the Court of Appeal:
“
In the absence of a Judgment by the Court of Appeal, in which constitutional issues have been canvassed, what would this Court be sitting on appeal over?”
11.
We reiterate the above findings and in that regard, we note that the Judgment of the High Court which led to proceedings before the Court of Appeal,thence the impugned Ruling, arose from a constitutional Petition and therefore the above question is relevant in the present circumstances.
12.
Without a Judgment of the Court of Appeal which would then create a finality to contested issues and then point parties to the specific limb in Article 163(4) to which our intervention would be required, we cannot see how our jurisdiction under that Article can be properly invoked.
13.
In the circumstances, we decline the misguided invitation to assume jurisdiction and would instead find that the Notice of Motion dated 30th October 2020 is one fit for striking out.
14.
As for costs, they follow the event and so the Applicant shall pay the costs thereof.
D. Disposition
i)
The Notice of Motion dated 30th October 2020 is hereby struck out.
ii)
The Applicant shall pay the attendant costs.",Struck out,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/5/eng@2020-12-04
Application 27 of 2020,Kenya Hotel Properties Limited v Attorney General & 5 others (Application 27 of 2020) [2020] KESC 6 (KLR) (20 November 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",20 November 2020,2020.0,Nairobi,Civil,Kenya Hotel Properties Limited v Attorney General & 5 others,[2020] KESC 6 (KLR)               ,,"The appellant had breached timelines issued by the deputy registrar of the court, to file and serve submissions within 21 days. The appellant instead filed the submissions 25 days out of time without the leave of the court and without reference to the respondent. There was no explanation for the delay was given by the appellant when the matter came up before the deputy registrar again. The respondents also alleged that the appellant’s subsequent reasons for delay stated in their replying affidavit were unsupported by any evidence and were false.Thus, the respondent filed the instant application to have those pleading struck out.","Section 21 of the Supreme Court Act granted the Supreme Court general powers to make any ancillary or interlocutory orders. Rule 65 of the Supreme Court Rules 2020 empowered the Supreme Court to issue directions that were appropriate where a provision of the rules or practice directions were not complied with. The bottom line in all cases was for parties to litigation to reasonably access justice.Article 159 of the Constitution set out the guiding principles of the exercise of judicial authority which included that justice shall not be delayed and shall be administered without undue regard to procedural technicalities.
Compliance with the Supreme Court’s orders and directions on filing and service of documents was imperative. It went to the root of the rule of law as well as the dignity of the court. Rule 12(1) of the Supreme Court Rules provided that filing would be deemed complete when the document was submitted both electronically and physically.
The delay in compliance by the appellant was therefore prejudicial to the respondent who was deprived the opportunity to respond to the appellant’s submissions. 
Every party had an obligation to honour the court’s directions. Late filing of submissions was not incurable and the court had discretion to allow such late filing. However, the appellant had not moved the court appropriately by way of an application for extension of time to file the said documents. 
The consideration to bear in mind was what prejudice had been suffered by the respondent/applicant due to the appellant’s failure to timeously file its submissions and whether the respondent/applicant could be facilitated to mitigate such prejudice.
At the hearing, the respondent/applicant could well argue their appeal orally. Furthermore, the respondent/applicant could always be granted leave to file supplementary submissions in reply to the submissions by the appellant which were filed out of time all in the interest of justice and to an expeditious disposal of the litigation.
The late filed submissions were admitted and deemed as filed within time by dint of section 21 of the Supreme Court Act and rule 65 of the Supreme Court Rules. The respondent was granted fourteen (14) days to draw, file and serve supplementary submissions.
Application disallowed, appellant to bear costs of application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/6/eng@2020-11-20
Application 24  [E008] of 2020,Attorney General & another v Okoiti & 4 others (Application 24  [E008] of 2020) [2020] KESC 8 (KLR) (9 October 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",9 October 2020,2020.0,Nairobi,Civil,Attorney General & another v Okoiti & 4 others,[2020] KESC 8 (KLR)               ,,"Uponperusing the Notice of Motion by the applicants dated 10th August 2020 and filed on 15th September 2020, brought under Rules 15(2), 31, 36(1), 37(1) and 38 of the Supreme Court Rules, 2020 in which the applicants seek extension of time to lodge and serve the Notice and Record of Appeal from the judgment and decree of the Court of Appeal dated 19th June 2015, (Koome, Gatembu & J. Mohammed JJ.A) in Civil Appeal No.10 of 2015, and in the alternative that the Notice of Appeal filed on 24th June 2020 and lodged in the Supreme Court registry on 30th July 2020 be deemed to be properly on record and that the Court be pleased to extend time to file a record of appeal;","Uponconsidering the applicants’ submissions that due to the global corona virus pandemic, the Court of Appeal had issued directions as to electronic filings in which the applicants invoked by sending an email on 24th June 2020 containing the Notice of Appeal for filing and seeking proceedings. That the applicants never received a response on the filing of the Notice of Appeal before the Court of Appeal and were therefore not in a position to transmit the same to the Supreme Court within the prescribed timelines. That it was only after the follow up by the 1st applicant’s clerk and counsel at the Court of Appeal Registry that the Notice of Appeal was retrieved on 30th July 2020, the same day the applicants transmitted it to the Supreme Court Registry. The applicants also submit that their application is meritorious and in public interest considering that the subject matter of the dispute is procurement issues stemming from Article 227 of the Constitution and concerning the construction of the Standard Gauge Railway and further that the delay was occasioned by factors beyond the applicants’ control as the delay arose from the Court of Appeal’s failure to acknowledge the filing of the Notice of Appeal as soon as it was lodged and the challenges associated with the electronic filing introduced by the Judiciary during the corona virus pandemic to minimize physical contact between people;Uponconsidering the proceedings before the Honourable Deputy Registrar and directions issued before him on 18th September 2020 that parties do file submissions by end of day on 21st September 2020, and no party having filed submissions in support or in opposition to the application, the 4th and 5th respondents having indicated through their respective counsel that they are not opposed to the application;
5.
Uponconsidering the submissions by the 3rd respondent filed on 22nd September 2020 in opposition to the application on the grounds that the 4th respondent exercised its due diligence and filed its appeal on time and the applicants did not pursue the procedure under Rule 33(6) by filing the documents they had in possession to demonstrate some diligence; that the applicants have not satisfactorily explained the whole period of delay to Court; that the Court has no jurisdiction, the applicants not having sought certification of the intended appeal as a matter of general public importance under Article 163(4)(b) of the Constitution;
6.
Uponconsidering the 1st and 2nd respondents’ Preliminary Objection filed on 23rd September 2020 on the grounds that the orders sought are not available in law in the absence of certification under Article 163(4)(b) of the Constitution and that the intended appeal raises no Constitutional issue meriting interpretation by this Court under Article 163(4)(a) and having further considered their submissions filed on 23rd September 2020 in which they dispute that the applicants have laid any satisfactory basis to warrant the prayers sought and relying on the mandatory use of the word “shall” in rule 38(1) of this Court’s Rules 2020 as rendered in Law Society of Kenya v Centre for Human Rights and Democracy & others (Sup.Ct.Pet 14 of 2013), Rule 46(1) of the Rules which deem a Notice of Appeal withdrawn by failure to lodge an appeal within the timeframe and Rule 65 which demonstrates the gravity of non-compliance with the Rules;
7.
The 1st and 2nd respondents further contend that the application is defective for invoking the Court of Appeal Rules and that the 1st and 2nd respondents stand to suffer great prejudice since their rights protected by the Court of Appeal judgment are likely to be infringed again. In addition, public interest in this matter will be prejudiced given the fact that public funds and/or resources will be expended as some of the respondents like the 4th respondent will be represented by private counsel to defend a meritless petition;
8.
By a unanimous decision, we make the following findings:
a.
The Court has jurisdiction to extend time under rule 15(2) of the Supreme Court Rules 2020 as sought in the present application;
b.
The intended appeal is founded on provisions of Article 163(4)(a) of the Constitution. As to whether the case meets that threshold or should have been certified under Article 163(4)(b) is a matter to be determined on merit.
c.
The applicant satisfies the principles set in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; [2014] eKLR in that their explanation for the delay is reasonable and beyond their making and the delay in filing the petition of appeal is not inordinate;
d.
The Notice of Appeal was filed within time, the delay only relating to its transmission under Rule 36(3) which is excusable;
e.
The subject matter is one of public interest consideration, distinguishable from general public importance which requires certification; and
f.
No prejudice will be occasioned to the respondents as the applicants had copied to the respondents’ counsel the correspondence relating to the filing of its Notice of Appeal and seeking proceedings as early as 24th June 2020 and there exists a separate appeal among the parties in this application by the 4th Respondent herein, emanating from the same decision of the Court of Appeal being Petition No.13 of 2020 in which all the parties herein will in any event participate.
9.
In the end, we make Orders as follows:
a.
The Notice of Motion by the Applicant dated 10th August 2020 and filed on 15th September 2020 be and is hereby allowed in the following terms:
i.
The Notice of Appeal filed on 24th June 2020 and transmitted to the Supreme Court on 30th July 2020 be and is hereby deemed to be properly on record;
ii.
The applicants to file and serve their record of appeal within 14 days from the date of this ruling.
b.
The Deputy Registrar shall issue any and further directions as may be deemed necessary in the circumstances;
c.
Costs shall abide the eventual decision of the Petition.
Orders accordingly",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/8/eng@2020-10-09
Civil Application 21 of 2020,Mwangangi & 10 others v Commissioner of Lands & 3 others (Civil Application 21 of 2020) [2020] KESC 7 (KLR) (9 October 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",9 October 2020,2020.0,Nairobi,Civil,Mwangangi & 10 others v Commissioner of Lands & 3 others,[2020] KESC 7 (KLR)               ,,"Uponperusing the Notice of Motion by the Applicants dated 11th August 2020 and filed on 14th August 2020, which application is brought pursuant to the provisions of Section 26 and 53 of the Supreme Court Act, 2012, and in which the Applicants seeks enlargement of time to file an application for review of the ruling of the Court of Appeal (W. Ouko (P), M. Warsame & F. Sichale, JJA) in Civil Application SUPP No. 9 of 2018 (UR 6/2018) dated 10th July 2020; and","Uponperusing the supporting affidavit of Sammy Mwangangi deposed to on 11th August 2020 as well as the 3rd & 4th Respondents’ Replying Affidavit deposed to on 27th August 2020 and filed on even date; andUponconsidering the written submissions on record for the Applicants wherein they contend that the delay in filing the application for review to this Court was inadvertent, and was occasioned by delay in the assessment of filing fees and uploading of documents on this Court’s e-filing portal; and
Noting thatthe 3rd & 4th Respondents in opposing the application submit that no purpose will be served by the extension as the matter they seek to pursue before this Court is not a matter of general public importance as alleged by the Applicants, but is one seeking to enforce private rights; and
4.
Havingconsidered the application, the replying affidavit and the submissions filed by the respective parties, by a unanimous decision of this Bench, we find that;
(a)
This Court’s jurisprudence on extension of time was settled in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; (2014) eKLR. In that matter, we stated inter alia that grant or refusal of extension of time is a matter of judicial discretion to be exercised, not subjectively or at whim or by rigid rule of thumb, but in a principled manner in accordance with reason and justice.
(b)
The Applicants have explained, cogently and reasonably, that the delay in filing their application for review of the Court of Appeal’s decision denying them timeous access to this Court was not of their own making. We thus accept that explanation.
(c)
The delay of six (6) days is in any event not inordinate and we see no prejudice caused to the Respondents, especially the 3rd and 4th Respondents, who have strenuously opposed the application.
(d)
The question whether the Applicants have established that the issues in contest are of general public important as enunciated in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone SC Application No. 4 of 2012; [2013] eKLR is a matter that cannot be determined now, it being the gravamen of the intended review application under Article 163(5) of the Constitution.
(e)
Prayer 3 of the Motion under consideration seeking orders that “the Originating Motion dated 22nd July 2020 under Reference No.SC APP;/E007/2020 be deemed as dully (sic) filed” is not one for granting in the present instance. It is best that a proper motion for review under the Constitution, the Supreme Court Act and Rules be filed pursuant to the orders granted herebelow.
5.
In the circumstances, we now make ordersas follows;
(a)
The time within which to file the application for review of the Ruling of the Court of Appeal (W. Ouko (P), M. Warsame & F. Sichale, JJA) dated 10th July 2020 is hereby enlarged and the same to be filed within 7 days of this Ruling.
(b)
Directions to be taken before the Deputy Registrar thereafter.
(c)
Each party shall bear its costs of the Application.
6.
Orders accordingly.",Court Issued further directions,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/7/eng@2020-10-09
Petition (Application) 2 of 2020,Babayao v Republic (Petition (Application) 2 of 2020) [2020] KESC 11 (KLR) (23 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",23 September 2020,2020.0,Nairobi,Criminal,Babayao v Republic,[2020] KESC 11 (KLR)               ,,"Uponperusing the Notice of Motion application by the Petitioner/Applicant dated 7th August 2020 and filed on 11th August 2020, which application is brought pursuant to leave granted by the Deputy Registrar on 14th July 2020 as well as Rule 15 of the Supreme Court Rules, 2020; and","Uponperusing the supporting affidavit of Counsel for the Petitioner/ Applicant, Prof. T.O. Ojienda, SC, deponed to on 7th August 2020; andUponconsidering the written submissions by the Petitioner/Applicant dated 10th August 2020 and filed on 11th August 2020 wherein the Applicant/Petitioner contends that the delay in filing the Supplementary Record of Appeal dated 30th July 2020 and filed on 5th August 2020 was occasioned by inability to obtain the order and certified copies of typed Court proceedings from the Court of Appeal timeously despite request made on 30th December 2019 and noting;
Thatthe Respondent did not file any response or submissions with regard to the application despite directions issued by the Deputy Registrar on 14th August 2020, 19th August 2020 and 26th August 2020 that submissions ought to be filed by 28th August 2020. We have however seen submissions purportedly filed by the Respondent on 16th September 2020 which are hereby rejected for being filed out of time contrary to Rule 31(4) of these Court Rules 2020; and
4.
Havingconsidered the application and the submissions filed by the Petitioner/Applicant, by a unanimous decision of this Bench, we find that;
(a)
This Court has the jurisdiction to consider and determine an application for leave to extend time to do anything required by its Rules - see Anuar Loitiptip v. Independent Electoral & Boundaries Commission SC Petition (App.) No. 18 of 2018; [2018] eKLR as well as Section 21(3) of the Supreme Court Act and Rule 53 of the Supreme Court Rules, 2012;
(b)
That the application by the Petitioner/Applicant dated 7th August 2020 and filed on 11th August 2020 satisfies the principles set out by this Court in Base Titanium Limited v. County Government of Mombasa & another SC Petition (App). No. 22 of 2018 and earlier in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; (2014) eKLR on extension of time;
(c)
We also find that the Petitioner/Applicant has provided sufficient grounds and reasons for the delay in filing the Supplementary Record of Appeal as the delay in obtaining the order and certified typed copies of proceedings from the Court of Appeal is an administrative issue that cannot and should not be held against the Petitioner/Applicant;
(d)
The Respondent has not opposed the application neither has he shown what prejudice shall be occasioned upon him if the Applicant’s application is allowed.
5.
In the circumstances, we now make ORDERS as follows;
(a)
The Notice of Motion application by the Petitioner dated 7th August 2020 and filed on 11th August 2020 is hereby allowed;
(b)
The Supplementary Record of Appeal dated 30th July 2020 and filed on 5th August 2020 is deemed as duly and properly filed;
(c)
The parties to appear before the Deputy Registrar for further directions;
(d)
Each party shall bear its costs.
6.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/11/eng@2020-09-23
Petition 18 of 2019,Director of Public Prosecution v Kamau & 4 others (Petition 18 of 2019) [2020] KESC 14 (KLR) (Civ) (23 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",23 September 2020,2020.0,Nairobi,Civil,Director of Public Prosecution v Kamau & 4 others,[2020] KESC 14 (KLR)               ,,"On 26th September 2019, Ibrahim SCJ recorded a consent order marking the Petition herein as withdrawn. Parties were however unable to agree on costs and so the learned Judge directed parties to file submissions limited to the question whether costs should be paid to the Respondents consequent upon the withdrawal aforesaid.All parties subsequently filed their submissions and digests of authorities which we have taken note of. Suffice it to say that the Appellant, the Director of Public Prosecutions, has made the point that no order as regards costs should be made as the issue of costs was never raised at both the High Court and the Court of Appeal and it is strange that it has now become a contested issue. The Respondents, save the 3rd, 4th and 5th disagree and submit that costs must follow the event even as it is a matter of discretion for the Court.","On discretion, we stated thus:“Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.”We reiterate the above holdings as properly applicable to the present case and would only add that the fact that the Appellant is a public entity is not in itself a reason to deny an opposing but entitled party its costs in appropriate circumstance – see Reference No.1 of 2014, Council of Governors v The Senate & 2 Others. Each case must be looked at in its specific circumstances and costs awarded or denied at the complete discretion of the Court.
7.
Having so stated, we note that the initial proceedings at the High Court were commenced by the 1st Respondent challenging his arrest and arraignment in Court for certain criminal offences laid at the instance of the Appellant and the 2nd Respondent. In determining the matter, the High Court stated that, “as the issues raised herein were issues of great public interest not restricted to the Petitioners, we make no order as to costs”
8.
The Court of Appeal on its part also exercised discretion and directed that each party ought to bear its own costs “on account of the public interest issues raised in the appeal”.
9.
We have considered the rival submissions and are convinced that, whereas the Appellant has withdrawn the Petition when it was ready for hearing and while the Respondents have spent time and resources preparing for the hearing aforesaid, we must agree with both the High Court and the Court of Appeal that the issues raised in the Appeal were of great public interest – i.e. the extent of powers bestowed upon the Ethics and Anti-Corruption Commission and whether corruption related offences can be initiated when the said Commission was not properly constituted and whether the President of the Republic of Kenya can direct the Commission or the Director of Public Prosecutions in the execution of their constitutional mandates. These matters transcended the specific interests of the parties and have settled in the public sphere thus attracting the public interest. An order of costs against any party would, in the circumstances, not be fair.
10.
In the event, we hereby exercise discretion and order as follows:
i.
The Petition of Appeal herein is marked as withdrawn.
ii.
Each Party shall bear its costs of the Appeal.
11.
It is so ordered.",Withdrawn,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/14/eng@2020-09-23
Petition 47 of 2019,Geo Chem Middle East v Kenya Bureau of Standards (Petition 47 of 2019) [2020] KESC 12 (KLR) (23 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",23 September 2020,2020.0,Nairobi,Civil,Geo Chem Middle East v Kenya Bureau of Standards,[2020] KESC 12 (KLR)               ,,"Uponperusing the Notice of Motion by the Appellant/Applicant dated 11th September 2020 and filed on 14th September 2020, which application is brought under Rule 40(4) of the Supreme Court Rules, 2010; andUponperusing the supporting affidavit of Counsel for the Appellant/ Applicant, Fredrick Ngatia, sworn to on 11th August 2020; and
3.
Uponconsidering the written submissions by the Appellant/Applicant dated 14th September 2020 and filed on the same day wherein the Appellant/Applicant contends that the delay in filing the Supplementary Record of Appeal was occasioned by inability to obtain the Judges’ notes as they were not available at the time of filing the Appeal and that three letters; (i) one dated 23rd March 2012 from the Respondent to the Commissioner General, Kenya Revenue Authority; (ii) another dated 25th June 2013 from the Appellant’s lawyers, M/s Mahmoud & Gitau Advocates, to the Respondent and; (iii) another dated 15th July 2013 from the Respondent to the Appellant’s lawyer, M/s Mahmoud & Gitau Advocates, were all inadvertently omitted from the Record of Appeal and;","Uponconsidering the written submissions by the Appellant/Applicant dated 14th September 2020 and filed on the same day wherein the Appellant/Applicant contends that the delay in filing the Supplementary Record of Appeal was occasioned by inability to obtain the Judges’ notes as they were not available at the time of filing the Appeal and that three letters; (i) one dated 23rd March 2012 from the Respondent to the Commissioner General, Kenya Revenue Authority; (ii) another dated 25th June 2013 from the Appellant’s lawyers, M/s Mahmoud & Gitau Advocates, to the Respondent and; (iii) another dated 15th July 2013 from the Respondent to the Appellant’s lawyer, M/s Mahmoud & Gitau Advocates, were all inadvertently omitted from the Record of Appeal and;Notingthe Respondent’s response to the Motion by way of a Replying Affidavit sworn on 16th September 2020 by Jotham Okome Arwa, Advocate and Submissions filed on 17th September 2020 wherein the Respondent contends that the application is incompetent as the documents sought to be admitted are not annexed and therefore their authenticity and relevance cannot be authenticated. In addition, that the entire record of appeal is jumbled up and the letters in question were deliberately excluded to prejudice the Respondent’s case and in any event, the Judges’ notes have not been served on the Respondent and on the whole, allowing the application would greatly inconvenience the Respondent and therefore the same ought to be dismissed with costs; and
5.
Havingconsidered the application and the submissions filed by the Appellant/Applicant and by the Respondent by a unanimous decision of this Bench, we find that;
a.
By Rule 15(b) of this Court’s Rules, 2020, the Court may, at its discretion extend time for any action under the Rules – see also Anuar Loitiptip v Independent Electoral & Boundaries Commission [2018] eKLR.
b.
That the principles for grant of an order of extension of time are that an Applicant must give sufficient reasons for any delay and that the period of delay is nonetheless an important consideration in the Court’s exercise of discretion to grant or deny the extension – see Base Titanium Limited v County Government of Mombasa & another SC Petition (App). No. 22 of 2018.
c.
In the present case, the explanation given by the Appellant/Applicant is reasonable and we see no prejudice to be caused to the Respondent as the three letters sought to be admitted have certainly been in its custody in proceedings before the Superior Courts below and failure to obtain Judges’ notes timeously cannot be blamed on the Appellant/Applicant but on slow administrative Court processes.
6.
In the circumstances, we now make ordersas follows;
a.
The Notice of Motion by the Appellant/Applicant dated 11th September 2020 and filed on 14th September 2020 is hereby allowed;
b.
The Supplementary Record of Appeal shall be filed and served within 3 days of this Ruling.
c.
Each party shall bear its costs.
7.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/12/eng@2020-09-23
Application 6 of 2020,Kihoro v Attorney General (Application 6 of 2020) [2020] KESC 78 (KLR) (23 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",23 September 2020,2020.0,Nairobi,Civil,Kihoro v Attorney General,[2020] KESC 78 (KLR)               ,,"Before the Court is a Notice of Motion Application dated 4th March, 2020 and lodged on 11th March, 2020. The motion seeks review of refusal to grant certification to appeal to the Supreme Court by the Court of Appeal (Waki, Nambuye & Kiage JJA) in Civil Application No. SUP 2 of 2016. It is brought under Articles 163 (4)(b), (5) & (7), 2(5), 2(6), 22(3)(d) & 159(2)(d) of the Kenya Constitution 2010; Sections 3, 15, 16, 23, & 24 Supreme Court Act 2011 (now revoked), Rules 3, 24, 31 & 53 of the Supreme Court Rules 2012 (now revoked), Rule 4a (2) Supreme Court (Amendment) Rules 2016 (now revoked), Section 4 of the Fair Administrative Action Act 2015 and all the other enabling provisions of law.","In Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others PARA 2012. eKLR and Tom Martins Kibisu v. Republic PARA 2014. eKLR this Court laid down the distinct principle that, it had no jurisdiction to entertain appeals from final Judgements of the Court of Appeal, before the promulgation of the 2010 Constitution. Article 163 (4) (b) is forward-looking, and does not confer appellate jurisdiction upon the Supreme Court to entertain matters that had been finalized by the Court of Appeal before the commencement of the Constitution.In the matter before us, it is not in doubt that the final Judgment by the Court of Appeal was delivered on 17th March 1993, long before the promulgation of the current Constitution. There could never have been any other appeal from that Judgment, due to the fact that the Court of Appeal was then, the highest court in the land. When the Applicant herein moved to the High Court in Miscellaneous Application No.52 of 2009, he was simply but importantly seeking to enforce the final Judgment and Orders of the Court of Appeal. He was seeking to reap the fruits of that Judgment. Such an application cannot be said to have sustained the cause of action until November 2011, so as to confer jurisdiction on this Court. The Applicant is not appealing anything from such an enforcement action that he commenced before the High Court. How can he, when indeed the High Court granted his prayer for enforcement of the Court of Appeal Judgment? At any rate, even if such an appeal were possible, which it isn’t, this Court would not have appellate jurisdiction over a decision from the High Court.
12.
The intended appeal therefore offends the pronouncement of this Court in Samuel Macharia [Supra]. As such, it is clear that we have no jurisdiction to entertain this Application. This finding of necessity disposes of the other two issues. Consequently, we make the following Orders:
F. Orders
(i)
The Notice of Motion Application dated 4th March 2020, is hereby dismissed.
(ii)
No Orders as to Costs.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/78/eng@2020-09-23
Petition 45 of 2018,Kimani & 20 others (On behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney-General & 2 others (Petition 45 of 2018) [2020] KESC 9 (KLR) (Civ) (23 September 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",23 September 2020,2020.0,Nairobi,Civil,Kimani & 20 others (On behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney-General & 2 others ,[2020] KESC 9 (KLR)               ,,"The petitioners claimed to be poor landless people who had been relocated to Korogocho from various parts of Nairobi. They claimed ownership of the land in Korogocho contending that they were allocated the plots in the 1970s and 1990s and had put up various structures where they resided and had even developed the plots. It was alleged that in 1986, the then President visited the area and ordered roads to be constructed and electricity installed, which directive was implemented. The petitioners averred that they had severally petitioned the Government for titles and on November 22, 2000, in a public rally (baraza), the President directed the respondents together with the City Council of Nairobi to issue them with titles.That notwithstanding the President’s directive, the Provincial Administration started interfering with the petitioners’ possession of the plots. On May 11, 2001 they were informed of Government plan to pull down their houses and come up with new permanent houses. They argued that because of the promises made to them, which they believed to be true, they were entitled to be issued with the title deeds for the plots. It was on that basis that they moved to the High Court seeking various orders, including, a declaration that they were entitled to be registered as proprietors/owners of the plots on which their semi-permanent houses stood (suit land).
The High Court dismissed the petition holding, inter alia, that it did not disclose any cause of action, hence there was nothing for it to consider in relation to whether the petitioners were to be issued with title deeds for the suit land. Aggrieved by that decision, the petitioners appealed to the Court of Appeal. The Court of Appeal held that their claim was not supported by evidence, was not ascertainable and therefore could not be determined. It dismissed the appeal. Aggrieved, the petitioners appealed to the Supreme Court arguing, among others, that they had an automatic right of appeal under article 163(4)(a) of the Constitution as the matters involved touched on constitutional interpretation.","The Supreme Court in exercise of jurisdiction under article 163(4)(a) of the Constitution had to await and respect the superior courts’ exercise of their jurisdictions on the issue. The rationale being that the Supreme Court would only sit on appeal on matters which the other courts had already determined so that as an apex court, it benefitted from the reasoning of those other courts.In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle was to be that the chain of courts in the constitutional set-up, running up to the Court of Appeal, had the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law and only cardinal issues of law or of jurisprudential moment, deserved the further input of the Supreme Court.
Article 163(4)(a) of the Constitution had to be seen to be laying down the principle that not all intended appeals lay from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court.
The petitioners moved to the High Court under section 84 of the repealed Constitution seeking to enforce their rights under sections 71, 74, 75, 77, 81 and 82 of the repealed Constitution. At the core of the case was the question whether their right to life under section 71, and right to property under section 75 of the repealed Constitution had been infringed or threatened by the respondents. Consequently, a prima facie case touching on the interpretation and application of the Constitution was brought to the Supreme Court. Thus, the appeal had ably invoked the Supreme Court’s jurisdiction under article 163(4)(a) of the Constitution.
The invocation of the court’s jurisdiction was not however a panacea for a finding that a meritorious case had been made before the court. A finding that a court had jurisdiction to hear and determine a matter was a preliminary finding that the matter before the court was one for which the court was, by law, permitted to determine.
For a successful and competent appeal to the Supreme Court under article 163(4)(a) of the Constitution, it was not enough for a litigant to allege that his/her case before the superior courts involved interpretation and application of the Constitution. The Supreme Court’s appellate jurisdiction under article 163(4)(a) was a qualified one. The Supreme Court was not just another tier of appeal for constitutional matters. A litigant had to categorically outline the various constitutional issues of interpretation and application which were in issue from the High Court and which the Court of Appeal subsequently considered, and erred in its interpretation and application to warrant appeal to the Supreme Court. While the Supreme Court would find that its jurisdiction had been invoked under article 163(4)(a) of the Constitution, it had the discretion on what issue(s) to determine or whether the alleged issues legitimately fell within that jurisdiction.
The Supreme Court retained the discretion to determine what matter was appealable to it under article 163(4)(a) of the Constitution. Such a matter had to be founded on cogent issues of constitutional controversy, which issues were to be so determined by the Supreme Court itself. So that, while a litigant would file his/her appeal, it was the Supreme Court which had the sole discretion of determining whether the issues brought before it raised cogent constitutional controversies to warrant its input.
The appellate jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution was not just another level of appeal. Thus, even if the original suit in the High Court or lower court invoked specific constitutional provisions, that fact alone was not enough for one to invoke and sustain an appeal before the Supreme Court. A party had to steer his/her appeal in the direction of constitutional interpretation and application. A party needed to directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution. It could be while a matter invoked specific constitutional provisions, those provisions were never part of the court(s)’determination and the matter turned on purely factual and or statutory issues.
The following attributes were imperative for an appeal to the Supreme Court under article 163(4)(a) of the Constitution:
The jurisdiction revered judicial hierarchy and the constitutional issues raised on appeal before the Supreme Court had to have been first raised and determined by the High Court (trial court) in the first instance with a further determination on the same issues on appeal at the Court of Appeal.
The jurisdiction was discretionary in nature at the instance of the Supreme Court. It did not guarantee a blanket route to appeal. A party had to categorically state to the satisfaction of the Supreme Court and with precision those aspects/issues of his matter, which in his opinion fell for determination on appeal in the Supreme Court as of right. It was not enough for one to generally plead that his case involved issues of Constitution interpretation and application.
A mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involved little or nothing to do with the application or interpretation of the Constitution did not bring an appeal within the jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution.
Only cardinal issues of constitutional law or of jurisprudential moment, and legal issues founded on cogent constitutional controversies deserved the further input of the Supreme Court under article 163(4)(a) of the Constitution.
Challenges of findings or conclusions on matters of fact by the trial Court of competent jurisdiction after receiving, testing and evaluation of evidence did not bring up an appeal within the ambit of article 163(4)(a) of the Constitution.
In dealing with an appeal, the Supreme Court’s first hurdle was the delimiting of issues that legitimately fell for its determination. That was important since it was an appellate court with a very qualified jurisdiction. Not every issue that was before the superior courts was open for its determination in exercise of its appellate jurisdiction under article 163(4)(a) of the Constitution. Matters of fact that touched on evidence without any constitutional underpinning were not open for the Supreme Court’s review on appeal. The same was also true of matters that purely dealt with interpretation and application of statutory provisions.
As regards the issues framed by the petitioners for determination, save for the Supreme Court’s jurisdictional issue, no other issue lay for determination by the Supreme Court in exercise of its appellate jurisdiction under article 163(4)(a) of the Constitution.
Both the Court of Appeal and the High Court agreed that there was no evidence upon which the petitioners had laid their claim to the suit land. That decision was majorly an evidentiary matter. The Court of Appeal had observed that the appeal raised constitutional issues of the right to housing and it was ready to make a determination on the issue. The only hurdle was that there was no evidence by the petitioners to back their claim. On that basis, the appellate court downed its tools and upheld the High Court decision.
The Court of Appeal in making the conclusion that the petitioners’ claim was not ascertainable and therefore could not be determined, neither interpreted nor applied the Constitution. In no way did the Court of Appeal’s conclusion of lack of evidence take any constitutional trajectory that warranted the Supreme Court’s intervention. Some of the issues framed for determination by the petitioners touched on matters of fact and statutes. Some issues were being raised before the Supreme Court for the first time. The petitioners were under a duty to frame the issues they considered were of a constitutional nature which the Court of Appeal erred in its interpretation or application but they failed in that duty. No cogent issue of constitutional controversy arose and/or was in issue at the Court of Appeal that warranted the Supreme Court’s further input.
At the time of filing the matter before the High Court, the petitioners were not facing any eviction threat or order. Before determining whether any of the orders they sought warranted being granted, the petitioners had to first prove their entitlement and right to the property. As the superior courts found, no evidence was tendered hence the case was not proved. Consequently, the Supreme Court found no basis upon which to delve into the interrogation of the matter whether reliefs such as structural interdicts were available.
The petitioners did not marshal a satisfactory case before the Supreme Court for it to exercise its jurisdiction under article 163(4)(a) of the Constitution. The petition lacked merit.
Petition dismissed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/9/eng@2020-09-23
Civil Application 17 of 2020,"Temoi & another v Governor, Bungoma County & 3 others (Civil Application 17 of 2020) [2020] KESC 10 (KLR) (Civ) (23 September 2020) (Ruling)",Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",23 September 2020,2020.0,Nairobi,Civil,"Temoi & another v Governor, Bungoma County & 3 others",[2020] KESC 10 (KLR)               ,,"Upon perusing the Notice of Motion application by the Applicants dated 13th July 2020 and filed on 14th July 2020, which application is brought pursuant to the provisions of Section 3(d) & (e) of the Supreme Court Act, 2011, Rules 3(5), 15(2) and 38(1) of the Supreme Court Rules, 2020 in which the Applicants seek extension of time to file an appeal out time; and","Upon considering the written submissions by the Applicants dated 13th July 202o and filed on 14th July 2020 wherein the Applicants contend that the delay in filing an appeal to this Court was inadvertent, and was caused by the adverse effects posed by the Covid 19 pandemic, as well as the inability to timeously obtain legal counsel for representation on a pro bono basis and certified copies of types proceedings from the Court of Appeal; andThe 1st Respondent’s submissions dated 14th August 2020 wherein it is contended that the application was without merit, that the delay is inexcusably inordinate, and that the right of extension is not a right that the Applicants deserve, in the instance; and
4.
Having considered the application and the submissions filed by the Applicants and the 1st Respondent, by a unanimous decision of this Bench, we find that;
(a)
This Court has the jurisdiction to consider and allow an application for leave to extend time – see Anuar Loitiptip v. Independent Electoral & Boundaries Commission SC Petition (App.) No. 18 of 2018; [2018] eKLR as well as Section 21(3) of the Supreme Court Act and Rule 53 of the Supreme Court Rules, 2012;
(b)
That an applicant seeking extension of time must satisfy the principles set out in Hamida Yaroi Shek Nuri v. Faith Tumaini Kombe & 2 others SC Petition (App.) No. 38 of 2018; [2019] eKLR, Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; (2014) eKLR among other authorities on extension of time;
(c)
We thus find that the Applicants have no reasonable or cogent explanation and did not adduce sufficient reasons for the delay in filing the intended appeal as failure to obtain legal representation is not a sufficient ground for this Court to exercise its discretion in an application for leave to file an appeal out of time where no evidence is tendered in that regard. And whereas the covid pandemic initially affected the ability of parties to access this Court, there is no evidence in the present case that the Applicants were unable to access this Court or the Court of Appeal in good time to file their appeal.
(d)
Furthermore, the Applicants have not annexed to their application their intended Petition of Appeal or the grounds of appeal which they wish the Court to consider in their intended Petition of Appeal and to allow the proceedings before this Court to commence in accordance with Rules 38(2)(a) and 39(2) of the Supreme Court Rules, 2020 and as determined in Yusuf Gitau Abdallah v. Building Centre (K) Ltd Petition No. 27 of 2014; [2014] eKLR;
(e)
The Applicants have also not explicitly stated what constitutional provisions they intend to rely upon in bringing the intended Appeal before this Court as was pronounced in Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others Petition No. 12 of 2018; [2018] eKLR.
5.
In the circumstances, we now make ORDERS as follows;
(a)
The Notice of Motion application by the Applicants dated 13th July 2020 and filed on 14th July 2020 is hereby dismissed;
(b)
Each party shall bear its costs.
6.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/10/eng@2020-09-23
Civil Application 34 of 2019,Rose Jebor Kipngok v Kiplagat Kotut (Civil Application 34 of 2019) [2020] KESC 13 (KLR) (18 September 2020) (Order),Order,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",18 September 2020,2020.0,Nairobi,Civil,Rose Jebor Kipngok v Kiplagat Kotut,[2020] KESC 13 (KLR)               ,,"On 4th September 2020, this Court delivered a Ruling dismissing the Application dated 12th November, 2019 and affirming the Appellate Court’s decision delivered on 17th October, 2019, declining leave to appeal to this Court. In the said Ruling at the heading, we erroneously indicated that the Coram consisted of (Maraga, CJ & P; Mwilu, DCJ & V-P; Ibrahim, Wanjala & Lenaola, SCJJ) which was in accordance with the bench constituted on 6th March, 2020. This was an inadvertent error as per the amended bench constituted on 7th July, 2020, the Coram consisted of (Mwilu, DCJ & V-P, Ibrahim, Wanjala, Njoki & Lenaola, SCJJ).","On 4th September 2020, this Court delivered a Ruling dismissing the Application dated 12th November, 2019 and affirming the Appellate Court’s decision delivered on 17th October, 2019, declining leave to appeal to this Court. In the said Ruling at the heading, we erroneously indicated that the Coram consisted of (Maraga, CJ & P; Mwilu, DCJ & V-P; Ibrahim, Wanjala & Lenaola, SCJJ) which was in accordance with the bench constituted on 6th March, 2020. This was an inadvertent error as per the amended bench constituted on 7th July, 2020, the Coram consisted of (Mwilu, DCJ & V-P, Ibrahim, Wanjala, Njoki & Lenaola, SCJJ).Section 21(4) of the Supreme Court Act clothes this Court with general powers to correct any apparent errors in its Judgments, Rulings and/or Orders as follows:
General Powers.
21.
(1)
. . .
(2)
. . .
(3)
. . .
(4)
Within fourteen days of delivery of its judgment, ruling or order, the Court may, on its own motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order and such correction shall constitute part of the judgment, ruling or order of the Court.
3.
As a result, we hereby Order as follows:
(i)
The Coram is corrected by deleting “(Maraga, CJ & P; Mwilu DCJ & V-P; Ibrahim, Wanjala & Lenaola, SCJJ)” and inserting therein the Coram of “(Mwilu, DCJ & V-P; Ibrahim, Wanjala, Njoki & Lenaola, SCJJ)”.
4.
This Ruling is accordingly amended, and this Order shall constitute part of the Ruling of the Court.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/13/eng@2020-09-18
Petition 46 of 2019,FNH v Housing Finance Company of Kenya Limited & another (Petition 46 of 2019) [2020] KESC 21 (KLR) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu",4 September 2020,2020.0,Nairobi,Civil,FNH v Housing Finance Company of Kenya Limited & another,[2020] KESC 21 (KLR)               ,,"This is a Notice of Motion Application dated 23rd December 2019, and filed on the 23rd of January 2020, where the Applicant, the firm of Taib A. Taib seeks determination of the status of representation by counsel in a cause pending before this court. The proceedings at this stage, therefore, only concern the preliminary question of representation.The Applicant herein, FNH, was the registered proprietor of ‘the suit property’ L.R. No ****** - a residential house situated within Runda Estate Nairobi.
3.
On 23rd February 2003, the Applicant drafted and executed a Power of Attorney appointing Sharok Kher Mohamed Ali Hirji as his legal representative. in relation to the suit property, which power of attorney was filed with the Register of Powers of Attorney on the 17th of March 2003 as No. P/A 37723/1.","From a reading of the case above, it is apparent that the graveman of the matter is a dispute on representation.But before we can delve into the issue, at the very onset, it is important to ascertain if this court has the requisite jurisdiction to determine the question as to the legal representation and validity of the power of attorney of the parties before the court.
27.
The appellate jurisdiction of this Court is rightly captured in Article 163(4) of the Constitution of Kenya which states as follows:
“
(4)
Appeals shall lie from the Court of Appeal to the Supreme Court –
i.
As of right in any case involving the interpretation or application of this Constitution; and
ii.
In any other case in which the Supreme Court, or Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)
(5)
A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.”
28.
Apart from the foregoing constitutional and legal provisions, this Court has ceaselessly stipulated the boundaries of its jurisdiction under Article 163(4)(a) of the Constitution in several decisions, which decisions are still applicable. In the Lawrence Nduttu case, a two-Judge Bench of this Court (Tunoi and Wanjala SCJJ) set the guiding principles as follows:
28:
“The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4) (a).”
29.
Further, in the Hassan Joho Case this Court observed as follows:
37:
“In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this Court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the Superior Courts and has progressed through the normal appellate mechanism so as to reach this Court by way of an appeal, as contemplated under
Article 163(4)(a) of the Constitution…” [emphasis added].
30.
In this matter, a perusal of the record reveals that neither the High Court nor the Court of Appeal delved into the issues of representation. It is a novel issue that is coming before this court for the very first time and is yet to progress through the normal appellate mechanism, so as to reach this Court in proper form. In light of this and of the principles cited in the case law above, this court lacks the requisite jurisdiction to entertain this application.
Orders
1.
The application dated 23rd December 2019 is hereby dismissed;
2.
The Applicants shall bear the costs of this application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/21/eng@2020-09-04
Petition (Application) 36 of 2019,Gichuru v Package Insurance Brokers Ltd (Petition (Application) 36 of 2019) [2020] KESC 29 (KLR) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",4 September 2020,2020.0,Nairobi,Civil,Gichuru v Package Insurance Brokers Ltd,[2020] KESC 29 (KLR)               ,,"The Respondent filed an application dated 8th November 2019 on 13th November 2019, seeking for the orders of striking out the appeal here in with costs. The application is brought under Articles 163 (4) (a) of the Constitution Section 15(2) of the Supreme Court Act, 2011, Rule 33 of the Supreme Court Rules, 2012. It is supported by the affidavit of Salome Mwangi.The cause of action is stated to arise from termination of the Petitioners employment who was retained in permanent and pensionable contract by the Respondent. He was diagnosed with a spinal cord tumor in November 2013; Sought medical treatment in India but upon resuming work on 10th February 2014, his mobility had been impaired. He was directed not to report to work from 14th April 2014 till a time when his condition and mobility improved.The Respondent sought medical appraisal report from the Petitioner’s doctor. The doctor’s report recommended a further two months’ sick leave. From that report, the Petitioner was suspended from employment on 23rd June 2014 and was urged to hand over the Respondent’s property in his care and custody. He protested the suspension. On 1st August 2014 he was dismissed summarily for gross misconduct allegations.
6.
Aggrieved by the dismissal, the Petitioner filed a suit in the Employment and Labour Relations Court Case No. 1375 of 2014 Seeking for damages for wrongful termination based on discrimination and twelve months’ salary in damages and unpaid dues. After hearing, the court found the termination as unlawful and damages were awarded with pending dues as prayed. On appeal to the Court of Appeal, it was held there was no discrimination on the Petitioner. The twelve Months salary award was set aside. Award of one month’s salary in lieu of notice was upheld.
7.
Dissatisfied with the finding of the C0urt of Appeal, the Petitioner has appealed to this Court through an Appeal dated 2nd September, 2019 filed on even date.The appeal is brought under Articles Article 163(3)(b) (i), 163 (4) (a) of the Constitution of Kenya, 2010 and Section 15(2) of the Supreme Court Act, 2011, Rule 9 & 33 of the Supreme Court Rules, 2012. The Petitioner relies on provisions of Articles 27, 41, 54 and 259 of the Constitution of Kenya, 2010 and Sections 5 and 46 of the Employment Act.
8.
The grounds are that there was an error by the Court of Appeal in failing to analyse the evidence on record before reaching its decision on discrimination; by introducing new and extraneous facts that were not before the trial court in determining the issue of discrimination; in interpretation of Article 27(5) of the Constitution and in interfering with the discretion of the trial judge in respect of the award of twelve months’ salary for unlawful termination.
9.
The Respondent filed this instant application seeking the striking out of the appeal on grounds that it is not in the categories which an appeal can lie as of right under Article 163(4)(a) of the Constitution. Parties were directed to file and exchange submissions for determination by the Court.","We have considered the parties’ pleadings and submissions in the application. The issue for determination is;Whether the appeal can be struck out under Article 163(4a) of the Constitution.
14.
In order to ascertain whether the prayers sought in the application by the Respondent can issue, we have to examine the proceedings before courts below in light of Article 163(4a) invoked by the Petitioner as the supporting provision to find out whether the appeal is properly brought before this Court under Article 163(4)(a) of the Constitution.
15.
The claim filed before the trial court was brought under provisions of various Sections the Employment Act, Industrial Court Act and Industrial Court Rules. In paragraph 29 and 30 of the claim, it was averred that the Respondent’s actions contravened various Sections of the Employment Act and violated his fundamental rights provided for under Articles 27, 28, 41, 43, 47, 50 and 54 of the Constitution. This was through discrimination perpetrated against him through unlawful and unfair termination of employment.
16.
Both the trial court and the Court of Appeal framed 3 issues for determination. One of the issues in both courts as framed was whether the Petitioners right under Article 27 of the Constitution was violated by the Respondent. The trial court opined that the Respondent was at pains to delink the Petitioners dismissal from his illness in view of the letter dated 14th April 2014 advising the Petitioner not to go to work while sick. It viewed the letter to mean as long as the Petitioner was unwell and immobile, he could not go to work. It held there was discrimination of the Petitioner based on his health status contrary to Article 27 of the Constitution.
17.
The Court of Appeal on the other hand in addressing discrimination, cited Article 27 (4) of the Constitution and Section 5 (3)(a) of the Act in verbatim. It held that section 5(3)(a) was the one meant to give full realization of Article 27 of the Constitution as regards employment. Article 27(4) in respect of the Petitioner’s claim of discrimination provides for non-discrimination on grounds of health status and disability, while Section 5 (3)(a) of the Act provides for non-discrimination on grounds of disability and HIV status.
18.
After evaluating Section 5(3)(a) in light of the circumstances of the case, the Court of Appeal held that discrimination did not arise as it was only the Petitioner who was sick and his dismissal could not be weighed against other employees who were performing while he himself was unable to deliver. The illness affected Petitioners performance. There was no differential treatment of the Petitioner against the other employees.
19.
Article 163(4)(a) of the Constitution grants parties automatic right of appeal if an issue touching on application and interpretation of the Constitution was raised and addressed by the Superior courts below. It also can arise in cases where there was no specific Constitutional issue. In such an instance, a party seeking to rely on this provision should demonstrate a Constitutional trajectory in issues addressed as was held in the case of Gatirau Peter Munya vs Dickson Mwenda & 2 Others SC Applic. No. 5 of 2014 and Cordisons International (K) Limited v Chairman National Land Commission & 43 others [2020] eKLR, SC Petition No. 14 OF 2019
20.
We have considered several of our decisions on this provision. In the present case we note that the Petitioner invoked Article 27 of the Constitution in the Claim. The trial court considered the same in analysis and determination. Article 27 was thus present since the inception of the suit as we held in the case of Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others [2019] eKLR, SC Application No. 22 OF 2019.
21.
The Court of Appeal in its analysis, after finding that Article 27 of the Constitution had been re-enacted in a legislation specifically to address matters of discrimination of workers in employment in Section 5(3)(a) of the Employment Act, used the legislation itself to address the issue at hand than the Constitution, avoiding the Constitutional provision altogether.
22.
In Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2020] eKLR, SC Petition No. 21 of 2019, We considered instances where a contested constitutional provision was introduced in the Court of Appeal, and that the court in addressing the provision in passing, we held did not amounting to interpretation and application of the Constitution under Article 163(4)(a). On the contrary in this case the Constitutional provision was lost in the Court of Appeal and addressed through the Act of parliament enacted in furtherance of the Constitutional provision.
23.
In Gatirau Munya (Supra) we considered instances when jurisdiction arises under Article 163 (4) (a) when a provision of an Act of parliament is a normative derivative of a constitutional provision. Avoidance of interpretation and application of Article 27 of the Constitution by the Court of Appeal did not diminish its presence in the claim, since even though it dealt with Section 5(3)(a) of the Employment Act, this section was a normative derivative of Article 27 of the Constitution. It cannot thus be said that after enactment of the Act, Article 27 of the Constitution died and was buried in a way that it cannot be exhumed and revived again at a further appeal before this Court to find out whether its death and burial was proper or not by getting subsumed in section 5(3)(a) of the Employment Act.
24.
Further Contrary to the Respondent’s allegations, the reliance on Article 27 was not a mere reference on generality of a Constitutional provision disentitling the Petitioner to rely on Article 163(4)(a) of the Constitution as we held in Aviation and Allied Workers Union of Kenya v. Kenya Airway Ltd & 3 Others [2017] eKLR. We are also guided by our finding in the case of Okiya Omtata Okoiti vs The Central Bank of Kenya & others Applic. No 32 of 2018 that Article 27 of the Constitution was applied and interpreted in the superior courts below, and that before the trial court, discrimination emerged as one requiring Constitutional interpretation and application before this court on a further appeal. We find the appeal involves interpretation and application of the Constitution as required under Article 163(4)(a) of the Constitution and rightly before this Court.
25.
In light of the foregoing we make the following orders;
(a)
The Respondent’s application for striking out the appeal dated 8th November 2019 is hereby dismissed.
(b)
Costs be in the cause.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/29/eng@2020-09-04
Application 12 of 2019,Githiga & 4 others v Kiru Tea Factory Company Ltd (Application 12 of 2019) [2020] KESC 27 (KLR) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",4 September 2020,2020.0,Nairobi,Civil,Githiga & 4 others v Kiru Tea Factory Company Ltd,[2020] KESC 27 (KLR)               ,,"Because of the nature of the present application, it is important to set out, in extenso, the gist of the dispute now before us and thereafter determine each outstanding matter sequentially","We must from the onset state that the Petitioner’s appeal is a unique one. We say so because it is premised on both a concluded contempt application and ruling before the Court of Appeal as well as another pending and yet to be determined contempt application.20.
We must from the onset state that the Petitioner’s appeal is a unique one. We say so because it is premised on both a concluded contempt application and ruling before the Court of Appeal as well as another pending and yet to be determined contempt application.
21.
In effect while there is no judgment on the substantive appeal before the Court of Appeal, one contempt application has been determined, conviction meted out, sentence imposed and the Petitioners are in the place of convicted contemnors. They are awaiting their fate in another contempt application.
22.
In that context, does the Petition of appeal raise constitutional issues requiring our attention under Article 163(4)(a) of the Constitution? Our jurisdiction under the said Article has been explained and settled in Lawrence Nduttu, as well Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others SC Petition No. 2 “B” of 2014; [2014] eKLR among other authorities on the subject.
23.
We have often stated in that regard that a party invoking Article 163(4) must demonstrate that the issues raised on appeal must have been canvassed in the Superior Courts below, progressing through the normal appellate mechanism so as to reach this Court by way of an appeal. Alternatively, or in addition, the question of constitutional interpretation or application must have taken a constitutional trajectory in the Superior Courts’ reasoning in their determination of a contested issue or question.
24.
In the present instance, we have stated that the issues before us arise from contempt applications and a ruling of the Court of Appeal in that regard. This is a unique appeal as we have stated because by the conviction and sentence, the matter started and ended at the Court of Appeal. One of the questions we must therefore address at the hearing of the appeal is whether there is a right of appeal to this Court, upon conviction for contempt at the Court of Appeal. The question whether the Petitioners were granted access to justice under Article 48 of the Constitution and whether they were granted a fair hearing under Article 50 of the Constitution are issues that we must interrogate at the same time.
25.
The Petitioners have also raised other specific issues which fall within the purview of their submission that their appeal arises from issues that have taken a constitutional trajectory. These issues would in the larger context require interrogation. They are;
i)
Whether a Court presiding over contempt proceedings has a right to ignore deliberately the responses/defences placed before it by the cited contemnors.
ii)
Whether a Court hearing a contempt application can revive the original un-amended contempt of court application in chambers, prosecute and convict on the same upon striking out the amended contempt application.
iii)
Whether a Court in presiding over proceedings which have been heard fully on an amended pleading can upon striking out the amended pleading proceed suo moto to determine the original pleading without invitation and participation of either parties in the proceedings.
iv)
Whether a Court hearing a contempt of Court application can convict the alleged contemnors without affording then a hearing
v)
Whether a Court hearing a contempt of Court application can overlook a miscarriage of justice to convict for contempt.
26.
In our view, all the above issues raise concern as to the right to a fair hearing if they are found to be true. Therefore, the Appeal before us requires that we must find in favour of the Petitioners and proceed to hear parties on merit and settle the issues we have raised above. The Motion before us is one for dismissal in that event. Similarly, the Preliminary Objection dated 13th August 2019 on jurisdiction must be overruled.
27.
On costs, we shall exercise discretion and order that each party should bear its costs of the present application and the Preliminary Objection.
D. Disposition and Orders
28.
i)
The Notice of Motion dated 3rd May 2019 is hereby dismissed.
ii)
TheApplicant/Respondent’s Preliminary Objection dated 13th August 2019 is hereby overruled.
iii)
Each Party shall bear it costs.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/27/eng@2020-09-04
Application 12 of 2019,Githiga & 5 others v Kiru Tea Factory Company Ltd (Application 12 of 2019) [2020] KESC 22 (KLR) (Civ) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",4 September 2020,2020.0,Nairobi,Civil,Githiga & 5 others v Kiru Tea Factory Company Ltd,[2020] KESC 22 (KLR)               ,,"Before us are two applications; the first, filed by the Petitioners/Applicants, is dated 2nd December 2019. The specific prayers sought are that;This Honourable Court grants stay of further proceedings in Nyeri Court of Appeal Civil Application No.137 of 2017 (sitting at Nairobi) Kiru Tea Factory Company Limited v. Stephen Maina Gitonga & 13 Others pending the hearing and final determination of the Applicants’ appeal filed before this Court.
ii)
This Honourable Court grants stay of further proceedings, the hearing and prosecution of the Application dated 30th of May 2019 and as filed on the 31st May 2019 in Nyeri Court of Appeal Civil Application No.132 of 2017, Kiru Tea Factory Company Limited v. Stephen Maina Githiga & 32 Others pending the inter-parties hearing and final determination of Supreme Court Petition No.12 of 2019, Stephen Maina Githiga & Others v. Kiru Tea Factory Company Limited.
2.
The second is dated 20th December 2019 and is filed by the Respondent. The prayers in it are as follows:
i)
The following excerpts and or averments be and are hereby struck out, expunged and wholly obliterated from the record of the Supreme Court:
(a)
Ground (a) of the Amended Notice of Motion dated 3rd May 2019 and amended on the 2nd December, 2019, in particular Mr. Geoffery Chege Kirundi in the name of the Respondent herein”
(b)
Ground (s) of the Amended Motion, in particular “Mr. Geoffery Chege Kirundi masquerading as Kiru Tea Factory Company Limited has commenced further contempt of Court proceedings against among others the applicants herein.”
(c)
Paragraph 6 of the Further Supporting Affidavit of Mr. Stephen Maina Githiga sworn on the 2nd December, 2019 in particular “Mr Geoffery Chege Kirundi masquerading as Kiru Tea Factory Company Limited has commenced further contempt of court proceeding against among others the applicants herein”
(d)
Paragraph (7) of the Affidavit, in particular “Mr. Geoffery Kirundi invokes as his principal grounds the alleged breach of the court orders of 6th December, 2017”
(e)
Paragraph (11) of the Affidavit in particular “the Applicants are also apprehensive that considering the litigious nature of Mr. Kirundi and his inclination in instituting by himself or through proxy various court proceedings relating to similar issue, Mr. Kirundi may commence further proceedings relating to the issues relating before this court.”
(f)
Paragraph (6) of the Applicants submissions dated 5th December, 2019 (“the submissions”), in particular “through this second contempt application, Mr. Geoffery Chege Kirundi in the name of the Respondent herein sought to cite for further contempt the Applicants herein.”
(g)
Paragraph (19) of the Submission in particular “Indeed, the allowing of further contempt proceedings to proceed would create anarchy as the substram of the appeal would not have been preserved as the appeal deals with the ruling of 22nd February 2019 on alleged contempt proceedings may be commenced afresh in different form as has already been done by Geoffery Chege Kirundi in the name of the Respondent”.
(h)
Paragraph 22 of the Submission in particular “the person behind the contempt proceedings as instituted in the name of the Respondent is Mr. Geoffery Chege Kirundi.”
(i)
Paragraph 23 of the Submission in particular “through this further contempt threat Mr. Kirundi is deliberately positioning himself to disrupt the livelihoods of over 8,000 small scale tea farmers. Under the utilitarian principle, this court has a duty to grant such orders that would in the meantime, pending the hearing of the appeal serve the greater number of persons, in this case the over 8,000 tea growers as opposed to one further contempt prosecutor, Mr. Kirundi”
(j)
Paragraph 25 of the submissions in particular “Mr. Geoffery Chege Kirundi, who retired from the Board of Directors of the Respondent on the 22nd of November, 2019 by virtue of the lapse of his three (3) year term, has continually held sword of Court of Appeal impugned orders to pursue further contempt proceedings against the Applicants but in the name of the Respondent. Mr Kirundi stands to suffer no prejudice if the stay orders herein are granted to preserve the substram of the
Appeal during the pendency of the appeal.”
ii)
That an ancillary order be and is hereby issued permanently barring the Applicants, their Advocates or any other person from referring to proceedings by M/s Kiru Tea Factory Company Limited as proceedings by “Mr. Geoffery Chege Kirundi in the name of Kiru Tea Factory Limited.”
iii)
This Honourable Court be pleased to make any other Orders it deems fit in the circumstances
iv)
Costs of and incidental to this Application be provided for.
3.
We deem it imperative, initially, to deal with the second application as its determination would certainly impact on the earlier one.
B. Background
4.
The present two applications arise from contempt proceedings at the Court of Appeal filed by the Respondent, Kiru Tea Factory against all the Petitioners. In summary, the following is a chronology of events leading to the appeal before this Court:
(a)
Vide the application for contempt filed through the firm of M/s Kithinji Marete & Company Advocates, dated 13th December 2017, Kiru Tea Factory Company Limited commenced Nyeri Court of Appeal Civil Application No. 137 of 2017, Kiru Tea Factory Company Limited v. Stephen Maina Gitonga & 13 others, which application was amended vide a separate application dated 28th May 2018;
(b)
However, through the firm of M/s Njoroge Regeru & Company Advocates, Kiru Tea Factory filed an application dated 31st January 2018 seeking to withdraw the contempt proceedings for having been filed without the sanction of the Company. That application was dismissed by the Court of Appeal vide Ruling delivered on 11th May 2018. Consequently aggrieved, Kiru Tea Factory sought review vide application dated 29th May 2018;
(c)
The 2nd Applicant herein vide application dated 3rd of August 2018 sought to strike out the amended contempt application dated 28th May 2018 and all further affidavits that had been filed without leave, being Further Affidavit sworn on the 21st December 2017, 1st Further Affidavit sworn on 22nd January 2018, 2nd affidavit sworn on the 16th April 2018, 3rd Further Affidavit sworn on 3rd August 2018 and the 5th Further Affidavit sworn on 5th November 2018;
(d)
On the 7th August 2018, the Court of Appeal, having heard Counsel for all the parties, ordered that the applications dated 28th May 2018, 29th May 2018 and 3rd August 2018 be listed for hearing. They were then listed to be heard on 19th September 2018 but were adjourned to 15th November 2018 when they were heard;
(e)
After the hearing, the Court of Appeal, on the 22nd of February 2019, delivered rulings in the applications as hereunder;
i)
The application dated 29th of May 2018 was found partially meritorious and accordingly the Court reviewed the rulings and orders of the Court of Appeal made on 11th May 2018 making declarations and orders as appearing in the said ruling of 22nd February 2019;
ii)
The application dated 3rd August 2018 was also found meritorious and accordingly the amended contempt application dated 28th May 2018 was struck out together with all the further affidavits filed without leave; and
iii)
The Court of Appeal then made a determination on a third ruling in respect of a contempt application dated 13th December 2017, which application, it is claimed by the Petitioners, ceased to exist by virtue of the amended application on contempt dated 28th May 2018, and which application had not been heard on 7th August 2018 when the other three applications were heard. This position remains contested. By that ruling, the Court of Appeal found the Applicants herein in contempt of Court orders calling them for sentencing and mitigation on the 22nd of March 2019.
(f)
The Appellate Court in the third Ruling found that the 6th Applicant was the only one who had responded to the application dated 13th December 2017 via an affidavit sworn on 25th April 2018. According to the Applicants, in fact that affidavit was in response to an application dated 31st January 2018. The Applicants further claim that, as per the Court’s direction of 7th August 2019, they had responded to the amended application on contempt dated 28th May 2018;
(g)
The Applicants sought review of the decision vide an application dated 27th February 2019, canvassed on 7th March 2019, with a Ruling delivered on 28th March 2019. That Ruling dismissed the application for review on grounds that there was no new evidence that would be presented if the proceedings were to be re-opened;
(h)
In the ruling of 28th March 2019, the Court of Appeal, it is now claimed by the Petitioners, violated Articles 27(1), 50(1) and 159(2)(a) & (e) of the Constitution 2010 by hearing the Motion for contempt despite it not being in existence as it had been amended vide application dated 28th May 2018. The same had also not been, and had no responses on record thereby condemning the Petitioners unheard.","[10] Firstly, it is obvious to us that, reading the record before us, there is no love lost between Mr. Kirundi and the Petitioners. Furthermore, the Petitioners and the Respondent or some members or Directors of the Respondent, have become so engrossed in their bad blood that the substance of the Petition of Appeal has long been forgotten. This Court has now been forced to determine Motion after Motion without getting to the bottom of the appeal before it. We have in that regard had to determine a Preliminary Objection on jurisdiction; a Motion to strike out the Petition of appeal for the same reason; another Motion on which firm of advocates is properly on record for the Respondent; a Motion to amend the Motion on stay of proceedings before the Court of Appeal; the present Motion as well as the one below on stay of proceedings proper.While Parties are at liberty to duel on every issue under the earth, this Supreme Court has very limited jurisdiction and to spend time on all manner of applications is not the best way to determine appeals before it on their merits and expeditiously so.
13.
Reverting to the Motion now before us, we note that in his Affidavit sworn on 20th December 2019, Mr. Kirundi described himself as “the Chairman of the Kiru Tea Factory Company Limited”. He has maintained this position since the dispute relating to the control of the Kiru Tea Factory commenced. Mr. Stephen Maina Githiga in his Replying Affidavit sworn on 27th February 2020 on behalf of the Petitioners, on his part, deponed that he knows of his “own knowledge that there is exists no such position within Kiru Tea Factory Company Limited”. And that the only position known to him in that context is that of “Chairman of the Board of Directors of Kiru Tea Factory” which he, Stephen Maina Githiga, continues to hold. Mr. Githiga further claims that Mr. Kirundi is not even a Director of Kiru Tea Factory as his term as such Director expired on 22nd November 2019, a fact confirmed, he depones, by Korir J in High Court Petition No.442 of 2019. Our perusal of the Judgment in that case would show that Mr. Kirundi was only mentioned once when the learned Judge at paragraph 118 stated thus;
“
There is also the undisputed averment by the Respondents [KTDA & Kenya Tea Development Agency] that the three-year term of Geoffrey Chege Kirundi who swore the affidavit in support of KTFC’s [Kiru Tea Factory Company] application for joinder lapsed in November 2019. Without going into the ongoing disputes between KTFC and the Respondents [KTDA et al] pending before other Courts, it follows that there is no valid authority for dragging KTFC into these proceedings.”
14.
It has also been argued that Mr. Kirundi’s position as regards the contempt proceedings at the Court of Appeal is at the heart of the appeal before us and to strike out any parts of the Motion for Stay of proceedings will cripple the Petitioners case.
15.
On our part, having reflected on the matter, the present Motion must be looked at in its context and not in the context of other and unrelated proceedings. In the Motion for Stay of proceedings, the Petitioners have in a nutshell cast Mr. Kirundi as a masquerader, an unreasonably litigious person, and an anarchist but more importantly, that he has unreasonably used the sword of the contempt orders obtained against the Petitioners and may use the same over and over again to punish them. But who are the parties before us?
16.
In all pleadings before this Court, there is no party named Geoffery Chege Kirundi. Save for the Petitioners, the only other party is Kiru Tea Factory Company Limited, a legal entity sued in its own name. It is indeed true as claimed by the Petitioners that the Directorship and Management of Kiru Tea Factory Company is heavily contested and like Korir J in High Court Petition No.442 of 2019, we are not seized of the specifics of that dispute. Indeed, Korir J addressed Mr. Kirundi’s position in passing only and his finding is not before us in any substantive manner.
17.
Whether therefore Mr. Kirundi is using the name of the Respondent to further his own agenda, is a matter not presently before us but the Petitioners have nonetheless argued that the said issue is live and will form part of their case at the hearing of the appeal.
18.
Even if that were so, what we are confronted with, is a situation where one party, in seeking orders of stay of proceedings against a limited liability Company has, in over ten instances according to the Respondent, cast aspersions on an individual who is associated with it. The law on the subject is that following Salomon v. Salomon [1897] AC 78, our Courts have been consistent in holding that a limited liability company is separate from its members. Indeed, Majanja J in Valentine Opiyo and Anor v. Masline Odhiambo t/a Ellyams Enterprises High Court Civil Appeal No.2 of 2014, quoted with approval the holding that “[A Company] as a body corporate, is a persona jurisdica, with a separate identity in law, different from its shareholders, directors and agents unless there are factors warranting a lifting of the veil” (Quoting the Court of Appeal in Victor Mabachi and Anor v. Nurturn Bates Ltd [2013] eKLR).
19.
When can a Company’s veil be lifted? Only when there is evidence of “fraud or improper conduct but in all cases where the character of the company, or the nature of the persons who control it, is a relevant feature. In such a case, the court will go behind the mere status of the Company as a separate legal entity disinter from its shareholders …” – Halsbury’s Laws of England 4th Edition para.90 as quoted in Valentine Opiyo (supra).
20.
The above being the law, what should we make of the impugned parts of the Motion for stay of proceedings? It is obvious to us that the references to Mr. Kirundi to the extent that they are not directed at the Respondent per se are misguided. We are certain that, by striking out those paragraphs, the Petitioners, in arguing their appeal which is limited to the propriety or otherwise of the contempt proceedings as a constitutional question will not have been driven away from the seat of justice. By personalising a purely constitutional issue, they steered their case away from the safety of the Constitution as its defender into Mr. Kirundi’s personal turf which is not an issue before us. Their Petition of Appeal, we are certain, can stand without submissions being directed at the person of Mr. Kirundi but at the faction of the Respondent (perhaps led by Mr. Kirundi) with which they have issues with. Having so stated, should we strike out the whole Motion for Stay of proceedings?
21.
We shall here below address that Motion on its merits, but for the above reasons, the Motion dated 20th December 2019 is allowed in terms of Prayers (i) (a) – (j). As regards prayer (ii) seeking orders to permanently bar the Petitioners from ever using the impugned statements, we see no reason to grant it and will instead dismiss it. We shall here below address costs at the end of this Ruling.
E. Submissions On The Motion for Stay of Proceedings
22.
The above application is dated 2nd December 2019. The Petitioners/Applicants seek the following orders:
i)
… (spent)
ii)
… (spent)
iii)
This Honourable Court grants stay of further proceeding in Nyeri Court of Appeal Civil Application No.137 of 2017 (sitting at Nairobi) Kiru Tea Factory Company Limited v. Stephen Maina Gitonga & 13 Others pending the hearing and final determination of the Applicants’ appeal filed before this Court.
iv)
This Honourable Court grants stay of further proceedings, the hearing and prosecution of the Application dated 30th of May 2019 and as filed on the 31st May 2019 in Nyeri Court of Appeal Civil Application No.132 of 2017, Kiru Tea Factory Company Limited v. Stephen Maina Githiga & 32 Others pending the inter-parties hearing and final determination of Supreme Court Petition No.12 of 2019, Stephen Maina Githiga & Others v. Kiru Tea Factory Company Limited.
23.
We have, above, set out the background to the dispute but suffice it to say that, the Petitioners were convicted and sentenced for contempt by the Court of Appeal after a lengthy process involving inter alia the striking out of a certain prior contempt application (dated 28th May 2018).
24.
Upon their conviction on 22nd March 2019, the Petitioners sought a review of that decision but the same was dismissed prior to mitigation and sentence on 4th April 2019. Subsequently, a second contempt application was instituted by the Respondent for alleged breach of orders issued by the Court of Appeal on 6th December 2017, 20th December 2019 and 22nd February 2019. It is that second contempt application that has triggered the present Motion for stay of proceedings before the Court of Appeal pending determination of the appeal before us.
i. The Petitioners’/Applicants’ Submissions
25.
Relying on Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [2014] KLR, the Petitioners state that the proceedings before the Court of Appeal were highly irregular for reasons inter alia that the Court of Appeal cited non-parties to the said proceedings as contemnors thus raising issues of fair trial under Article 50 of the Constitution.
26.
Further, they submit that, if the second contempt proceedings are conducted, there is the risk that their appeal against the initial contempt proceedings would be rendered nugatory and in that regard rely on our decision in Michael Sistu Kamau v. DPP & 4 Others [2018] eKLR.
27.
Lastly, they rely on the public interest principle and the decision in Deynes Muriithi & 4 others v Law Society of Kenya & another Civil Application No. 12 of 2015; [2016] eKLR to argue that this Court, as the custodian of the Constitution, ought to forestall an injustice by granting orders of stay as prayed.
ii. The Respondent’s Submissions
28.
The first point taken by the Respondent is that we have no jurisdiction to entertain the Petition of Appeal as well as the present application because there are no constitutional issues arising from the appeal.
29.
Secondly, the Respondent has argued that the conduct of the Petitioners is that of contemptuous litigants undeserving of the discretion of this Court and they should not benefit from their illegal actions – citing Miguna Miguna v. DPP & 2 others [2018] eKLR.
30.
Thirdly, they have submitted that the Petitioners’ appeal is exceptionally frivolous, disparaging and derogatory and ought not to be allowed.
31.
Fourthly, on the nugatory principle, they urge that, since the appeal is limited to refusal by the Court of Appeal to review the decision on contempt, there is no constitutional question arising to be determined and therefore the appeal is a non-starter ab initio.
32.
Lastly, it is the Respondent’s case that there is no public element exhibited in the appeal but on the contrary, the Petitioners’ refusal to obey Court orders is against the public interest – citing the Indian decision in Civil Appeal No.1134 - 1135 of 2002 State of Uttaranchal v. Balwant Singh Chaufal & others.
F. Analysis And Determination Of The Motion For Stay Of Proceedings
33.
It is now settled that in Gatirau Peter Munya, this Court laid the principles for issuance of stay orders by this Court. Those principles have been applied in a long list of authorities including Board of Governors, Moi High School, Kabarak & another v. Malcolm Bell Petition Nos. 6 & 7 of 2013; [2013] eKLR. The principles are whether an appeal is arguable; whether denial of the order for stay will render an appeal, nugatory; and whether it is in the public interest to grant the order for stay.
34.
As stated above, we have in a separate ruling determined that we have the jurisdiction to hear the Petitioners’ appeal and have, in that ruling, stated that the controversy around conduct of contempt proceedings by the Court of Appeal will require this Court’s interrogation against constitutional principles. The Respondent’s submissions on jurisdiction in the present application are therefore overruled.
35.
We also note that, throughout the appeal proceedings before the Court of Appeal, the sword of conviction for contempt has continuously been pointed at the Petitioners. It has been a back and forth to the extent that the substantive appeal has been shelved and contempt proceedings have taken centre stage. After the first conviction and sentence (the subject of the appeal before us), the Respondents have instituted fresh contempt proceedings against the Petitioners and we think that the appeal may well be rendered nugatory if we do not address its merits before the second contempt proceedings are finalised.
36.
Lastly, we have no doubt that contempt proceedings are a matter of public interest more so where allegations are made that one party is misusing the same to get at another without due process. Contempt proceedings may lead to imprisonment and therefore, where allegations of breach of the right to fair hearing are raised, this Court ought to lend an ear to the complaining party.
37.
In a nutshell, we are satisfied that the Petitioners have made out a case for grant of stay orders as prayed.
38.
What of costs? Being a matter of discretion, parties shall bear their costs of the Motion for striking out as well as the one for stay of proceedings.
G. Disposition
39.
For the above reasons, the following are the final orders to be made:
a)
The Motion for striking out dated 20th December 2019 is hereby allowed in terms of Prayers (i)(a)–(j).
b)
The Motion dated 2nd December 2019 for stay of proceedings is allowed in the following specific terms:
i)
This Honourable Court grants stay of further proceedings in Nyeri Court of Appeal Civil Application No.137 of 2017 (sitting at Nairobi) Kiru Tea Factory Company Limited v. Stephen Maina Gitonga & 13 Others pending the hearing and final determination of the Applicants’ appeal filed before this Court.
ii)
This Honourable Court grants stay of further proceedings, the hearing and prosecution of the Application dated 30th of May 2019 and as filed on the 31st May 2019 in Nyeri Court of Appeal Civil Application No.132 of 2017, Kiru Tea Factory Company Limited v. Stephen Maina Githiga & 32 Others pending the inter-parties hearing and final determination of Supreme Court Petition No.12 of 2019, Stephen Maina Githiga & Others v. Kiru Tea Factory Company Limited.
c)
Each party will bear its costs of both applications.
40.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/22/eng@2020-09-04
Application 10 of 2020,Housing Finance Company of Kenya Limited v Muturi & another (Application 10 of 2020) [2020] KESC 20 (KLR) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu",4 September 2020,2020.0,Nairobi,Civil,Housing Finance Company of Kenya Limited v Muturi & another,[2020] KESC 20 (KLR)               ,,"Upon perusing the Notice of Motion dated and lodged on the 19th May 2020 by Housing Finance Company of Kenya Limited, pursuant to Article 163(3)(b)(i) of the Constitution of Kenya; Section 24 of the Supreme Court Act as read together with Rules 31 and 32 of the Supreme Court Rules 2020 and all other enabling provisions of law seeking stay of execution of the Judgment and Decree issued on the 17th of February 2017 in High Court Civil Case No 10 of 2010 and the Judgment and decree issued on the 3rd of April 2020 by the Court of Appeal in Civil Appeal no 153 of 2017; and","For this reason, we see no practical purpose to be served if we were to grant stay of execution of the Judgment and Orders of the Court of Appeal (Makhandia, Kiage,& Kantai JJA). For us to do so, there must be some prospect that the intended appeal is sustainable on the jurisdiction invoked, which is lacking for the Applicants. Having found so, we do not find it necessary to consider the prayer for stay of execution.It is apparent that this determination renders nugatory any consideration of the substantive appeal that is, Petition 7 of 2020. Consequently, we dismiss both the Application for stay of execution and Petition 7 of 2020 itself.
[10]
For reasons aforesaid, we make the following orders;
Orders:
11.
...
i.
The Notice of Motion dated 19th May 2019 is disallowed.
ii.
That Petition No. 7 of 2020 is hereby dismissed.
iii.
The Applicant shall bear the costs of the Application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/20/eng@2020-09-04
Application 32 of 2019,Khalid & 16 others v Attorney General & 2 others (Application 32 of 2019) [2020] KESC 30 (KLR) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",4 September 2020,2020.0,Nairobi,Civil,Khalid & 16 others v Attorney General & 2 others,[2020] KESC 30 (KLR)               ,,"The applicants’ Notice of Motion is dated and filed on 1st November 2019. They seek in the main orders for review of this court’s judgment delivered on 18th October 2019 in Petition No. 21 of 2017. It is filed pursuant to Articles 10(2c), 50(1), 159(2), 163(4a & 7) and 259 of the Constitution, Sections 3 and 21 of the Supreme Court Act, 2011, Rules 3 (2), 4, 5 and 20(4) the Supreme Court Rules, 2012. The application is supported by the sworn affidavit of Suyianka Lempaa, counsel for the applicants.","We have considered the application and the applicants’ submissions. The only issue for determination is;Whether the order s of review sought can issue in this case.
15.
This Court has previously pronounced itself on the jurisdiction to review its decisions in the Outa case (Supra) where it stated the principles on review of a court’s own decisions when;
(i)
the Judgment, Ruling, or Order, is obtained, by fraud or deceit;
(ii)
the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
(iii)
the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;
(iv)
the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision’.
16.
This decision was arrived at after review of various Supreme Court decisions from different countries. The salient points were that the power of review is exercised sparingly because a trial has several implications once a judgment is delivered; litigation must come to an end; there is need for finality in court decisions; the Court is functus officio after delivery of decision sought to be reviewed; and that review should not substantially alter the decision sought to be reviewed. The review window is to be exercised sparing and only deserving cases have to be allowed. See Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR, SC Application 8 of 2017.
17.
In the words of the Nigerian Supreme Court in the case of Citec International Estate Ltd. & Others v. Francis & Others (2014) LPELR-22314 (SC); that was cited in the Outa case,
“
An application for review, is not meant to afford the losing party, an opportunity to re-litigate or re-open a matter merely because such party is unhappy with the outcome…”
18.
During the hearing of the appeal, each party present submitted before the Court on the salient points of their respective cases and judgment was reserved to be delivered on notice. After Ojwang SCJ was suspended, the directions taken afforded the parties liberty on the way forward. The applicants sought for re-hearing of the appeal de novo as is the practice concerning part-heard trials in this country. This practice is based on Section 200 of the Criminal Procedure Code (CPC) when dealing with criminal trials, the origin of the matter herein being anticipated criminal trial.
19.
Under the de novo principle, once a judicial officer trying a matter ceases to exercise jurisdiction over a matter during pendency of trial, through transfer or other circumstances, his successor in jurisdiction gives the parties right to elect how to proceed. Either to proceed from where the hearing had reached or start de novo.
20.
A Judicial officer who hears the case is the one preferred to decide on it, unless parties elect otherwise, so that the accused is not prejudiced by having a successor in jurisdiction, who never had the opportunity to appreciate the evidence of witnesses by observing their demeanor, credibility, emotions and the like, deciding based on record, where such aspects of evidence may not be recorded in a detailed manner as required under section 199 CPC. See Indian Supreme Court case of Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal, (2011) 9 SCC 638.In this case, de novo hearing was viewed as one of the cardinal principles of Criminal trials guarding the rights of an accused person so that his case should be decided by the judicial officer who heard it.
21.
In Abdi Adan Mohamed v Republic [2017] eKLR, the Court of Appeal opined that Section 200 entrenches the accused person’s rights to a fair trial as provided for today under Article 50(1) of the Constitution, and it applies to the High Court also in addition to Magistrates courts.
22.
Another principle in the de novo hearing is that it should not be taken as an opportunity to fill in gaps noted during the hearing by bringing a new set of evidence for the repeat trial. This is because a de novo hearing is a continuation of a trial and not a second trial. This was held in Indian Supreme Court case of Ajay Kumar Ghoshal etc. Vs. State of Bihar & ANR. [Criminal Appeal Nos. 119-122 Of 2017
“
A 'de novo trial' or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice.
23.
Also, in Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi) (2012) 9 SCC 408, it was held,
“
A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice.”
24.
The applicants fault this Court for rendering its judgment after return of Ojwang SCJ without setting aside the consent orders for de novo hearing the parties had recorded which allowed them to file a supplementary record to include in the Courts record the Magistrates courts record. We note that during hearing of the appeal before the five judge bench, the applicant’s counsel was specifically asked why he had not availed the Magistrates Court record despite orders from the Registrar directing that and his reasons was that the court file was not available
25.
The applicants’ complaint against the Court’s decision is that it turned on the very same documents they intended to avail through a supplementary Record. They aver that if they had been allowed to avail them as per the consent order, the Court would have been afforded an opportunity to consider their contents and maybe arrive at a different decision. This line of argument we understand the Applicants to mean the supplementary record was intended to mend a crucial gap they noted during the hearing to be a likely tipping point of the case if it were to be decided on the strength of the concluded hearing awaiting judgement.
26.
Introduction of new evidence after hearing is concluded is against the principles of de novo hearing whether it is ordered in review or in revision jurisdiction of a court. It mutes the trial continuation intention signaling a second trial. We are alive to the fact that in some instances additional evidence may be tendered but in very exceptional circumstances. We have to make it clear that we are, in this case, addressing a plea for de novo hearing after all parties have been heard and closed their case awaiting judgement, and after entry of judgment as opposed to when a hearing is ongoing before closure of defence case.
27.
This is because unless hearing is concluded and judgment reserved, new evidence can be availed in course of a criminal trial, as long as the defence is afforded time to defend their case as we stated in Hussein Khalid& 16 Others vs The Attorney General & 2 Others, SC Petition 21 of 2018;
“
(92)
…the 2nd and 3rd Respondents are not prevented from continuing investigations or even receiving new evidence once the accused has been charged and in the course of trial. The duty of the prosecutor is to bring the new information and evidence to the attention of the accused and for the court to give the accused the opportunity to interrogate the new evidence and adequate time to prepare his defence (See George Taitumu v Chief Magistrates Court, Kibera & 2 others [2014] eKLR).”
28.
Our jurisprudence resonates with this holding. The Court of Appeal in the case of Kiplagat Kotut v Rose Jebor Kipng’ok [2018] eKLR was asked to review its judgement where there occurred variance between the benched judges in the Coram and the judges signing the final judgement. In ordering rehearing the appeal afresh, it was observed that there was need to render substantial justice even though the error was inadvertence and could have been corrected easily by just having the right judges sign the judgment since they were all based in the same station. We just upheld this decision in Supreme Court Application No. 34 of 2019, Rose Jebor Kipng’ok vs Kiplagat Kotut.
29.
This was held to be one of the exceptional circumstances when a review power can be exercised in the residual jurisdiction of the court. This case is however, distinguishable from the one we are dealing with because one of the judges signing the judgment was the same, who with others heard the appeal, only that parties had agreed that the concluded hearing to be set aside when the status of the initial bench changed temporarily.
30.
Turning to the legal status of the consent as recorded in light of restoration of Ojwang SCJ to his office, we note that the jurisdictional basis of the consent as earlier stated was Section 200 of the CPC which seeks to secure the rights of parties in a trial once a Judicial Officer hearing a case ceases to exercise jurisdiction over the matter. Even though it is a Criminal Law principle it has been applied across the board in most of the hearings in furtherance of the constitutional right of fair hearing.
31.
Upon return of Ojwang SCJ to the original bench after he was cleared, his jurisdiction in the appeal was restored as before with lifting of suspension. He was the very same judge who sat in the hearing of the appeal, the very same judge who participated in the writing of the judgement, noting judgment had been reserved for delivery on notice. This meant that the notice would be issued once the bench which heard the matter was ready to deliver its judgment.
32.
His return to the bench, by operation of law under Section 200 CPC had the effect of nullifying/voiding the consent of the parties so entered. This is because his return signaled restoration of the status existing prior to the consent entered by the parties, meaning judgment would be delivered as earlier directed. The consent therefore crumbled and stood vacated by operation of law even without further order vacating it.
33.
This is buttressed by holding in the case of Nitinbhai Saevatilal (supra) where it was held in respect of parties’ consent affecting court’s jurisdiction;
“
It is well settled that no amount of consent by the parties can confer jurisdiction where there exists none, on a Court of law nor can they divest a Court of jurisdiction which it possesses under the law.”
34.
For these reasons we find that this application lacks merit and we make the following orders;
(a)
The Applicants’ application dated 1st November 2019 is hereby dismissed.
(b)
There is no order as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/30/eng@2020-09-04
Application 34 of 2019,Kipngok v Kotut (Application 34 of 2019) [2020] KESC 26 (KLR) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",4 September 2020,2020.0,Nairobi,Civil,Kipngok v Kotut,[2020] KESC 26 (KLR)               ,,"The appellants were arrested on 14th May 2013 for participating in demonstrations outside parliament gates dubbed ‘occupy parliament’. The protest was against Members of Parliament’s actions meant to scrap the Salaries and Remuneration Commission (SRC) to facilitate inflation of their salaries.The procession started peacefully at the Uhuru Parks’ Freedom Corner with police escort, culminating to staging protests outside Parliament gates. They had with them pigs painted names of some members of Parliament and corruption of the initials of MP to ‘MPigs’.
6.
They were detained in the Parliament Police Station until 7 pm; informed of the reasons for arrest and possible charges to be preferred against them; released on police bond and were required to return on 17th May 2013 to the Police Station. On 20th May 2013, they were required to report at the Chief Magistrate’s Court in Milimani for arraignment.
7.
They requested for particulars to be availed before arraignment before the magistrate. They were each given a charge sheet containing three offences. According to them, the charges lacked sufficient detail to enable them to plead. They therefore objected to plea taking and demanded that the same awaits supply of evidence and better particulars. The court, however, overruled the objection and ordered them to take plea. They filed a Constitutional appeal against the ruling of the Magistrate Court in Nairobi High Court Petition No. 324 of 2013. In their grounds of appeal, they challenged the manner of their arrest, detention, charge, arraignment and plea taking and the charge as unconstitutional.
8.
The petition was dismissed as unmerited by Lenaola J (as he then was). They appealed to the Court of Appeal in Civil Appeal No. 1 of 2015, on grounds of improper exercise of discretion, ignoring and or misapprehending the evidence on record, concluding that the trial had not commenced and failing to determine their rights under Article 24 of the Constitution. The Court of Appeal similarly dismissed the appeal as unmerited.
9
In the directions before the Deputy Registrar of this Court, parties were directed to file and exchange submissions. The applicants complied but none of the respondents has complied. On 12th August 2020 the 1st Respondent’s counsel gave an undertaking to file their submissions by 17th August, 2020 which was not honoured. The application thus proceeds as unopposed.","We have considered the application and the applicants’ submissions. The only issue for determination is;Whether the order s of review sought can issue in this case.
15.
This Court has previously pronounced itself on the jurisdiction to review its decisions in the Outa case (Supra) where it stated the principles on review of a court’s own decisions when;
(i)
the Judgment, Ruling, or Order, is obtained, by fraud or deceit;
(ii)
the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
(iii)
the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;
(iv)
the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision’.
16.
This decision was arrived at after review of various Supreme Court decisions from different countries. The salient points were that the power of review is exercised sparingly because a trial has several implications once a judgment is delivered; litigation must come to an end; there is need for finality in court decisions; the Court is functus officio after delivery of decision sought to be reviewed; and that review should not substantially alter the decision sought to be reviewed. The review window is to be exercised sparing and only deserving cases have to be allowed. See Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR, SC Application 8 of 2017.
17.
In the words of the Nigerian Supreme Court in the case of Citec International Estate Ltd. & Others v. Francis & Others (2014) LPELR-22314 (SC); that was cited in the Outa case,
“
An application for review, is not meant to afford the losing party, an opportunity to re-litigate or re-open a matter merely because such party is unhappy with the outcome…”
18.
During the hearing of the appeal, each party present submitted before the Court on the salient points of their respective cases and judgment was reserved to be delivered on notice. After Ojwang SCJ was suspended, the directions taken afforded the parties liberty on the way forward. The applicants sought for re-hearing of the appeal de novo as is the practice concerning part-heard trials in this country. This practice is based on Section 200 of the Criminal Procedure Code (CPC) when dealing with criminal trials, the origin of the matter herein being anticipated criminal trial.
19.
Under the de novo principle, once a judicial officer trying a matter ceases to exercise jurisdiction over a matter during pendency of trial, through transfer or other circumstances, his successor in jurisdiction gives the parties right to elect how to proceed. Either to proceed from where the hearing had reached or start de novo.
20.
A Judicial officer who hears the case is the one preferred to decide on it, unless parties elect otherwise, so that the accused is not prejudiced by having a successor in jurisdiction, who never had the opportunity to appreciate the evidence of witnesses by observing their demeanor, credibility, emotions and the like, deciding based on record, where such aspects of evidence may not be recorded in a detailed manner as required under section 199 CPC. See Indian Supreme Court case of Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal, (2011) 9 SCC 638.In this case, de novo hearing was viewed as one of the cardinal principles of Criminal trials guarding the rights of an accused person so that his case should be decided by the judicial officer who heard it.
21.
In Abdi Adan Mohamed v Republic [2017] eKLR, the Court of Appeal opined that Section 200 entrenches the accused person’s rights to a fair trial as provided for today under Article 50(1) of the Constitution, and it applies to the High Court also in addition to Magistrates courts.
22.
Another principle in the de novo hearing is that it should not be taken as an opportunity to fill in gaps noted during the hearing by bringing a new set of evidence for the repeat trial. This is because a de novo hearing is a continuation of a trial and not a second trial. This was held in Indian Supreme Court case of Ajay Kumar Ghoshal etc. Vs. State of Bihar & ANR. [Criminal Appeal Nos. 119-122 Of 2017
“
A 'de novo trial' or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice.
23.
Also, in Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi) (2012) 9 SCC 408, it was held,
“
A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice.”
24.
The applicants fault this Court for rendering its judgment after return of Ojwang SCJ without setting aside the consent orders for de novo hearing the parties had recorded which allowed them to file a supplementary record to include in the Courts record the Magistrates courts record. We note that during hearing of the appeal before the five judge bench, the applicant’s counsel was specifically asked why he had not availed the Magistrates Court record despite orders from the Registrar directing that and his reasons was that the court file was not available
25.
The applicants’ complaint against the Court’s decision is that it turned on the very same documents they intended to avail through a supplementary Record. They aver that if they had been allowed to avail them as per the consent order, the Court would have been afforded an opportunity to consider their contents and maybe arrive at a different decision. This line of argument we understand the Applicants to mean the supplementary record was intended to mend a crucial gap they noted during the hearing to be a likely tipping point of the case if it were to be decided on the strength of the concluded hearing awaiting judgement.
26.
Introduction of new evidence after hearing is concluded is against the principles of de novo hearing whether it is ordered in review or in revision jurisdiction of a court. It mutes the trial continuation intention signaling a second trial. We are alive to the fact that in some instances additional evidence may be tendered but in very exceptional circumstances. We have to make it clear that we are, in this case, addressing a plea for de novo hearing after all parties have been heard and closed their case awaiting judgement, and after entry of judgment as opposed to when a hearing is ongoing before closure of defence case.
27.
This is because unless hearing is concluded and judgment reserved, new evidence can be availed in course of a criminal trial, as long as the defence is afforded time to defend their case as we stated in Hussein Khalid& 16 Others vs The Attorney General & 2 Others, SC Petition 21 of 2018;
“
(92)
…the 2nd and 3rd Respondents are not prevented from continuing investigations or even receiving new evidence once the accused has been charged and in the course of trial. The duty of the prosecutor is to bring the new information and evidence to the attention of the accused and for the court to give the accused the opportunity to interrogate the new evidence and adequate time to prepare his defence (See George Taitumu v Chief Magistrates Court, Kibera & 2 others [2014] eKLR).”
28.
Our jurisprudence resonates with this holding. The Court of Appeal in the case of Kiplagat Kotut v Rose Jebor Kipng’ok [2018] eKLR was asked to review its judgement where there occurred variance between the benched judges in the Coram and the judges signing the final judgement. In ordering rehearing the appeal afresh, it was observed that there was need to render substantial justice even though the error was inadvertence and could have been corrected easily by just having the right judges sign the judgment since they were all based in the same station. We just upheld this decision in Supreme Court Application No. 34 of 2019, Rose Jebor Kipng’ok vs Kiplagat Kotut.
29.
This was held to be one of the exceptional circumstances when a review power can be exercised in the residual jurisdiction of the court. This case is however, distinguishable from the one we are dealing with because one of the judges signing the judgment was the same, who with others heard the appeal, only that parties had agreed that the concluded hearing to be set aside when the status of the initial bench changed temporarily.
30.
Turning to the legal status of the consent as recorded in light of restoration of Ojwang SCJ to his office, we note that the jurisdictional basis of the consent as earlier stated was Section 200 of the CPC which seeks to secure the rights of parties in a trial once a Judicial Officer hearing a case ceases to exercise jurisdiction over the matter. Even though it is a Criminal Law principle it has been applied across the board in most of the hearings in furtherance of the constitutional right of fair hearing.
31.
Upon return of Ojwang SCJ to the original bench after he was cleared, his jurisdiction in the appeal was restored as before with lifting of suspension. He was the very same judge who sat in the hearing of the appeal, the very same judge who participated in the writing of the judgement, noting judgment had been reserved for delivery on notice. This meant that the notice would be issued once the bench which heard the matter was ready to deliver its judgment.
32.
His return to the bench, by operation of law under Section 200 CPC had the effect of nullifying/voiding the consent of the parties so entered. This is because his return signaled restoration of the status existing prior to the consent entered by the parties, meaning judgment would be delivered as earlier directed. The consent therefore crumbled and stood vacated by operation of law even without further order vacating it.
33.
This is buttressed by holding in the case of Nitinbhai Saevatilal (supra) where it was held in respect of parties’ consent affecting court’s jurisdiction;
“
It is well settled that no amount of consent by the parties can confer jurisdiction where there exists none, on a Court of law nor can they divest a Court of jurisdiction which it possesses under the law.”
34.
For these reasons we find that this application lacks merit and we make the following orders;
(a)
The Applicants’ application dated 1st November 2019 is hereby dismissed.
(b)
There is no order as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/26/eng@2020-09-04
Application 24 of 2019,Langata Development Co Ltd v Dames & another (Application 24 of 2019) [2020] KESC 31 (KLR) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",17 April 2024,2020.0,Nairobi,Civil,Langata Development Co Ltd v Dames & another,[2020] KESC 31 (KLR)               ,,"Upon perusing the Notice of Motion dated 31st July 2019 by Langáta Development Company Limited pursuant to articles 163(4)(b), 159, and 40 of the Constitution of Kenya, 2010. Section 15 of the Supreme Court Act, 2011, regulation 24 26 and 53 of the Supreme Court Regulations, 2012, where they seek leave to have the Notice of Appeal lodged be deemed to have been lodged within time, as well as, certification as a matter of general public importance in respect of an anticipated appeal arising from the judgment of the Court of Appeal delivered on the 26th of February 2019; and","Upon considering the Respondent’s Grounds of Opposition and their Replying Affidavits filed on the 3rd of March 2019 together with written submissions, where they argue that the Supreme Court does not have jurisdiction to review the decision of the Court of Appeal; that there is no Notice of Appeal on record and in the absence of one, the Application before the Court is incompetent, incurably defective and ought to be struck out; that the issues in the intended appeal do not transcend the private interest of the Applicant who allegedly illegally grabbed the Respondents land, and that third parties are at liberty to purchase their respective plots form the estate of the Respondent on a willing seller-willing buyer basis; andHaving considered the Application, and noting that the Applicant has not satisfactorily explained the inordinate delay to warrant exercise of this Court’s discretion to enlarge time, we do decline to allow the application for leave to file a Notice of Appeal.
6.
Having reached this conclusion then, the application for certification has no legs to stand on and we do not find it necessary to consider it.
7.
For reasons aforesaid, we now make the following orders:
i.
The Notice of Motion dated 31st July 2019 is disallowed.
ii.
The Applicant shall bear the costs of the application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/31/eng@2020-09-04
Petition 15 of 2019,"Njenga v Cabinet Secretary, Ministry of Information Communication and Technology & 8 others (Petition 15 of 2019) [2020] KESC 25 (KLR) (4 September 2020) (Ruling)",Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu",4 September 2020,2020.0,Nairobi,Civil,"Njenga v Cabinet Secretary, Ministry of Information Communication and Technology & 8 others",[2020] KESC 25 (KLR)               ,,"The genesis of this matter is a Petition No. 203 of 2016 filed by Appellant at the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi, where he sought several declarations that; actions of the respondent were in violation of Articles 10 and 27 of the Constitution of Kenya; the actions of the respondents to be in violation of Section 6B(10)(c) of the Kenya Information and Communication Act; Gazette Notice No. 1267 dated 27th February and published on 26th February, 2016 to be invalid and an order of certiorari be issued to quash the said notice; Gazette Notice No. 3152 dated 29th April, and published on 4th May 2016 to be invalid and an order of certiorari to be issued to quash it; an order of mandamus be issued directing the respondents to comply with the gender requirements and ensure that at least 4 out of the 12 appointees to the Board of the Communications Authority of Kenya were of opposite gender; that costs be granted and the court be at liberty to grant any orders or relief as may be just and expedient.","It is trite law that a jurisdiction challenge whenever raised has to be determined in limine as it goes to the core of the case for where a court finds that it has no jurisdiction, it cannot make a further step.In the present matter, the Appellant urges that this appeal is premised on Article 163(4) (a) of the Constitution and raises issues that revolve around its interpretation and application. Particularly, he urges that this Court should be persuaded and adopt the South African Constitutional Court jurisprudence cited above that constitutional matters must include disputes as to whether any law or conduct is inconsistent with the constitution as well as issues concerning the status, powers and functions of an organ state.
23.
Conversely, the 2nd to 9th Respondents argue that the present case does not meet the jurisdiction threshold of this court, and cannot be entertained.
24.
This Court has had the occasion to define the delineations of its jurisdiction under Article 163(4)(a) of the Constitution in a number of its decisions which decisions are still applicable. In Samuel Kamau Macharia and Another v. Kenya Commercial Bank and 2 Others, [2012] eKLR; Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd & Another [2012] eKLR; Peter Oduor Ngoge v. Francis Ole Kaparo & 5 Others [2012] eKLR; Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [2014] eKLR;
Evans Odhiambo Kidero & 4 Others v. Ferdinand Ndung’u Waititu & 4 Others [2014] eKLR; Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others [2013] eKLR (Joho) among others it has been our position that in order to determine whether this Appeal is proper before us therefore, we must confirm that the issues of Constitutional interpretation and application being raised before us have risen through the normal appellate mechanism so as to reach us.
25.
Further that, under Article 163(4)(a), a matter is not sustainable unless it is demonstrated that it raises cogent issues of constitutional controversy. The Appellant must be faulting the Court of Appeal’s interpretation or application of the Constitution that informed the impugned Judgment. General references to Constitutional Provisions are not enough to bring an appeal within the ambit of Article 164 (3) (a), if such provisions were not a basis of contestation at the Appellate Court.
26.
In the present appeal, it is difficult to see how the matter meets the threshold for admission under Article 163(4)(a) of the Constitution. While the case had its genesis at the High Court constitutional division, the Appellant did not seek appeal against the pronouncement of the court on the issues raised but instead sought review of the decision of that court. It was the decision to decline the application for review that was subject matter before the two subsequent superior courts, which decision aggrieved the appellant who then sought further redress at this Court. At no point did the Appellant invoke the two superior courts appellate jurisdiction. Further, in coming to their decisions, the two courts did not defer to the interpretation and application of the Constitution.
27.
In that light, to allow the Appellant ignore the normal hierarchy of courts in the determination of issues would amount to abuse of the process of Court. We consequently lack jurisdiction to entertain this appeal.
28.
As to costs, this Court has previously settled the law on award of costs, that costs follow the event, and that, a Judge has the discretion in awarding costs. This was the decision in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition No. 4 of 2012; [2014] eKLR. We note that in this matter, both the trial court, and appellant court accepted that the Appellant was motivated by public interest in moving the courts. In that light, they ordered that parties ought to bear their own costs. We are however disinclined to do the same. In the matter of Okiya Omtatah Okoiti v Central Bank of Kenya & 7 others, SC Application No. 32 of 2018; [2019] eKLR
“
[Paragraph 48], this Court stated as follows:
“We find it necessary to address issue of costs. While we agree with the Applicant that where a private citizen sues a government entity in a matter of great constitutional moment or of great public importance, the Applicant should, as a general rule, not be condemned to pay costs, we note however that all Respondents have expended their finances in defending this Application. The Application was in any event never certified as one of public interest to attract the sympathy of the Court as a matter of general public importance. The Applicant, by instituting proceedings in a process which is basically about the tender for printing of new currencies, ought to have anticipated the consequences of his actions including costs. We, in the event, order that the Applicant should bear the costs of all Respondents.”
29.
We make a similar finding in this matter regarding costs, in view of the fact that this matter was not certified as being one one of public interest, sufficient to attract the sympathy of the Court as a matter of general public importance, and reiterate that the Applicant, when instituting proceedings, ought to have anticipated the consequences of his actions including costs.
5.Orders
30.
Consequent upon our findings above, the final orders are that:
Preliminary Objection by the Respondents dated 19th June, 2019 be and is hereby upheld.
1.
The Petition of Appeal dated 18th of April, 2019 be and is hereby dismissed.
2.
The costs of all Respondents shall be borne by the Applicant.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/25/eng@2020-09-04
Civil Application 14 of 2020,Olotch v Pan Africa Insurance Co Limited (Civil Application 14 of 2020) [2020] KESC 16 (KLR) (Civ) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",4 September 2020,2020.0,Nairobi,Civil,Olotch v Pan Africa Insurance Co Limited,[2020] KESC 16 (KLR)               ,,"Upon perusing the Notice of Motion by the Applicant dated 29th June 2020 and filed on 30th June 2020, which application is brought pursuant to the provisions of Section 23(2)(b) of the Supreme Court Act, 2012 and Rules 15(2) and 31 of the Supreme Court Rules, 2020 and in which the Applicant seeks enlargement of time to file an application for review of the Ruling of the Court of Appeal (Ouko (P), Koome & Murgor, JJA) in Civil Application No. SUPP 15 of 2019 dated 22nd May 2020; and","Upon considering the written submissions on record for the Applicant and the Respondent dated 29th June 2020 and 14th July 2020, respectively, wherein the Applicant contends that the delay in filing the application for review to this Court was inadvertent, and was caused by the adverse effects posed by the Covid 19 pandemic, including restrictions on travel imposed by the Government and coupled with the challenges in accessing reliable internet; and The Respondent in opposing the application submits that the explanation advanced by the Applicant is not plausible; that the reasons for the delay are not satisfactory, and, that the application lacks merit, is an abuse of the processes of this Court and does not disclose any substantial grounds for the Court to exercise its discretion; andHaving considered the application, the Grounds of Opposition and the submissions filed by the respective parties, by a unanimous decision of this Bench, we find that;
(a)
This Court has the jurisdiction to consider and allow an application for leave to extend time as settled in Anuar Loitiptip v. Independent Electoral & Boundaries Commission SC Petition (App.) No. 18 of 2018; [2018] eKLR and as pronounced under Section 21(3) of the Supreme Court Act and Rule 53 of the Supreme Court Rules, 2012;
(b)
That the application by the Applicant dated 29th June 2020 and filed on 30th June 2020 satisfies the principles set out by this Court in Hamida Yaroi Shek Nuri v. Faith Tumaini Kombe & 2 others SC Petition (App.) No. 38 of 2018; [2019] eKLR, Mutanga Tea & Coffee Limited v. Shikara Limited & another SC Application No. 19 of 2016, Base Titanium Limited v. County Government of Mombasa & another SC Petition (App). No. 22 of 2018 and Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; (2014) eKLR on extension of time;
(c)
We thus find that the Applicant has a reasonable and cogent explanation and adduced sufficient reasons for the inadvertent delay in filing his application for review of the Court of Appeal decision on certification in Civil Application No. SUPP 15 of 2019;
(d)
The Respondent has not shown what prejudice shall be occasioned upon him if the Applicant’s application is allowed, in the instance.
(5)
In the circumstances, we now make Orders as follows;
(a)
The Notice of Motion by the Applicant dated 29th June 2020 and filed on 30th June 2020 is hereby allowed;
(b)
The draft Originating Motion marked as “WO-4” annexed in the supporting affidavit of the Applicant is hereby allowed and deemed as duly filed and shall be served upon the Respondent within 14 days of this Ruling;
(c)
The Respondent shall file and serve its response to the Originating Motion within 14 days of service;
(d)
The Deputy Registrar shall issue any and further directions as may be deemed necessary in the circumstances;
(e)
Each party shall bear its own costs.
(6)
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/16/eng@2020-09-04
Civil Application 2 of 2020,Saisi v Director of Public Prosecutions & 2 others (Civil Application 2 of 2020) [2020] KESC 24 (KLR) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",4 September 2020,2020.0,Nairobi,Civil,Saisi v Director of Public Prosecutions & 2 others,[2020] KESC 24 (KLR)               ,,"This Application is dated 5th February 2020 and is premised on Articles 23(3), 25(a)(c), 27(1)(2), 28, 29(a)(d), 50, 157(b), (11), 159, 163(3)(b)(i) and 4(a) as well as 259 of the Constitution, Sections 15(2), 21(2) and 24(1) of the Supreme Court Act, 2011 as well as Rules 2, 23 and 26 of the Supreme Court Rules 2012.The Applicant prays that, pending the hearing of Petition No.39 of 2019, a conservatory order be granted staying the execution of the Judgment and decision of the Court of Appeal (Warsame, Makhandia and Murgor JJA) in Civil Appeal No.2 of 2017 as consolidated with Civil Appeal No.184 of 2016.
(3)
The twin appeals before the Court of Appeal originated from a Judgment delivered on 19th April 2016 by Odunga J in Miscellaneous Civil Application No.502 of 2015, Republic v. Director of Public Prosecutions & 2 Others Ex-Parte Praxidis Namoni Saisi. In that matter, the Applicant had prayed for inter alia orders of certiorari to quash the decision of the 2nd Respondent to charge her with certain anti-corruption offences arising from tender No.REF.GDC/HSQ/086/201 r-12 awarded to Bonafide Clearing and Forwarding Company Limited. She was a member of the Tender Committee of the Geothermal Development Company at all material times hence her connection with the tender aforesaid.
(4)
While Odunga J allowed the Applicant’s application in its entirety, the said decision was overturned by the Court of Appeal hence the present appeal. We have separately rendered ourselves on our jurisdiction to determine the appeal (See Ruling on a Preliminary Objection within Petition No.39 of 2019 delivered simultaneously with this Ruling).","As agreed by the parties, in Gatirau Peter Munya, we stated that a party seeking stay orders must address the following issues:Whether the appeal or the intended appeal is arguable and not frivolous;
ii)
That unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed will be rendered nugatory;
iii)
That it is the public interest that the order of the stay be granted.
(11)
The same principles have been applied in many other cases including Board of Governors, Moi High School Kabarak as well as Nathif Jama Adam. As regards the present application, we have taken into account the submissions by the parties in reaching our decision and more importantly we note that the Applicant’s appeal is related to, and connected with Petition No. 40 of 2019, Dr. Peter Ajodo Omanda & 6 Others v. Ethics and Anti-Corruption Commission & 2 Others as well as Application No.31 of 2019. In the said Application, the Applicants, who are all co-accused with the Applicant in the criminal case leading to the present Appeal, sought stay orders for reasons much the same as the Applicant’s. The Respondents in that Application are the same Respondents as in the present matter and opposed Application No.31 of 2019 on the same grounds as in the present application.
(12)
In a Ruling delivered on 30th April 2020, this Court stated thus:
“
(9)
Do the Applicants satisfy the criteria for stay? This Court has authority to issue Orders for the preservation, in an interim period, of a subject-matter of appeal (See Board of Governors, Moi High School, Kabarak & Another v. Malcolm Bell, Supreme Court Applications Nos. 12 & 13 of 2012). It is not automatic that for any unopposed application, the Court will as a matter of cause grant the orders sought. It behoves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted (see Gideon Sitelu Konchellah v. Julius Lekakeny Ole Sunkuli & 2 Others Civil Application No.26 of 2018 [2018] eKLR). The Applicants’ assertion is that the effect of the decision by the Court of Appeal is that they will be subjected to a criminal trial, a situation that will violate their constitutional rights to fair trial and equal benefits and protection of the law as more particularly set out in the petition of appeal.
(10)
We therefore find that the Applicants have demonstrated an arguable case which would be rendered nugatory in the absence of our intervention by way of granting the orders sought. We shall not at this juncture delve into the merits of the Applicants’ arguments as they will be addressed in the appeal itself”.
(13)
Without saying more, we adopt our reasoning in that Ruling as properly applicable to the present related application and will therefore find that, the Applicant has made out a case for grant of orders of stay of execution as prayed, until her Appeal is heard and determined.
(14)
What of costs? This Court has previously settled the law on award of costs, that costs follow the event, and that, a Judge has the discretion in awarding costs. This was the decision in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others Petition No. 4 of 2012; [2014] eKLR. This case remains the binding law on costs and in our view, each party should bear its costs of the present application.
D. Orders
(15)
Consequently, and upon our findings above, the final orders are that:
a)
The execution of the decision of the Court of Appeal [Warsame, Makhandia & Murgor JJA] in Civil Appeal No.313 of 2017 delivered on 20th September 2019 be and is hereby stayed pending the hearing and determination of the appeal.
b)
Each party shall bear its costs of the Application.
c)
Petitions Nos. 39 and 40 of 2020 are hereby consolidated and upon Directions being taken before the Deputy Registrar, the same to be heard and determined expeditiously.
(16)
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/24/eng@2020-09-04
Petition 39 of 2019,Saisi v Director of Public Prosecutions & 2 others (Petition 39 of 2019) [2020] KESC 18 (KLR) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",4 September 2020,2020.0,Nairobi,Civil,Saisi v Director of Public Prosecutions & 2 others,[2020] KESC 18 (KLR)               ,,"This Ruling arises from a Preliminary Objection raised by the 1st Respondent against the Petitioner’s appeal filed on 25th October 2019. The appeal challenges the Judgment of the Court of Appeal at Nairobi (Warsame, Makhandia & Murgor, JJA) of 20th September, 2019 allowing Civil Appeal No. 2 of 2016 as consolidated with Civil Appeal No. 184 of 2016 which set aside the Judgment of the High Court (Odunga J) in Miscellaneous Judicial Review Application No. 502 of 2015 delivered on 19th April, 2016.","The Preliminary Objection before us raises one issue for determination by this Court that is, whether the appeal raises any issue involving the interpretation or application of the Constitution, as contemplated under Article 163(4)(a) of the Constitution.The basis of the 1st Respondent’s preliminary objection is that the appeal raises no constitutional issues hence, fails to qualify as an appeal as of right to invoke this Court’s jurisdiction, a position the 2nd Respondent concurs with. On the contrary, the Petitioner urges that the Appeal is premised upon Article 163(4) (a) of the Constitution and entirely raises issues involving the application and interpretation of the Constitution. Further, that the same challenges violation of Articles 10, 22, 23, 27, 28, 29, 41, 50, 157 and 165 of the Constitution together with applicable statutory provisions.
21)
This Court has previously set the guiding principles for bringing an appeal before it under Article 163 (4) (a) of the Constitution in Gatirau Peter Munya v. Dickson Mwenda Kithinji & Others, S.C. Petition No. 2B of 2014; [2014] eKLR [Munya 2] inter alia as follows:
i.
a Court’s jurisdiction is regulated by the Constitution, by statute law, and by the principles laid out in judicial precedent;
ii.
the chain of Courts in the constitutional set-up have the professional competence to adjudicate upon disputes coming up before them, and only cardinal issues of law or jurisprudential moment, deserve the further input of the Supreme Court;
iii.
the lower Court’s determination of the issue on appeal must have taken a trajectory of constitutional application or interpretation, for the cause to merit hearing before the Supreme Court;
iv.
an appeal within the ambit of Article 163(4)(a) is to be one founded on cogent issues of constitutional controversy;
22)
Further, in Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd. & Another, Supreme Court Petition No. 3 of 2012; [2012] eKLR (Lawrence Nduttu Case), this Court held that mere allegation that a question of constitutional interpretation or application is involved, without more, does not automatically bring an appeal within the ambit of Article 163(4)(a) of the Constitution. It was specifically stated as follows:
“
(27)
This Article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation and/or application of the Constitution can be entertained by the Supreme Court.”
23)
In Peninah Nadako Kiliswa v. Independent Electoral & Boundaries Commission (IEBC) & 2 others, Petition No. 28 of 2013; [2015] eKLR, this Court found that even in matters originating as judicial review, the issues have to fall under the canopy of Article 163 (4)(a). The Court then proceeded to set guiding principles which a party must comply with in appealing to the Supreme Court in a matter originated before the High Court by way of Judicial Review. It was stated thus:
“
(33)
It follows that for an appeal to lie to this Court, in a matter originated under judicial review, the issues have to fall under the canopy of Article 163(4)(a). As judicial review is concerned with process, but for a case where the process is contested as being unlawful, irrational or procedurally unfair – elements falling within the purview of the rule of law (a constitutional principle) – the matter cannot lie to the Supreme Court. Hence in appealing to the Supreme Court in a matter originated before the High Court by way of Judicial Review, the party concerned should comply with certain principles, as follows:
i.
not all Judicial Review matters are appealable to the Supreme Court, as of right;
ii.
it is open to the party concerned to move the Court on appeal under Article 163(4)(b) of the Constitution, in which case, the normal certification process applies;
iii.
where such an appeal comes under Article 163(4)(a), the petitioner is to identify the particular(s) of constitutional character that was canvassed at both the High Court and the Court of Appeal;
iv.
the party concerned should demonstrate that the superior Courts had misdirected themselves in relation to prescribed constitutional principles, and either granted, or failed to grant Judicial Review remedies, the resulting decisions standing out as illegal, irrational, and/or unprocedural, hence unconstitutional.”
24)
We have set out the law above in detail for emphasis but more importantly, we have taken note of a prior Ruling of this Court that is connected with the present matter. The same is dated 30th April 2020 in Petition No.40 of 2019 – Dr. Peter Odoyo Omenda & 6 Others v. Ethics & Anti-Corruption Commission & 2 Others.
25)
The Applicants in that matter were, together with the present Petitioner, the original Joint Applicants in Miscellaneous Judicial Review Application No.502 of 2015 and later the Joint Respondents in Civil Appeal No.313 of 2017 whose Judgment is now before us in two separate appeals – Petitions Nos.39 and 40 of 2019.
26)
As regards the jurisdiction of this Court to determine the issues raised in Petition No.40 of 2019 and which are not different from those raised by the present Petitioner, we rendered ourselves as follows (in a Ruling delivered on 30th April 2020 based on a Preliminary objection by the Respondents):
“
(16)
The summation of the above position is that we are persuaded, without going to the merits of the case, that the appeal raises constitutional issues that were originated from the High Court at the first instance. We therefore affirm that we have jurisdiction to entertain the appeal as filed and that the same should be heard on merit. Consequently, the preliminary objection dated 3rd December 2019 lacks merit and is disallowed. The costs of the objection will abide the outcome of the appeal.”
27)
Having considered the present Application and the objection to our jurisdiction, and noting the issues canvassed in Petition No.40 of 2019 leading to the Ruling aforesaid, we see no reason to depart from our findings and would therefore agree that we have the jurisdiction to determine the present Appeal in its unique circumstances.
28)
In the event the Preliminary Objection by the 1st Respondent must be overruled and as regards costs, we deem it appropriate that each party should bear its costs of the objection.
F. Disposition
29)
Having therefore found that the Preliminary Objection is without merit, the final orders to be made are that:
i)
The Preliminary Objection filed on 29th October 2019 is hereby overruled.
ii)
Each Party shall bear its costs of the Objection.
30)
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/18/eng@2020-09-04
Application 11 of 2020,Thika Coffee Mills v Rwama Farmers Co-operative Society Limited (Application 11 of 2020) [2020] KESC 17 (KLR) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",4 September 2020,2020.0,Nairobi,Civil,Thika Coffee Mills v Rwama Farmers Co-operative Society Limited,[2020] KESC 17 (KLR)               ,,"By an Originating Motion application dated 21st May 2020, the applicant seeks the following prayers: -a)
That this application be certified as urgent and heard ex parte in the first instance;
b)
That this Court extend time for filing of this application, having been filed 6 days beyond the 14 days, from the date of delivery of Court of Appeal ruling, stipulated under the Supreme Court Rules, 2020.
c)
That this Court do certify this matter as of utmost public importance under Section (sic) 163(4)(b) of the Constitution on the basis that a matter or matters of general public importance is /are involved in the intended appeal to the Supreme Court against the judgement and orders of 12th October 2018, by the Court of Appeal (Makhandia, Kiage & M’Inoti, JJ.A) in Civil Appeal No.251 of 2013.
d)
That upon grant of such leave and subsequent successful review, this Honourable Court be pleased to set aside the ruling of the Court of Appeal (Makhandia, Kiage & M’Inoti, JJ.A) delivered on the 24th April 2020 in Nairobi Court of Appeal Civil Application Number 389 of 2018 and substitute therefore with an order allowing the Notice of Motion dated 24th of December 2018.
e)
That consequently, the applicant be granted leave to appeal to the Supreme Court against the judgement and orders of the Court of Appeal of (Makhandia, Kiage & M’Inoti, JJ.A) delivered on the 12th October 2018.
f)
That costs be in the cause.
2.
The application is based on the grounds on the face of the application and supported by affidavits of Prof. Tom Ojienda SC, Advocate, and Pius Ngugi. The grounds are:
a)
That the judgment of the Court of Appeal is wrong, erroneous and against the law under the relevant Statutes and Constitution of Kenya 2010.
b)
That by this application, the applicant’s inquiry which it seeks to have determined at the Supreme Court is whether the Arbitrator’s award is insulated from inquiry even where in the facts proved before the arbitrator he fails to draw an inference which he ought to have drawn, or where he has drawn an inference which is on the face of it, untenable, resulting in miscarriage of justice.
c)
That the Applicant is not advocating for widening of the scope for Court’s intervention and review of awards made in Kenya which would make Kenya unattractive as a seat of arbitration and violate Kenya’s international obligations under the Convention on the Recognition and Enforcement of Foreign Arbitration Awards, 1958 (the New York Convention), among others, for which Kenya is a party.
d)
That the application has been filed six days past the fourteen days limitation period from the date of delivery of the ruling of the Court of Appeal for the following reasons;
i.
Due to Covid 19, the course listing challenges created a confusion as to when the ruling by the Court of Appeal would be delivered, thus the ruling came to the Applicant’s attention way after it was delivered occasioning delays in issuing instructions to apply for this review;
ii.
The applicant’s authorized signatory had been locked out of Nairobi by the movement restrictions and was not available to depone the affidavit until a transit permit was obtained from the relevant government department to enable him travel from Nyeri to hisCounsel’s office at Nairobi.
e)
That the applicant prays that a certificate under section 163(4)(b) of the Constitution does issue on the basis that matters of general public importance are involved in the intended appeal to the Supreme Court against the judgement and orders of the Court of Appeal;
f)
That the Court of Appeal in its ruling dismissed the majority of the questions intended to be placed before Supreme Court because it rendered them those which should not rise to the Supreme Court;
g)
That the main question as to whether the Arbitrator’s award is insulated from inquiry even where in the facts proved before the arbitrator he fails to draw an inference which he ought to have drawn, or where he has drawn an inference which is on the face of it, untenable, resulting in miscarriage of justice was mischaracterized into a narrow jurisdictional question to which law is settled.
h)
That courts in India and elsewhere have made a distinction on circumstances in which a court of law may delve into the merit of an arbitral award.
i)
That the matter sought to be certified arose from determination of the Court of Appeal in the case and not out of the argument or discussions at the hearing.
j)
The applicant is challenging the interpretation of Article 159 and Sections 35 and 37 of the Arbitration Act which the court of appeal used to dispose of the matter in that forum.
k)
That the intended appeal is necessary as a substantial miscarriage of justice might have occurred or may occur unless the said appeal is heard the judgment in the Court of Appeal will not only gravely affect the applicant but could result to the collapse of the coffee farmers and coffee co-operative societies.
3.
In effect, the applicant seeks leave to file the application out of time and to review of the refusal to grant certification by the Court of Appeal.","On perusing the record, we noted that the respondent, further to its submissions presented a document titled “Respondent’s Further Submissions and Clarification” dated 24th June 2020 ostensibly in response to the applicant’s supplementary submissions. This is much to the chagrin of the applicant who on its part authored, through its Advocates on record, a letter dated 26th June 2020 to this Court’s Honourable Deputy Registrar urging that the document be purged from the record as it is filed without any basis under this Court’s Rules.As the letter has been placed in the record before us, we move to address the same at this juncture before delving into the issues as framed for determination.
We are mindful of this Court’s Rules and whether the applicant had written the letter or not, we see no basis to consider the said document. The record before us is on the basis of documents filed regularly within the Rules ending with the applicant’s supplementary submissions. This is what we have considered for their full tenor and effect. The respondent need not be apprehensive and in the process cast aspersions on the Court’s ability to comprehend the record before it as to require clarification from the respondent or its counsel. We need not belabor this and leave it at that.
i) Extension of time
14.
On the first issue, it is common ground that the application for review of certification such as this one before us ought to be filed within fourteen days under this Court’s Rules. It is also not in contention that the ruling on certification was made on 24th April 2020 and that this application was filed on 21st May 2020. The respondent does not appear to object to this prayer as they have not addressed it in their submissions. The delay by the applicant is attributed to the confusion that arose in the wake of the COVID-19 pandemic which occasioned challenges. Such challenges related to the mode of delivery of the rulings by the respective courts and the restriction in movements into and out of Nairobi City County which affected the deponent’s ability to travel from Nyeri to the applicant’s Counsel’s office in Nairobi. We are satisfied with the explanation given by the applicant and accordingly allow the prayer for extension of time as sought.
ii) Review of certification
15.
As for certification, we reiterate that the applicant has to demonstrate satisfactorily that there is, inter alia, a legal question the subject matter of which transcends the present litigants. From the record before us, we note that while the applicant had initially framed eleven questions to be certified as involving great public importance, and the applicant seeks the substitution of the Court of Appeal with the granting of prayers sought in the said application for certification as presented before the Court of Appeal, the Court of Appeal reduced them into three and collapsed them into one – that involving the jurisdiction of the High Court and Court of Appeal under section 35 of the Arbitration Act. The Court of Appeal’s reasoning was that those questions did not come through the Court hierarchy and were therefore not subject to decisions the basis upon which the intended appeal could lie.
16.
We have followed the decisions of the High Court and Court of Appeal and find no fault in the position adopted by the Court of Appeal in that respect. At no point did the High Court or the Court of Appeal consider the jurisdiction or statutory provisions relating to the Co-operative Tribunal. That issue was not the basis of the application filed by the applicant to set aside the award during the hearing, as noted by the High Court in its ruling, the applicant clarified that it was not seeking to appeal the decision of the arbitrator on its merit but rather to set it aside within the parameters of section 35 of the Arbitration Act.
17.
We do not also find merit in the applicant’s arguments that it could introduce arguments specific to certification at this stage devoid of any determinations made by the superior courts. Doing so as submitted by the applicant would amount to our exercising original jurisdiction on the matter as opposed to settling a matter certified as general public importance in an appellate capacity contemplated under Article 163(4)(b) of the Constitution.
18.
The applicant did not aggressively pursue the other questions framed before the Court of Appeal especially relating to the Co-operatives Tribunal or the applicable statutory provisions and instead focused on the power to set aside an Arbitration Award under section 35 of the Arbitration Act. However, if we understood the applicant correctly, its argument is that whereas the Nyutu Decision (supra) addressed itself to the right to appeal against an arbitral award under section 35 both to the High Court and to the Court of Appeal and the exercise of the Court’s jurisdiction under those provisions, the present application is distinguishable in that it seeks to interrogate the extent to which the Court must be able to interfere with the arbitrator’s award irrespective of the grounds set out in section 35 aforementioned.
19.
While we get the applicant’s distinction, we dealt with section 35 at length in the Nyutu Decision (supra). The applicant’s grievance, as we perceive it, largely revolves around the arbitrator having exceeded its mandate beyond the pleadings and the decision being contrary to public policy. These in our view are parameters well covered under section 35 and were in fact invoked by the applicant before the High Court at the first instance. The said provisions are reproduced are as follows:
35.
Application for setting aside arbitral award
(2)
An arbitral award may be set aside by the High Court only if—
(a)
the party making the application furnishes proof—
(iv)
the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside
(b)
the High Court finds that –
(ii)
the award is in conflict with the public policy of Kenya” (Emphasis ours)
20.
We note that the Court of Appeal stayed its decision until after the determination in the Nyutu Decision (supra) by this Court. Upon that determination, the Court of Appeal by majority decision, rightly so, admitted the appeal and considered the High Court’s decision on its merit reviewing the High Court’s findings on whether the arbitrator had gone beyond his scope and determined un-pleaded issues or whether there was any conflict with public policy.
21.
We infer that the applicant is aggrieved by the specific finding as it relates to its case. This is separate from a claim that there are no sufficient parameters for redress as to warrant a further articulation by this Court. To pursue the applicant’s argument as proposed would result in an extension of the scope of section 35 to include perceived wrong inferences of fact made by the arbitrator. This can only be best captured if the Arbitration Award were to be considered on its merits, by way of appeal including that contemplated under section 39 of the Arbitration Act and not by way of setting aside proceedings as presently invoked. The parameters of setting aside under section 35 are very specific and offer sufficient recourse to be resorted to by any party aggrieved by the arbitral award where the grievance meets the criteria. This is more so in the wake of our position in the Nyutu Decision (supra).
22.
It becomes critical for us to draw the line between the matter being one of general public importance and addressing a specific litigant’s disagreement with a decision of the Court, and in this case the Court of Appeal. We reiterate our caution in our judgment in Dhanjal Investments Limited v Kenindia Insurance Company Limited Sup Ct. Petition No.7 of 2016 thus:
(67)
Having so stated, we must at this point remind parties that it is only the issues that are certified as being of great public importance that must form the basis for submissions and ultimately the decision of this Court. To frame certain issues as being of great public importance at the point of certification under Article 163(4)(b) of the Constitution and then submit on issues that are specific to the parties at hand with no public element exhibited is an abuse of Court process and may lead to the dismissal of an appeal.”
We further add that each case is to be determined on its own merit. The present case does not merit the certification sought and we affirm the Court of Appeal position.
23.
In order to bring closure to these proceedings spanning over two decades and owing to our finding on certification, we see no reason to burden the applicant with meeting the costs of the respondent. Each party to bear its own costs.
24.
In the end we make the following Orders:
a)
The originating motion dated 21st May 2020 is hereby disallowed.
b)
Each party to bear its own costs relating to this application.
It is so ordered",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/17/eng@2020-09-04
Application 8 of 2020,University of Eldoret & another v Sitienei & 3 others (Application 8 of 2020) [2020] KESC 76 (KLR) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",4 September 2020,2020.0,Nairobi,Civil,University of Eldoret & another v Sitienei & 3 others,[2020] KESC 76 (KLR)               ,,"On 30th April 2020, we delivered a ruling on two applications brought by the parties to this matter. The first application filed on 23rd August 2019 by the applicants sought a stay of execution of the judgment and decree of the Court of Appeal at Nakuru delivered on 18th October 2018, the same judgment subject to the present intended appeal. The second application by the 1st and 2nd respondents (the respondents) sought the striking out of both the Notice and Record of this Appeal. The appeal subject to those applications was in respect of a ruling delivered by the Court of Appeal on 9th July 2019 in which the petitioners had sought to review the judgment made on 18th October 2018. In our ruling, we struck out the petition of appeal and dismissed the application for stay of execution. Other than the 1st and 2nd respondents, the other respondents, just like in those applications subject to the ruling on 30th April 2020, did not participate in the present applications.On 7th May 2020, the applicants were back before the Supreme Court. They filed a petition being Petition No. 6 of 2020 against the respondents. Contemporaneously, they filed a Notice of Motion application on the same date seeking in effect the following prayers:
a)
This matter be certified as urgent and service thereof be dispensed with in the first instance.
b)
This Honourable Court be pleased to grant an interim stay of execution of the judgment and decree of the Court of Appeal at Nakuru made on the 18th October 2018 in Civil Appeal No.55 of 2017 (as consolidated with Civil Appeal No.58 of 2017) and all proceedings, awards and orders consequential upon the said judgment including the decree emanating from the judgment delivered on 9th July 2019 by the Employment and Labour Relations Court in Nakuru Employment and Labour Relations Court Cases No.3 & 4 of 2019 pending inter partes hearing of this application and pending the hearing and determination of the Petition of Appeal filed herewith;
c)
This Honourable Court be pleased to grant leave to the applicants to file a Notice of Appeal and Petition out of time against the said decision of the Court of Appeal made on 18th October 2018;
d)
The Notice of Appeal lodged in the Court of Appeal at Nakuru on 6th May, 2020 and the Petition of Appeal dated 6th May, 2020 be deemed duly filed and to be properly on record;
e)
This Honourable Court be pleased to direct that the proceedings herein be heard by way of video conference or other appropriate technology pursuant to Rule 3(3) of the Supreme Court Rules 2020;
f)
The costs of the application be costs in the appeal.
3.
The application is supported by the affidavit of Stephen Anditi, the 1st applicant’s Legal Officer. The applicants’ advocate Eric Gumbo filed a Supplementary Affidavit dated 7th day of May 2020 in which he annexes the Petition of Appeal No.6 of 2020 filed together with the present application and the Court of Appeal judgment delivered on 18th October 2020, subject to the intended appeal. The applicants also filed written submissions in respect of the application.
4.
On 22nd May 2020, the applicants filed another application under certificate of urgency seeking the following prayers:
a)
The application herein be certified as urgent and service thereof be dispensed with in the first instance.
b)
This Honourable Court be pleased to order interim stay of any execution arising from or relating to the subject matter of the proceedings pending before this Honourable Court, being the Decree and Orders arising from the Judgment of the Court of Appeal at Nakuru delivered on 18th October 2018 in Civil Appeal No.55 of 2017 (as consolidated with Civil Appeal No.58 of 2017) pending the hearing and determination of the application dated 6th May, 2020;
c)
The Court be pleased to stay execution proceedings in the Employment and Labour Relations Nakuru ELRC Case No.3 and 4 of 2019, arising from the decision of the Court of Appeal in Civil Appeal No.55 and 58 of 2016, the subject of these proceedings, and in particular the attachment levied on the 1st Applicant’s Bank Account No.01021073342500 domiciled at National Bank of Kenya, Eldoret in the credit of the 1st applicant to answer to the Decree for the sum of Shs.38,903,116.60 (Decretal sums) as well as any execution of the 1st Applicant’s property in satisfaction of the Decretal sums pending the hearing and determination of the application dated 6th May 2020 pending the hearing and determination of the Petition of Appeal filed herewith;
d)
This Honourable Court be pleased to direct that the court file in Nakuru Employment and Labour Relations Court Case No.3 & 4 be transmitted to this Honourable Court for appropriate directions during the hearing of the application dated 6th May 2020.
This application is further supported by the affidavit of the said Stephen Anditi.
5.
The application is grounded on the main fact that while this Court is seized of the application dated 6th May 2020, the 1st and 2nd respondents initiated execution proceedings against the 1st applicant’s stated account and obtained a Decree Nisi for garnishment of the account in the sum of Shs.38,903,116.60 from the Employment and Labour relations Court at Nakuru which is the exact same subject matter of the application pending before this Court. The Employment and Labour Court had directed the Garnishee to appear in court on 2nd June 2020 to show cause why the Decree Nisi should not be made absolute.
6.
The applicants further stated that the effect of the execution is to freeze all monies in the 1st applicant’s bank account causing unnecessary hardship to the 1st applicant’s operations as it is unable to undertake any transactions in relation to the account. That unless this Court intervenes, public funds will be irrecoverably lost to the 1st and 2nd respondents and lead to undermining this Court’s judicial authority and integrity and it is necessary to preserve the substratum of both the application dated 6th May 2020, the substantive appeal and the directions made by this Court’s Honourable Deputy Registrar on 18th May 202","Before delving into the merits of the matter, we note that these are no ordinary applications where we merely focus on the prayers sought and exercise our discretion. The present applications come on the backdrop of previous court process before us by the same applicants arising, yet again, from the same decision of the Court of Appeal made on 18th October 2018.Briefly, the 1st and 2nd respondents were the 1st applicant’s Finance Officer and Deputy Vice Chancellor, Finance and Administration respectively. In July 2015, they were suspended from duty pending investigations on allegations of involvement in the unrests at the 1st applicant at the time. They filed suit before the Employment and Labour Relations Court (ELRC) at Nakuru (No.8 of 2015) seeking to stop the intended investigations. On 6th November 2015, Radido J., declined to halt the investigations directing the 1st applicant to serve them with the investigation results before undertaking any disciplinary action against them. The 1st applicant instead commenced disciplinary proceedings prompting the respondents to separately file petitions (Nos. 1 and 2 of 2016) seeking similar reliefs. The ELRC did not interfere with the disciplinary process and the respondents were subsequently terminated from employment.
27.
Dissatisfied, the duo filed, at the ELRC, Petitions numbers 10 and 11 of 2016 challenging their termination for being unlawful, irregular and illegal, contending that it violated constitutional and statutory provisions and the orders of 6th November 2015. They also contended that as constituted, the University Council did not have the mandate to undertake disciplinary process and accordingly sought declaratory reliefs or in the alternative, compensation. The applicants opposed the petitions contending that they were res judicata; that they were misconceived for merely raising personal and private law issues disguised as constitutional issues; that the disciplinary process was fair and lawful; and that members of the 1st applicant’s Council were legally in office.
28.
By a judgment dated 24th November 2016, the petitions were dismissed by Marete J. as being res judicata. The respondents’ separate appeals were consolidated by the Court of Appeal and allowed through the judgment dated 18th October 2018. The Court of Appeal also dismissed the applicants’ applications for review provoking Petition of Appeal No.33 of 2020 before us which was struck out as per our ruling on 30th April 2020 the details of which we need not rehash.
29.
In the same breadth, we also do not find it necessary to make a finding on whether the respondents were duly served electronically or not. The important consideration is that the 1st and 2nd respondents were eventually in a position to respond to the applications by filing the replying affidavit, submissions and list and digest of authorities and articulate their position before the Court.
a) Extension of time
30.
It is trite that we have jurisdiction to extend time and the exercise of that jurisdiction is an issue of our judicial discretion. Rule 15(2) of the Supreme Court Rules 2020 is instructive on this issue. Moreover, this Court has considered and laid down several principles as was pointed out by the parties. We re-emphasize the principles in the Nicholas Salat case (supra) and in particular consideration on whether the applicants have a reasonable reason to explain their delay to the Court’s satisfaction.
31.
The main contention by the applicants is that they have sustained a diligent quest for justice only that they relied on their advocates’ honest belief and advice in pursuing a review of the Court of Appeal judgment and subsequent appeal against that before the Supreme Court. This course, unfortunately for them, did not yield their expected outcome and they now seek another opportunity to go at it albeit by way of appeal on the substantive judgment of the Court of Appeal. The applicants further invoke a public interest consideration bearing in mind the nature of the institution and its funding from public coffers. This public interest angle is strenuously objected to by the 1st and 2nd respondents who instead allege that the proceedings are a cash cow for the applicants to expend extraneous amounts in legal fees. With respect to the respondents, we think this approach is unnecessary as the issue before the Courts was never about the legal fees payable to the counsel. This in our view is a factual matter below our scope especially as a second appellate Court and particularly at this interlocutory stage.
32.
The respondents maintain that the reasons offered by the applicants are not plausible, the delay is inordinate and the ignorance of the law by the applicants in pursuit of their action is no defence. In any event, the applicants have not filed their Notice of Appeal which is a jurisdictional prerequisite for the court to entertain the matter further.
33.
It is evident that following the decision of the Court of Appeal, the applicants were faced with two options – to, either file for review of the decision to the same Court or pursue an appeal before this Court within either of the applicable jurisdictional contours. The applicants, as advised by their advocates, chose the former. We agree with the applicants’ advocates that they could not concurrently pursue both options as that would be an outright abuse of judicial process. However, following from our decision in Fahim Yasin Twaha v. Timamy Issa Abdalla & 2 Others [2015] eKLR, where a litigant has more than one option to pursue, he/ she must settle on one of them. The decision on which course to pursue is taken in advance and once it is taken, the other option is no longer available or placed in abeyance to be reverted to at a later stage in the event the initial option does not succeed. This means that when choosing, the litigant is expected to choose the best available option since she may not have any further recourse.
34.
We therefore note that when the applicants preferred to pursue review of the decision, as they were entitled to, that was the best option in their assessment even if it turned out to be unsuccessful. Allowing them to take the second option at this stage, as if they never exercised the first option in the first place, would not only contribute to protracting litigation but also defeat the whole essence of finality of the litigation process. This would mean that precious judicial time and resources would have been unnecessarily expended in not settling the dispute but rather satisfying the litigants’ options to cherry pick and engage in trial and error at the altar of judicial process without the attendant consequences.
35.
The delay which the applicants seek to be excused from is largely as a result of the applicants’ pursuit of the review process before the Court of Appeal and the resultant appeal before the Supreme Court. This delay, the 1st and 2nd respondents indicate is 560 days which the applicants do not contest. Whereas the applicants may have diligently been pursuing their options whose success may have had an implication on the need for these proceedings, we are not inclined to accept such explanation based on what we have already stated.
36.
Rule 36 of the Supreme Court Rules 2020 provides for the filing of a Notice of Appeal within fourteen days of a decision of the Court of Appeal from which an intended appeal is founded. The filing of a Notice of Appeal is not premised on any occurrence or condition to be fulfilled by the appellant. The filing of a Notice of Appeal signifies the intention to appeal. The applicants appreciated as much in filing their Notice of Appeal against the review decision of the Court of Appeal. The applicants cannot therefore be heard to argue that they did not know the importance of this step. The applicants have not explained why they never attempted to comply with this important step at the time.
37.
Having said so, we echo our previous position that filing of the Notice of Appeal is a jurisdictional prerequisite. The prevailing circumstances specific to this case make it very difficult for the Court to evaluate any satisfactory reasons that excuse the applicants from this apparent non-compliance. Moreover, as we noted in Nicholas Salat case, the purported filing of a Notice of Appeal and Petition of Appeal without the requisite leave cannot be sanctified by the Court, notwithstanding that a case number was issued to the applicants. The alleged Notice of Appeal and Petition of Appeal therefore have to be struck out from the Court record for having been ‘filed’ without Court sanction and out of time. The Notice of Appeal not having been filed on time, the Court cannot resuscitate anything in this matter.
38.
The inevitable conclusion we must draw on this issue is that the prayer for extension of time must fail, and it is so ordered.
b) Whether to grant orders of stay
39.
In the absence of a subsisting appeal as we have found above, the prayers for stay in both applications are superfluous. The principles for grant of orders of stay were enunciated in Board of Governors, Moi High School Kabarak & Another case (supra) the principle objective of which being to preserve the subject matter of an appeal. The applicant must satisfy the Court that the intended appeal is arguable and not frivolous, and that unless the stay order sought is granted, the appeal or intended appeal would be rendered nugatory.
40.
Applying this to the facts, there is no doubt that the applicants’ intended appeal would, but for our finding, been arguable. The applicants sought to challenge the manner in which the Court of Appeal exercised its jurisdiction and how this related to Articles 25 and 50 of the Constitution. The issues raised in the matter relate to the Court’s determination of the doctrine of res judicata a similar issue pending before Court as in John Florence Maritime Services Limited case (supra).
41.
As for the other consideration whether or not the intended appeal would be rendered nugatory, the applicants’ position is contradictory. While the applicants in the affidavit in support of the application filed on 22nd May 2020 at paragraph 15 indicate that the orders sought are necessary to preserve the substratum of both proceedings pending before the Court, their position changed upon the conclusion of the garnishee proceedings. Paragraph 9 of the Further Affidavit filed on 5th June 2020 on behalf of the applicants indicate that the substantive cause of action set out in Petition No.6 of 2020 is not at all affected by the ruling in the garnishee proceedings and that the matter should be considered on the merits and appropriate findings made in the interests of justice.
42.
In our view, the garnishee proceedings are as a result of lawful legal process arising from a decree issued by a competent Court. This in itself cannot therefore justify grant of stay particularly in the wake of the status of the appeal as already found. Accordingly, we are not persuaded to grant stay orders under the circumstances as it would serve no purpose.
43.
Before we conclude, we note that there was certain conduct involving the use of social media that we found unbecoming. Though that may not be directly linked to the applications, we expect decorum from litigants and especially counsel as officers of the Court. Matters before the Court should best be litigated and left to the Court for determination. It is not a coincidence that the 1st and 2nd respondents’ averments found their way to the media both print and by bloggers. Whereas this may not have a bearing on the Court’s decision, we need to emphasize that as officers of the Court, Counsel should be able to advise their Clients accordingly on their conduct relating to matters sub judice.
44.
In conclusion, the parties have had their share of litigation and we would not want to extend it any further, more so on the limited issue of costs as a result of these applications. There must be an end to litigation however much the applicants are dissatisfied.
Determination
45.
In the end we disallow the applications and make the following orders:
a)
The application dated 6th May 2020 and filed on 7th May 2020 is hereby dismissed.
b)
The application dated 22nd May 2020 and filed on 22nd May 2020 is hereby dismissed;
c)
The petition of appeal dated 6th May 2020 and filed on 7th May 2020 is struck out;
d)
Each party shall bear their own costs.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/76/eng@2020-09-04
Petition 19 of 2019,Wainaina & another (As Administrators of the Estate of  Margaret Wanjiru Kinyara - Deceased) v Kinyanjui & Njenga (As Administrators of the Estate of Elizabeth Wanjiru Njenga -Deceased) & 3 others (Petition 19 of 2019) [2020] KESC 28 (KLR) (Civ) (4 September 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu",4 September 2020,2020.0,Nairobi,Civil,Wainaina & another (As Administrators of the Estate of  Margaret Wanjiru Kinyara - Deceased) v Kinyanjui & Njenga (As Administrators of the Estate of Elizabeth Wanjiru Njenga -Deceased) & 3 others,[2020] KESC 28 (KLR)               ,,"The Petition before the court is dated and filed on the 17th of May 2019, appealing against the decision of the Court of Appeal at Nairobi dated 5th of April 2019, in Civil Appeal No 30 of 2005. The Appellate Courts decision overturned a High Court decision that had awarded Mary Wanjiru Kinyara (deceased) a portion of her deceased’s father property.","We have on several occasions stated that a party ought to indicate which constitutional provision he or she relies on when they move this Court. It is absurd that a party can seek audience before the court without doing so, as it cannot be left to the court to speculate which provision is best suited for the Petitioner’s appeal.This was our position in Daniel Kimani Njihia v. Francis Mwangi Kimani & Another [2015] eKLR where this Court was categorical that in preferring an appeal, “a litigant should invoke the correct constitutional or statutory provision; and an omission in this regard is not a mere procedural technicality, to be cured under Article 159 of the Constitution.”
11.
Similarly, in Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others [2018] eKLR we stated that:
“
(53)
In this appeal, what Counsel for the petitioners is asking us to do is to assume jurisdiction by way of elimination. This Court is being called upon to hold that, because certification, was not sought by the intending appellant, then it must follow that the said appellant, is invoking the Court’s jurisdiction as of right, under Article 163 (4) (a) of the Constitution, even without demonstrating that, such right obtains in the first place. This we cannot do, as it would make a mockery of our past pronouncements on the matter…”
12.
In our view, the principles in the above cases still prevail and we dismiss the petition for want of jurisdiction.
ORDERS
1.
The Preliminary Objection dated 30th of May 2020 is allowed.
2.
The Petitioner’s shall bear the costs of this application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/28/eng@2020-09-04
Petition 23 of 2019,Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR) (4 September 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",4 September 2020,2020.0,Nairobi,Criminal,Waswa v Republic,[2020] KESC 23 (KLR)               ,,"The appellant was charged with the offense of murder in the trial court. After nine witnesses for the prosecution had testified, counsel for the family of the deceased (the victim) made an oral application for leave to actively participate in the proceedings. The trial court observed that the law had shifted the traditional parameters of a victim in a criminal case and therefore a victims’ counsel could no longer be considered a passive observer in criminal proceedings. However, the trial court noted that the counsel for the victim could not be active and parallel to that of the prosecutor.Consequently, the trial court allowed the participation of the counsel watching brief limited to the following instances: on submission at the close of the prosecution case whether there was a case to answer; final submission should the accused be put on his defence; on points of law should such arise in the course of trial, and upon application at any stage of the trial for the consideration by the court.Aggrieved by the trial court’s ruling, the appellant lodged an appeal to the Court of Appeal. The Court of Appeal being satisfied that the impugned rights given by the trial court to the victim of the offence (the father of the deceased) were in conformity with the Constitution of Kenya, 2010 and the Victim Protection Act, 2014 (VPA), upheld the ruling of the trial court and dismissed the appeal in its entirety. Aggrieved by the decision of the Court of Appeal, the appellant filed the instant appeal.","As the overriding element of State control inevitably pit the power of the State against the accused, the necessity of protecting the accused’s rights within that power imbalance arose to ensure that there was equality of arms. However, that could inadvertently eclipse the recognition of the victim’s inherent interest in the response by the criminal justice system to the crime. Kenya’s progressive Constitution had captured and addressed all those scenarios.The right to fair hearing was provided for under article 50(1) of the Constitution and the attendant rights of an accused person were set out in article 50(2). The Constitution also recognized victims of offences. In addition to the constitutional underpinning, the Victim Protection Act (VPA) was enacted deliberately in 2014 to give effect to article 50(9). Thus, the rights of victims in a trial process also had statutory underpinning.
Although the adversarial criminal trial process was a contest between the State, represented by the Director of Public Prosecutions (DPP), and the accused, usually represented by defence counsel and the traditional role of victims in a trial was often perceived to be that of a witness of the prosecution, that flowing from both the Constitution and the Victim Protection Act (VPA) and in particular section 9(2)(a) of the VPA, a victim too, had the right to participate in criminal proceedings.
The participation of victims in criminal trial proceedings, though a novel trend in Kenyan laws, was in accord with international developments that had embraced the place of victims in the trial process. Kenya’s Constitution under articles 2(5) and (6) permitted the court to apply the general rules of international law and also provided that any treaty or convention ratified by Kenya formed part of the law of Kenya.
The role of a victim in a criminal trial was recognized in the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985). In that Declaration, in the context of the criminal justice system, it was a central obligation of governments to comply with the victim’s rights to access to justice and fair treatment, restitution, compensation and assistance.
Under article 68(3) of the Rome Statute, of the International Criminal Court (ICC) victims before the ICC were granted far-reaching rights. In light of the large degree of discretion accorded to the judges conducting the trial, the practice of the ICC had developed to allow victims:-
to make an opening and closing statement (that was also in consonance with rule 89(1) of the ICC Rules of Procedure and Evidence);
to attend and participate in hearings and status conferences through written submissions and oral argument;
to introduce evidence and challenge admissibility of evidence with leave of the court; and
to question witnesses and/or the accused under the strict control of the court. Where there were a large number of victims admitted to participate in the proceedings, the court could limit the number of lawyers representing them pursuant to rule 90(2)-(4) of the ICC Rules of Procedure and Evidence.
The emerging picture from other jurisdictions was that the criminal justice processes should empower victims and their voices should be heard, not only as witnesses for the prosecution but as rights holders with a valid interest in the proceedings and the outcome of the cause.
Article 259(1) and (3) of the Constitution was instructive on how to construe their rights under article 50(9) of the Constitution. Articles 20(3) and 50(9) of the Constitution read together with the Victims Protection Act (VPA) affirmed that victims had rights in Kenya’s criminal justice system. Those rights were stipulated in section 9 of the Victims Protection Act (VPA). Article 27 of the Constitution also provided that every person was equal before the law and had the right to equal protection and equal benefit of the law. Both the Constitution and the Victims Protection Act (VPA) sought to ensure the fairness of justice procedures applied to both the victims and accused particularly on the right to a fair hearing, timeliness, respect, dignity, and neutrality.
The trial court being an impartial entity that oversaw the progress of a case had the ultimate function of determining the accused’s guilt or innocence. Its aim was to establish the truth. The purpose of criminal proceedings, generally, was to hear and determine finally whether the accused had engaged in conduct which amounted to an offence and, on that account, was deserving of punishment. Thus, the rights of the accused could not be considered in isolation without regard to those of the victim. Victims too had a legitimate interest in the court’s exercise of its jurisdiction. The criminal justice system should cultivate a process that inspired the trust of both the victim and the accused.
Considering the rights of the accused, the victim and society as a whole in a criminal trial was not only fair, pragmatic but also constitutionally viable. The trial court had to protect the rights of all parties involved in criminal proceedings. There was a public interest in ensuring that trials were fair. That interest could be served by safeguarding the rights of the accused, the objectivity of the prosecution and, by acknowledging the victim’s interest. The rights of the accused and the public interest should be secured and fulfilled. The rights of victims did not undermine those of the accused or the public interest. The true interrelationship of the three was complementary. The participatory rights of the victim did not violate the fair trial rights of the accused. A victim could participate in a trial in person or via a legal representative.
Once a victim or his legal representative made an application to participate in a trial, it was the duty of the trial court to evaluate the matter before it, consider the victim’s views and concerns, their impact on the accused person’s right to a fair trial, and subsequently, in the trial court’s discretion, determine the extent and manner in which a victim could participate in a trial. Since participatory rights were closely related to the rights of the accused and the right to a fair and expeditious trial, they should be granted in a judicious manner which did not cause undue delay in the proceedings and thus prejudice the rights of the accused.
Discretionary pronouncements of a court formed an integral part of a court’s jurisdiction and should not be interfered with unless an appellate court was satisfied that the exercise of that discretion was improper and, therefore, warranted interference. A court had to be satisfied that the trial court in exercising discretion misdirected itself and had been clearly wrong in the exercise of the discretion and that as a result, there had been injustice. In the instant case, there was no need to interfere with the trial court’s discretionary pronouncements.
Article 157(1) of the Constitution established the office of the DPP. The State’s prosecutorial powers were vested in the DPP under article 157 of the Constitution. That office, under article 157(10), neither required the consent of any person to institute criminal proceedings nor was it under the direction or control of any person or authority. Those provisions were also replicated in section 6 of the Office of the Director of Public Prosecutions Act, 2013. The office of the DPP was the sole constitutional office with the powers to conduct criminal prosecutions.
The victim had no active role in the decision to prosecute, or the determination of the charge upon which the accused would finally be tried. That was the sole duty of the DPP. While the victim of a crime could participate at any stage of the proceedings as deemed appropriate by the trial court, a victim or his legal representative did not have the mandate to prosecute crimes on behalf of the DPP. The DPP had to at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory power of the DPP to conduct the prosecution was not affected by the intervention of the victim in the process.
A victim could not and did not wear the hat of a secondary prosecutor. When victims presented their views and concerns in accord with section 9(2) (a) of the Victim Protection Act (VPA), victims were assisting the trial court to obtain a clear picture of what happened (to them) and how they suffered, which the trial court could decide to take into account. Victim participation should meaningfully contribute to the justice process. However, that did not mean that the court’s judgment would follow the wishes of the victim. The trial court would take into account the law, facts, all the different interests, and concerns, including the rights of the defence and the interests of a fair trial to arrive at a sagacious decision.
The following guiding principles would assist the trial court when it was considering an application by a victim or his legal representative to participate in a trial and the manner and extent of the participation:-
the applicant had to be a direct victim or such victim’s legal representative in the case being tried by the court;
the court should examine each case according to its special nature to determine if participation was appropriate, at the stage participation was applied for;
the trial court had to be satisfied that granting the victim participatory rights should not occasion an undue delay in the proceedings;
the victim’s presentation should be strictly limited to the views and concerns of the victim in the matter granted participation;
victim participation should not be prejudicial to or inconsistent with the rights of the accused;
the trial court could allow the victim or his legal representative to pose questions to a witness or expert who was giving evidence before the court that had not been posed by the prosecutor;
The trial court had control over the right to ask questions and should ensure that neither the victim nor the accused were not subjected to unsuitable treatment or questions that were irrelevant to the trial;
the trial court should ensure that the victim or the victim’s legal representative understood that prosecutorial duties remained solely with the DPP;
while the victim’s views and concerns could be persuasive; and in the public interest that they were acknowledged, those views and concerns were not to be equated with the public interest;
the court could hold proceedings in camera where necessary to protect the privacy of the victim;
while the court had a duty to consider the victim’s views and concerns, the court had no obligation to follow the victim’s preference of punishment.
The right to have a trial commence and conclude without unreasonable delay was an accused person’s constitutional guarantee under article 50(2)(e) of the Constitution. A victim also had the right to have the trial begin and conclude without unreasonable delay under section 9(1)(b) of the Victim Protection Act (VPA). In addition, article 159(2)(b) of the Constitution obligated courts not to delay justice. Further, treaties and international instruments that Kenya had ratified such as the African Charter on Human and People’s Rights, Rome Statute of the ICC, and the International Covenant on Civil and Political Rights (ICCPR) contained similar provisions, that bound the court in all criminal justice procedures and processes.
The benefits of an expeditious trial could not be gainsaid. A speedy trial ensured that the rights of the accused person were secured; it minimized the anxiety and concern of the accused; it prevented oppressive incarceration; and protected the reputation, social and economic interests of the accused from the damage which flowed from a pending charge. It also protected the interests of the public, including victims and witnesses, and ensured the effective utilization of resources. Additionally, it lessened the length of the periods of anxiety for victims, witnesses, and their families and increased public trust and confidence in the justice system.
In conformity with the Constitution, courts should shun situations where an accused’s right to a fair trial was prejudiced by virtue of undue delay. Courts possessed the power to take appropriate action to prevent injustice. That power was derived from the public interest that trials were conducted fairly and that as far as possible the accused was tried without unreasonable delay the end goal being to achieve prompt justice in criminal cases.
There was no provision in both the Constitution and the Criminal Procedure Code (CPC) for interlocutory criminal appeals. The Constitution under article 50(2)(q) provided that every accused person had the right, if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. Similarly, the CPC under sections 347 and 379(1) only allowed appeals by persons who had been convicted of an offence.
The delay of over six years defeated the intention of the framers of the Constitution and of Parliament to have criminal trials concluded expeditiously. The guarantee to have a criminal trial conducted without undue delay related not only to the time by which a trial should commence but also the time by which it should end, judgment rendered and any applicable appeals or reviews completed. Therefore, although criminal trials were not time bound like election petitions, there was need to have them determined expeditiously in line with the constitutional prescriptions.
The right of appeal against interlocutory decisions was available to a party in a criminal trial but should be deferred, and await the final determination by the trial court. A person seeking to appeal against an interlocutory decision had to file the intended notice of appeal within 14 days of the trial court’s judgment. However, exceptional circumstances could exist where an appeal on an interlocutory decision could be sparingly allowed, these included:-
where the decision concerned the admissibility of evidence, which, if ruled inadmissible, would eliminate or substantially weaken the prosecution case;
when the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and
where the decision entailed the recusal of the trial court to hear the cause.
 
Petition dismissed.
Orders
For the avoidance of doubt, the determination in Criminal Appeal No. 132 of 2016 was upheld.
In view of the inordinate delay of the original murder trial, occasioned by appeals relating to an interlocutory matter, the substantive matter was directed to be heard and determined on the basis of priority.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/23/eng@2020-09-04
Petition (Application) 36 of 2019,Gichuru v Package Insurance Brokers Ltd (Petition (Application) 36 of 2019) [2020] KESC 19 (KLR) (Civ) (3 September 2020) (Order),Order,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",3 September 2020,2020.0,Nairobi,Civil,Gichuru v Package Insurance Brokers Ltd,[2020] KESC 19 (KLR)               ,,"The Petitioner filed a Notice of Motion on 1st October, 2019. It is brought pursuant to the provision on Article 163(4) of the Constitution, Section 21 of the Supreme Court Act Rules 23, 33(6) and 54 of the Supreme Court Act, Rules 2012.","The Honourable Chief Justice and President of this Court empanelled this Bench to determine the Application.Upon consideration of this matter and the record and reference to the Deputy Registrar we have ascertained that the Respondent has not to date filed any response in opposition citing the existence of the Consent filed herein.
7.
As a result, it is our considered view that we ought to adopt and endorse the said consent as an order of this court to attain the parties’ wishes and save precious judicial time.
8.
We therefore vacate herewith the orders for filing of written submissions and delivery of any ruling in respect thereof. We hereby adopt and endorse the Consent dated 27th January, 2020 as an order of the Court.
9.
For this order to be wholesome and effective order, we further direct the Appellant to file and serve the Supplementary Record of Appeal within thirty (30) days from the date hereof. The Deputy Registrar of this court to follow-up with the Court of Appeal Registry to obtain the certified order and proceedings of the said court.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/19/eng@2020-09-03
Civil Application 4 of 2020,Kiarie & 2 others v Administrator of the Estate  of John Wallace Mathare (Deceased) & 2 others (Civil Application 4 of 2020) [2020] KESC 32 (KLR) (11 August 2020) (Order),Order,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",3 September 2020,2020.0,Nairobi,Civil,Kiarie & 2 others v Administrator of the Estate  of John Wallace Mathare (Deceased) & 2 others,[2020] KESC 32 (KLR)               ,,"On 4th August 2020, this Court delivered a Ruling dismissing this application, allowing a Preliminary Objection by the 1st and 2nd Respondents. The application was supported by the affidavit of the Charles Karathe Kiarie sworn on 27th February 2020. In the Ruling at paragraph [1] we erroneously indicated that the supporting affidavit was sworn on “30th May 2017”. Further, at paragraph [10], we indicated that the Preliminary Objection had been filed on “20th of June 2020” which was an error as the same was filed on 11th of June 2020. Lastly, in the final orders at paragraph [21], order (a) is to the effect that “[T]he application dated 30th May 2017 is hereby dismissed”. This is an inadvertent error as the application subject of our Ruling was dated 27th February, 2020.","Section 21(4) of the Supreme Court Act clothes this Court with general powers to correct any apparent errors in its Judgements, Rulings and/or Orders as follows:General Powers....
2)
. . .
(3)
. . .
(4)
Within fourteen days of delivery of its judgment, ruling or order, the Court may, on its own motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order and such correction shall constitute part of the judgment, ruling or order of the Court.
3.
As a result, we hereby Order as follows:
i)
Paragraph [1] is corrected by deleting the date “30th May, 2017” and inserting therein the date “27th February 2020”;
ii)
Paragraph [10] is corrected by deleting the date “20th of June 2020” and inserting therein the date “11th of June 2020”; and lastly,
iii)
Paragraph [21] is corrected by deleting order (a) that reads “The Application dated 30th May 2017 is hereby dismissed” and inserting a new order (a) thus:
""The Application dated 27th February 2020 is hereby dismissed”.
4.
This Ruling is accordingly amended, and this Order shall constitute part of the Ruling of the Court.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/32/eng@2020-08-11
Petition 28 of 2019,Langat v Kericho County Assembly Committee on Appointments & 2 others (Petition 28 of 2019) [2020] KESC 34 (KLR) (6 August 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",6 August 2020,2020.0,Nairobi,Civil,Langat v Kericho County Assembly Committee on Appointments & 2 others,[2020] KESC 34 (KLR)               ,,"The County Government of Kericho by way of an advertisement invited suitable candidates to apply for various positions in the county executive committee. Following the advertisement, the appellant applied to be the member of the education, culture and social services committee. He was successful and his name, alongside nine others, was submitted to the 3rd respondent by the Governor of Kericho County (Governor) for vetting. During the vetting, the appellant’s name was rejected for appointment for two reasons: that he lacked the experience for management of ECDE and village polytechnics and that he was related to a nominee for finance and economic planning. Aggrieved by the decision, the appellant filed a petition before the Employment and Labour Relations Court terming the reasons for his rejection as unconstitutional.The appellant sought for among others a declaration that the proceedings of the 3rd respondent (county assembly) rejecting his appointment was void and prohibitory orders against the Governor from presenting to the Speaker of the county assembly any fresh names of nominees for approval by the county assembly for appointment as members of Kericho County Executive Committee. The Employment and Labour Relations Court granted all the prayers sought by the appellant. Dissatisfied by that decision, the respondents filed an appeal at the Court of Appeal which allowed the appeal and set aside the Employment and Labour Relations Court orders. Aggrieved by the Court of Appeal’s decision the appellant filed the instant appeal.","The test to evaluate the jurisdictional standing of the court in handling the appeal was whether the appeal raised a question of constitutional interpretation or application, and whether the same had been canvassed in the superior courts and had progressed through the normal appellate mechanism so as to reach the court by way of an appeal as contemplated under article 163(4)(a) of the Constitution. The issue of the constitutionality of the respondents’ decision in rejecting the name of the appellant in the County Executive Committee was consistent from the Employment and Labour Relations Court to the Court of Appeal and to the court. Consequently, the appeal fell within the ambit of article 163(4)(a) of the Constitution.Article 176(2) of the Constitution mandated every county government to decentralize its functions and the provision of its services to the extent that it was efficient and practicable to do so. County executive committees thus comprised members appointed by the county governor, with the approval of the assembly, and who were not members of the assembly as provided for under article 179(2)(b) of the Constitution.
The procedure for public appointments was governed by the Public Appointments Act No. 33 of 2011. Section 3 of the Public Appointments Act provided that all appointments under the Constitution or any other law for which the approval of Parliament was required would not be made unless the appointment was approved or deemed to have been approved by Parliament. Section 5 of the Act set the procedure for nominating a candidate for a public appointment, upon nomination, under section 5, a candidate whose position required approval by Parliament had to undergo the approval hearing as set out in section 6 of the Act. Accordingly, section 7 of the Act provided that an approval hearing had to focus on a candidate’s academic credentials, professional training and experience, personal integrity and background. When approving a candidate, the House of Parliament had to be guided by the procedure used to arrive at the nominee; any constitutional or statutory requirements to the office in question; and the suitability of the nominee for the appointment proposed having regard to whether the nominee’s abilities, experience and qualities met the needs of the body to which nomination was being made.
On rejection of a nomination, section 10 of the Public Appointments Act provided that where the nomination of a candidate was rejected by Parliament, the appointing authority could submit to the relevant House the name of another candidate, and the procedure for approval was specified in the Act. In the context of county government appointments under section 35 of the County Governments Act No. 17 of 2012, the governor should, when nominating members of the executive committee, ensure that to the fullest extent possible, the composition of the executive committee reflected the community and cultural diversity of the county; and took into account the principles of affirmative action as provided for in the Constitution. The county assembly was mandated to ensure that all nominations for appointments to the executive committee took into account two thirds-gender rule, representation of minorities, marginalized groups and communities and community and cultural diversity recognized in Kenya among other considerations.
A county assembly could reject the name of a nominee if it failed the test set out in section 35 of the County Governments Act and the provisions of the Public Appointments Act. The appellant did not fault the vetting process (which the constitutional and statutory threshold required) but the outcome. There was no reason to depart from the Court of Appeal’s finding.
Separation of powers was an integral principle in the Constitution: for instance, chapter 8 was devoted to the Legislature; chapter 9 to the Executive and chapter 10 on the Judiciary provided (article 160(1)) that: in the exercise of judicial authority, the Judiciary as constituted by article 161 was subject only to the Constitution and the law and was not to be subject to the control or direction of any person or authority. If courts decided only those cases that met certain justiciability requirements, they respected the spheres of their co-equal branches and minimized the troubling aspects of counter-majoritarian judicial review in a democratic society by maintaining a duly limited place in government.
The respondent’s decision to reject the appellant’s appointment did not flout any constitutional or statutory provisions. There was no reason to interfere with the manner in which the county assembly exercised its powers on the issue.
Appeal dismissed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/34/eng@2020-08-06
Petition 3 of 2020,Adega & 2 others v Kibos Distillers Limited & 5 others (Petition 3 of 2020) [2020] KESC 36 (KLR) (Constitutional and Human Rights) (4 August 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",4 August 2020,2020.0,Nairobi,Civil,Adega & 2 others v Kibos Distillers Limited & 5 others,[2020] KESC 36 (KLR)               ,,"There are three Preliminary Objections brought before this Court by the 1st, 2nd, 3rd, 5th and 6th Respondents. In the objections, the Respondents primarily challenge the jurisdiction of this Court to hear and determine the instant Petition pursuant to Article 163(4)(a) of the Constitution. For purposes of this Ruling, we shall briefly highlight the historical background of the matter before embarking on an analysis of each of the three objections and the salient points raised in each one of them.","From the foregoing, it is clear that the only issue for determination is whether this Court has the jurisdiction to hear and determine the instant Petition. The issue of jurisdiction has been canvassed severally before this Court since its inception. Jurisprudence on the same has been established through a number of decisions that have come before it, and therefore, as we have done before, we shall not tire in re-stating that jurisprudence.In R v. Karisa Chengo [2017] eKLR, this Court determined that;
By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”
35.
Further, in Samuel Kamau Macharia & another v. Kenya Commercial Bank Limited & 2 others (supra), we held that;
“
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
36.
This principle has been replicated in a plethora of determinations by this Court, of common cause being that, a Court, even this Court, cannot arrogate itself jurisdiction through crafts of interpretation (see Interim Independent Electoral Commission Constitutional (Advisory Opinion) Application No. 2 of 2011) and a Court ought to exercise its powers strictly within the jurisdictional limits (Peter Oduor Ngoge v. Francis Ole Kaparo & 5 others (supra)).
37.
In Lawrence Nduttu & 6000 others v. Kenya Breweries Ltd & another (supra), this Court determined that for an appeal to be said properly before it;
“
The appeal must originate from the Court of Appeal where issues for contestation revolved around the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163(4)(a). If an appeal is challenged at the preliminary level on grounds that it does not meet the threshold in Article 163(4)(a), the Court must determine that challenge before deciding whether to entertain the substantive appeal or not….It is the Court’s duty as the ultimate custodian of the Constitution to satisfy itself that the intended appeal meets the constitutional threshold.” [Emphasis added].
38.
It is therefore evident that the issues that this Court would only exercise its jurisdiction over pursuant to Article 163(4)(a) of the Constitution are issues involving the interpretation or application of the Constitution, which constitutional issues had been considered and determined by the Superior Courts.
39.
As it appears, the only issue of real controversy before this Court is the jurisdiction of the ELC to hear and determine a Petition that was filed by the Petitioners in Constitutional Petition No. 8 of 2018. The jurisdiction of the Court was challenged primarily on the premise that the Court had usurped the mandate of legislatively constituted bodies and conferred upon itself powers that it did not have. The challenge was therefore not on whether the Court had determined issued pertaining to constitutional dispensation, but whether the Court had that jurisdiction or power to hear and determine the Petition before it.
40.
The challenge was not on the Court’s mandate and powers as conferred upon it under Articles 70, 165(3) or 258 of the Constitution, but whether it had the powers to adjudicate on the issues presented before it pursuant to the provisions of the Environmental Management & Coordination Act, 2015.
41.
In Mukisa Biscuits Manufacturing Company Limited v. West End Distributors (1969) E.A. 696 Law JA stated;
“
A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary Point may dispose of the suit. Examples are objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” [Emphasis added].
42.
Following the above edict and in determining whether this Court has the jurisdiction to hear and determine the instant Petition, we need not delve into the realm of disputed facts, but restrict ourselves within the confines of the law. In determining such issues, such as jurisdiction, the only relevant issue to consider is the law, and nothing else. Turning to the issue at hand therefore, is the objection to the jurisdiction of this Court confined to issues of law with regards to the interpretation or application of the Constitution?
43.
Whilst it may be argued that the issue of jurisdiction of the Environment and Land Court is a constitutional question given that the Court is established by dint of Article 162(2)(b) of the Constitution, and through legislative enactment of the Sections 4 and 13 of the Environment and Land Court Act, 2011, that was however not the issue in contention before the superior Courts below.
44.
In the ELC, the Court held that it had the jurisdiction to hear and determine the Petition, not by dint of powers conferred upon it by Article 162(2)(b) of the Constitution or Sections 4 & 13 of the Environment and Land Court Act, 2011, but by dint of the provisions of the Environmental Management & Coordination Act, and more particularly, Sections 129(1) and 130 thereof. The Court then went on to justify its usurpation of the mandate of the National Environmental Tribunal and the National Environmental Complaints Committee, by citing Articles 23, 42, 47, 69 & 70 of the Constitution. The Court as was stated by the Court of Appeal contradicted itself by determining that some of the issues that were before it could be properly ventilated before the other legislatively mandated tribunals under the Environmental Management & Coordination Act, but chose to rather strangely arrogate upon itself the mandate to hear and determine those same issues.
45.
On its part, the appellate Court made a categorical finding that the Court did not have the jurisdiction to hear and determine the Petition, not pursuant to constitutional conferment of jurisdiction, but that the Court did not have the mandate to determine issues that could have been adjudicated in other appropriate forums. On the issue of jurisdiction, which the Petitioners argue is nonetheless a constitutional issue, the appellate Court made no reference to the Constitution, but relied on the provisions of Sections 129(1), (3), 130, 130(5) of the Environmental Management & Coordination Act in allowing the appeal.
46.
There was thus no determination made by any of the Superior Courts with regards to the jurisdiction of the Environment and Land Court in reference to the Constitution. In both their determinations on the issue of jurisdiction, they relied solely on the provisions of the Environmental Management & Coordination Act, with peripheral reference to the Constitution to buttress their decisions. It is manifestly evident from the foregoing that, where the interpretation or application of the Constitution has only but a limited bearing on the merits of the main cause, then the jurisdiction of this Court may not be properly invoked. (See Erad Supplies and General Contractors Ltd v. National Cereals & Produce Board (supra)).
47.
Further, in Stanley Mombo Amuti v. Ethics and Anti-Corruption Commission [2020] eKLR, we observed that;
“
In Erad, we specifically stated that where the interpretation or application of the Constitution has only but a limited bearing on the merits of the main cause, then the jurisdiction of this Court may not be properly invoked. Indeed, in Aviation and Allied Workers Union (supra) we added that the mere reference to the rich generality of constitutional principle as the Court of Appeal did in the present case, is not a sufficient ground to invoke Article 163(4)(a). The same must be said of the present cause.
It is thus our finding in the above context that reference to Articles 40 and 50 of the Constitution were introduced by the Appellant at the Court of Appeal and even then, peripherally so. The Court of Appeal thereafter rendered itself in passing only and the bulk of its Judgment was saved to an evaluation of the evidence on record in the context of Sections 26 and 55 of ACECA and not the Constitution per se.” [paras. 17 & 18].
48.
Both Superior Courts, in our view, therefore made determinations primarily on an interrogation and adjudication of statutory provisions and minimal reference to the Constitution. It cannot thus be said that the issues were determined in consideration and pursuant to the interpretation or application of the Constitution to therefore warrant an appeal to this Court under Article 163(4)(a) of the Constitution.
D. Appropriate Reliefs
49.
As was also noted by the Petitioners, the issue of jurisdiction and discretion are distinct. Be as it may, the two are nonetheless inextricably intertwined; it would seem incongruous to discuss one without referring to or including the other. Such is the extent that these two quite seemingly innocuous terms are referred to quite often, and rather mistakenly, interchangeably. But for purposes of this present issue, jurisdiction, as referred to by the Petitioners, would denote whether the adjudicatory body has the power to entertain the proceedings and, discretion, to be whether such, upon determination that it has such powers, chose to exercise such powers or not.
50.
It would therefore seem that the Superior Court, determined, quite incorrectly, that it had the power or jurisdiction to hear and determine the Petition, which although raised issues that were clearly within its purview, were also intertwined with other issues which were rather obviously not within its jurisdiction, and which could have been effectively determined by another legislatively established tribunal, in this instance two bodies, the National Environmental Tribunal and the National Environmental Complaints Committee.
51.
The trial Court, as did the appellate Court, correctly determined that the Petition was multifaceted, and presented issues in an omnibus manner. The point of divergence between the two Superior Courts was where the trial Court then went further to determine that these multifaceted issues could be determined by the Court “in the interests of justice.” It would seem that the ELC had failed to appreciate that there were properly constituted institutions that were mandated to hear and determine the issues, but instead chose to arrogate to itself the jurisdiction to hear and determine all the issues raised in the Petition. The Petitioners stated that the Superior Court correctly relied on the doctrine of judicial abstention, and exercised it discretion to hear and determine the Petition.
52.
Judicial abstention, as with judicial restraint, is a doctrine not founded in constitutional or statutory provisions, but one that has been established through common law practice. It provides that a Court, though it may be vested with the requisite and sweeping jurisdiction to hear and determine certain issues as may be presented before it for adjudication, should nonetheless exercise restraint or refrain itself from making such determination, if there would be other appropriate legislatively mandated institutions and mechanism.
53.
The abstention doctrine, also known as the Pullman doctrine, was deliberately first reviewed by the US Supreme Court in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 61 S. Ct. 643, 85 L. Ed. 971 (1941). The doctrine, and as applied within the context of the US legal system, allows federal courts to decline to hear cases concerning federal issues where the case can also be resolved with reference to a state-based legal principle. The Supreme Court, in an opinion by Justice Brennan in England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964) also noted that a State Court determination would indeed bind the federal court. The proper procedure, the Court determined, is to give notice that the federal issue is contended, but to expressly reserve the claim on the federal issue for the federal court. If such a reservation is made, the parties can return to the federal court, even if the State Court makes a ruling on the issue.
54
Applying these principles to the instant Petition, the more favorable relief that the Superior Court should have issued was to reserve the constitutional issues on the rights to a clean and healthy environment, pending the determination of the issue with regards to the issuance of EIA licenses by the 4th Respondent to the 1st, 2nd and 3rd Respondents. The Court should have reserved the issues pending the outcome of the decision of the Tribunal, thereby affording any aggrieved party the opportunity to appeal to the Court. It would then have determined the reserved issues, alongside any of the appealed matter, if at all, thus ensuring the parties right to a fair hearing under Article 50 of the Constitution was protected.
55.
The Court of Appeal, in our view, gave quite an elaborate and definitive definition pertaining to the jurisdiction of the trial Court in hearing and determining the Petition. However, once it had established that the ELC did not have the jurisdiction to hear and determine the Petition, the appellate Court should at that juncture issued appropriate remedies, which could have included, but not limited to, remitting back the matter to the appropriate institutions for deliberation and determination. Also, once it had determined that the ELC did not have the jurisdiction to hear and determine the issues before it, it should have held that any determination made was void ab initio, and that the appellate Court therefore and with respect failed to properly exercise its discretion and supervisory mandate in this instance.
E. Disposition
56.
Having considered the three preliminary objections by the 1st, 2nd, 3rd, 5th and 6th Respondents as well as submissions, and the submissions by the Petitioners, we make the following orders;
(a)
The Preliminary Objections by the 1st, 2nd, 3rd, 5th and 6th Respondents are hereby upheld
(b)
The Petition is hereby struck out save that, noting the nature of the matter, the Petitioners are at liberty to pursue their claims at the appropriate forum, taking guidance from this Judgment and that of the Court of Appeal.
(c)
Each party to bear its own costs.",Struck out,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/36/eng@2020-08-04
Petition 1 of 2020,Attorney General v Zinj Limited (Petition 1 of 2020) [2020] KESC 42 (KLR) (Civ) (4 August 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",4 August 2020,2020.0,Nairobi,Civil,Attorney General v Zinj Limited,[2020] KESC 42 (KLR)               ,,"UPON reading the Notice of Motion by the Petitioner dated 3rd February 2020 and filed on 6th February 2020 which application is brought pursuant to the provisions of Articles 159(2)(d) & 163(4)(a) of the Constitution, Sections 3, 21(2) & 3 of the Supreme Court Act, 2012 and Rules 23, 26, 33(6) & (7), 34 and 55 of the Supreme Court Rules, 2012 and in which the Petitioner seeks enlargement of time to file its Supplementary Record of Appeal; and","In The Circumstances,we exercise discretion and grant the Petitioner’s Notice of Motion dated 3rd February 2020. Conversely, we hereby disallow the Respondent’s application dated 26th May 2020 as it would have no merit once the former has been allowed.In the event, we now make Orders as follows;
(a)
The Notice of Motion by the Petitioner dated 3rd February 2020 and filed on 6th February 2020 is hereby allowed.
(b)
The Supplementary Record of Appeal is deemed as filed as the Petitioner submitted that it had already filed certified copies of proceedings from the Court of Appeal in Civil Appeal No. 56 of 2018.
(c)
The Application by the Respondent dated 26th May 2020 and filed on 3rd June 2020 is hereby dismissed; and
(d)
Each party shall bear its own costs in both Applications.
11.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/42/eng@2020-08-04
Petition 1 of 2018,Institute for Social Accountability & another v National Assembly of Kenya & 4 others (Petition 1 of 2018) [2020] KESC 74 (KLR) (4 August 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",4 August 2020,2020.0,Nairobi,Civil,Institute for Social Accountability & another v National Assembly of Kenya & 4 others,[2020] KESC 74 (KLR)               ,,"On November 8, 2019, we delivered a ruling on the appellants’ Notice of Motion application dated 30th January, 2018 and lodged in the Supreme Court Registry on 31st January, 2018 allowing the application in the following terms:aThe Application dated 30th January, 2018 is hereby allowed;bThe Applicants shall file its Supplementary Record of appeal containing the Certified Order of the Court of Appeal and the typed proceedings within 7 days of receipt of those documents; andcCosts shall be in the cause.Following the said ruling, the appellants lodged a supplementary record of appeal on 14th November 2019 incorporating the order issued by the Court of Appeal; certified proceedings by Honourable Mr. Justice Githinji and Honourable Lady Justice H.M. Okwengu and a copy of the letter dated 4th September 2019 to the Deputy Registrar requesting for the exclusion of proceedings by Justice Rtd G.B.M. Kariuki from the intended supplementary record of appeal for non-availability and copies of correspondence between the appellants and the Court of Appeal registry.","Upon considering the two rival applications, the issue that emerges for our determination is whether or not to exclude the trial notes by Justice Rtd G.B.M. Kariuki of the Court of Appeal. This determination will also address the issue on whether the record of appeal should be struck out as sought by the 4th respondent.In considering this issue, we note that our ruling of 8th November 2019 allowed the filing of the Supplementary record within 7 days of receipt of those documents. Accordingly, the filing of the supplementary record was dependent on the documents being availed by the Court of Appeal. This presupposed that all the documents would have been made available to the appellants at the same time. It turned out otherwise. If we understand the 4th respondent correctly, it is his contention that the appellants should not have filed the supplementary record containing documents already received from the Court of Appeal despite our ruling until all the documents were received by them. With respect, this is untenable. We need not belabour the fact that the appellants exercised due diligence and bear no fault in the lack of the said trial notes, a situation that the 4th respondent does not challenge.
12
This is compounded by the fact that Justice Rtd G.B.M. Kariuki has since retired from public service as a judge of the Court of Appeal. The appellants had as early as 4th September 2019 brought to the attention of this Court’s Deputy Registrar of the intention to exclude the notes by Justice Rtd G.B.M. Kariuki through an oral application. This is a position that was reiterated both in correspondence and when the matter was last mentioned before the Honourable Deputy Registrar who in the end asked the appellants to make a formal application. Rule 335 allows for the making of oral applications and the appellants were entitled to that option until otherwise directed, as they were eventually, to file a formal application.
13
In the intervening period, the 4th respondent applied to strike out the petition barely a day after the mention before the Deputy Registrar and three days before the appellants could file their formal application under Rule 335. We do not think that the application by the 4th respondent has been made in good faith under the circumstances considering its timing. The 4th respondent had reasonable notice that the appellants faced challenges in obtaining the trial notes of the now retired judge of the Court of Appeal and that they intended to seek court intervention, albeit orally, under Rule 335. To allow the action by the 4th respondent would be to validate sharp practice of law that this court would not sanction.
14
Further, in considering the nature of the document to be excluded, we are persuaded that the same is so far untraceable. There is no purpose to be served by stalling the appeal and continuing to wait for a document on which nothing might eventually turn. In addition, the judgment by the Court of Appeal, the subject of this appeal, is unanimous and the trial notes by Justice Rtd G.B.M. Kariuki are not likely to fundamentally affect the record. We maintain the position we adopted in Hamida Yaroi Shek Nuri case supra thus:
“
23
It therefore emerges that failure to include the ‘record of proceedings of the Court of Appeal’ in the Record of Appeal does not automatically render the appeal filed before this Court fatal. For if the law contemplates that such an omitted document may be filed later, the same law cannot be said to render a Record of Appeal with that omission outrightly fatal. However, we hasten to add that where a required document lacks in the Record of Appeal, devoid of a sufficient explanation for the omission, is a ground for the striking out of that Record of Appeal.”
15
In the Alfred Asidaga Mulima case supra we excused the applicant for a delay occasioned by the Court of Appeal. We are therefore inclined to exercise our discretion under Rule 335 in favour of the appellants and hasten to add that since the parties have already filed submissions on the substantive appeal and cross appeal, it is imperative that the legal and constitutional questions raised therein be determined on their merits in line with this Court’s mandate without further delay.
Determination
16
The upshot of our findings leads to our making the following Orders:
a
The Appellants’ application dated and filed on February 10, 2020 is allowed;
b
Consequently, the 4th Respondent’s application dated 5th February, 2020 and filed on February 7, 2020 is disallowed;
c
Costs shall be in the appeal.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/74/eng@2020-08-04
Reference 4 of 2017,"In the Matter of Speaker, County Assembly of Siaya County (Reference 4 of 2017) [2020] KESC 40 (KLR) (4 August 2020) (Advisory Opinion)",Advisory Opinion,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",4 August 2020,2020.0,Nairobi,Civil,"In the Matter of Speaker, County Assembly of Siaya County",[2020] KESC 40 (KLR),,"The County Assembly of Siaya County had faced challenges in discharging its role under the Constitution and the County Government Act with regard to the powers of the County Assembly in approving/vetting members of the County Executive Committees already serving their terms, whenever the Governor decided to move them to a different portfolio. The pertinent issue was whether a County Governor had absolute powers to re-deploy members of County Executive Committees without the approval of the County Assembly. Faced with that issue the applicant approached the Supreme Court for an advisory opinion.","The Supreme Court was not a legal adviser of State organs. The scope of an advisory opinion under article 163(6) of the Constitution did not extend to offering legal advice. The jurisdiction vested in the Supreme Court was to offer advisory opinion, and even then, that jurisdiction was circumscribed.A matter for advisory opinion was one not suitable for the ordinary dispute resolution mechanism; with pleadings, and progressing from the lowest to the highest court. The matter for advisory opinion had to also be urgent and entail the danger of paralysis to the institution concerned. The matter suitable for advisory opinion must be one that did not flow from any contest of rights or claims. The instant matter did not qualify for an advisory opinion.
The instant matter was a justiciable live issue in Siaya County on the varied interpretation of the vetting provisions in the Constitution as well as the County Governments Act and the Public Appointments (County Assemblies Approval) Act. The Supreme Court had to guard against improper transformation of normal disputed issues for ordinary litigation into advisory opinion causes, as the court had to be disinclined to take a position in discord with the core principles of the Constitution. Contested justiciable issues should be canvassed before the High Court and should only reach the Supreme Court through the appellate process where it was necessary and appropriate.
 
Reference dismissed; each party was to bear its own costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/40/eng@2020-08-04
Reference 2 of 2019,"In the Matter of Speakers, County Assemblies of Nandi, Kericho & Meru Counties (Reference 2 of 2019) [2020] KESC 41 (KLR) (4 August 2020) (Advisory Opinion)",Advisory Opinion,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",4 August 2020,2020.0,Nairobi,Civil,"In the Matter of Speakers, County Assemblies of Nandi, Kericho & Meru Counties",[2020] KESC 41 (KLR)               ,,"The Speakers of the County Assemblies of Nandi, Kericho and Meru (the applicants) sought the Supreme Court’s advisory opinion on whether the Constitution had the power to limit the possible grounds for removal of the speaker of a County Assembly.","A matter for advisory opinion had to be one of great public importance which bore novelty, and ill-fits the conventional dispute-settlement scheme and called for expeditious resolution; or it had to be a matter that raised a variety of structural, management and operational challenges unbeknown to traditional dispute settlement. The matter must therefore be urgent portending a paralysis to the institution concerned unless it was resolved immediately.The Supreme Court had to guard against improper transformation of normal dispute issues for ordinary litigation into advisory opinion causes, as the court had to be disinclined to take a position in discord with the core principles of the Constitution.
There was a contested justiciable issue that had been canvassed before the High Court although it was not clear if it had been substantially determined by the court. As such the issue could only come to the Supreme Court through the appellate process if appropriate and necessary. If the High Court could not provide relief, the parties should seek legislative intervention. The instant matter was not only justiciable and fit for trial in the lower courts in the normal way but also res judicata. It was incompetent and an abuse of the court process.
Reference dismissed.
Orders
 Each party was to bear its own costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/41/eng@2020-08-04
Petition 38 of 2019,Jirongo v Soy Developers Limited & 9 others (Petition 38 of 2019) [2020] KESC 38 (KLR) (4 August 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",4 August 2020,2020.0,Nairobi,Civil,Jirongo v Soy Developers Limited & 9 others,[2020] KESC 38 (KLR)               ,,"The Petitioner’s Notice of Motion before the Court is dated 19th December 2019 and filed on 16th January 2020. It is brought under Articles 24, 48, 50 & 159(2)(d) of the Constitution, Sections 20 & 21 of the Supreme Court Act, Rules 3 & 18 of the Supreme Court Rules and all other enabling provisions of the law. The Petitioner seeks leave of this Court to adduce new and fresh evidence in this matter in which there are allegations of an incomplete sale transaction of property between the Petitioner and several of the Respondents leading to threat of arrest of the Petitioner.The application is premised on the following summarized grounds, inter alia;
(a)
That the new and fresh evidence could not, with any due diligence, have been discovered or adduced earlier because the Petitioner’s office file in this regard had been stolen meaning that the Petitioner could only look to the National Bank of Kenya Ltd to retrieve from its archives the payment details which the bank could not do during the period the matter was pending before the High Court and the Court of Appeal;
(b)
That the new and fresh evidence is exculpatory, totally destroying the very basis for the laying of purported criminal charges against the Petitioner;
(c)
That the evidence is credible and has officially been issued by the National Bank of Kenya Ltd and the Registrar of Companies;
(d)
That the additional evidence is not voluminous but consists only of five simple letters/documents and that the Respondents would have no difficulty whatsoever in responding to the new evidence;
(e)
That it is in the interest of justice that the new and fresh evidence is adduced for purposes of a just and fair determination of this matter; and
(f)
That there is no prejudice that can be occasioned to the Respondents at all but the Petitioner will suffer irreparable damage to his reputation and standing if he were to suffer the ignominy of standing trial for illegitimate criminal charges that should never have been laid at all in the first place.
3.
In the affidavit sworn by the Petitioner herein on 19th December 2019 and filed on 16th January 2020 in support of the application, he depones, further to reiterating the grounds adduced in support of his application, that the new evidence is dispositive of this matter as it negates entirely the alleged criminal complaint against him by certifying that there was compliance with the impugned sale agreement.
4.
He further deposes that the new and fresh evidence dating back to more that 27 years ago had now only been discovered and retrieved from the archives of the National Bank of Kenya Ltd (the bank) and could not have been adduced or presented to the superior Courts during the initial trial and subsequent appeal to the Court of Appeal.","In determining whether this Court has jurisdiction to grant leave to adduce additional evidence, none of the parties contested that this Court is vested with the requisite jurisdiction to hear and determine such an application.The above fact notwithstanding, we deem it fit to restate the law in that regard and as the basis for interrogating the application before us. We thus note that Rule 18 of the Court Rules reads;
(1)
The Court may in any proceedings, call for additional evidence.
(2)
A party seeking adduce to additional evidence under this rule shall make a formal application before the Court.
(3)
On any appeal from a decision of the Court of appeal, or any other court or tribunal acting in the exercise of its original jurisdiction, the Court shall have power—
(a)
to call for or receive any record on any matter connected with the proceedings before it;
(b)
to re-appraise the evidence and to draw inferences of fact; and
(c)
in its discretion, for sufficient reason, to take additional evidence or to direct that additional evidence be taken by the trial court or by the Registrar.
(4)
Where additional evidence is taken by the Court, it may be oral or by affidavit, and the Court may allow cross-examination of any witness.
(5)
Where additional evidence is taken by the trial court, the trial court shall certify such evidence to the Court, with a statement of its opinion on the credibility of the witness giving the additional evidence.
(6)
Where evidence is taken by the Registrar, the Registrar shall give statements of opinion on the credibility of the witness.
(7)
The parties to an appeal shall be entitled to be present when such additional evidence is taken.
27.
Section 21 (3) of the Supreme Court Act furthermore empowers us to make any order necessary for determining the real question in controversy in an appeal. The import of Section 21(3) of the Supreme Court Act was considered in Evans Kidero & 4 Others v. Ferdinand Ndungu Waititu & 4 Others SC Petition No. 18 & 20 of 2014; [2014] eKLR (Kidero). In the concurring Judgment of Njoki Ndungu SCJ at paras. 368-69 she delivered herself thus:
“
The upshot of this is that this Court may make the same kind of orders that the High Court is empowered to make under Articles 22 and 165, when the matter comes to the Supreme Court on appeal, as the Court would find fit. As alluded to earlier on these remedies include declarations of rights, injunctions, conservatory orders, declaration of invalidity of any law, orders for compensation, orders for judicial review or any other appropriate relief where rights and fundamental freedoms have been denied, violated or are threatened.
Taking all these legal provisions into consideration, it is manifest that this Court may make any order that the High Court has jurisdiction to make in the enforcement of rights and fundamental freedoms. This Court also has the latitude to make any order that would be necessary for determining the real question in issue in this appeal and to ensure that the principles of the Constitution are promoted - including an order for a witness to be cross-examined. I am alive to the fact that this is not a remedy that this Court would hastily grant but in light of the violation of constitutional rights that occurred it is the most appropriate remedy under the circumstances.” [Emphasis added]
28.
It is therefore, without belaboring the point any further, a fact that this Court has the jurisdiction to hear and determine an application for leave to adduce additional or new evidence. What is also apparent is that the exercise of that jurisdiction shall not be whimsical, and the Court would not be in haste in granting the same. It has to consider all the relevant prevailing circumstances and make such order as it would deem fit in the interests of justice.
ii. Whether leave to admit additional evidence should be granted in this matter
29.
In the Wajir case, this Court set out the principles that it would consider in considering an application for leave for additional or new evidence before the superior Courts. We are further minded to state that even with the said principles being the basis for grant of such leave, this Court would still determine each application on a case by case basis, and even so, act with restraint and abundance of caution in allowing additional evidence.
30.
The principles as developed in that case are that;
(a)
the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
(b)
it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
(c)
it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
(d)
Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
(e)
the evidence must be credible in the sense that it is capable of belief;
(f)
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
(g)
whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
(h)
where the additional evidence discloses a strong prima facie case of willful deception of the Court;
(i)
The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful.
(j)
A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.
(k)
The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.
31.
Contrasting these principles against the Petitioner’s application, it is manifest that the application does not meet the threshold set out above. We say so because the Petitioner has not “shown that the additional, new and fresh evidence could not have been obtained with reasonable diligence for use at the trial, was not within his knowledge, or could not have been produced at the time of the suit or petition.” This is evidenced by the letter written by the bank dated 20th November 2019 addressed to the Director, Banking Fraud Investigation Unit. In the said letter at para.2, it is stated, inter alia;
“
We wish to clarify that our response dated 14th August 2019 addressed to Mr. S. K Jirongo was on the basis of our review of the client’s statement of account against the transaction vouchers (customer copies) presented by the customer. For the avoidance of doubt, the statement of account does not indicate the beneficiaries of the two cheques (no. 853134 for amount KES 7,000,000 and no. 853135 for KES 1,000,000) debited from Cypper Enterprises Ltd’s account on 11th May 1992.” [Emphasis added].
32.
At para. 4(b), the bank further states;
“
In the absence of our records for the above transactions effected 27 years ago, we regret that we are unable to:-
a)
…
b)
Certify the vouchers received from Mr. S.K Jirongo since the same did not emanate from the bank as we cannot trace the originals in light of the above.” [Emphasis added].
33.
The above statement goes to show that the Petitioner did not satisfy the second ambit of the principle in the following manner: he had knowledge of the documents or evidence that he now seeks leave to adduce as new and fresh evidence. The letter from the bank states categorically that the authentication and review of the Petitioner’s statement of account was on the basis of the vouchers that he had provided them. Quite arguably, this goes against the Petitioner’s averments that he was unable to obtain records of documents as they had been destroyed, or that he had feverishly been searching for evidence, which by all accounts, was all along in his possession.
34.
Further, in the letter by the bank dated 14th August 2019 addressed to the Petitioner and annexed to the Petitioner’s affidavit and marked as “CSKJ-1”, it is noted that the bank was responding to an earlier letter by the Petitioner dated 2nd August 2019. In the last paragraph of the letter, it is stated, inter alia;
“
We have attached the statement of account for the period of your reference. Whereas 27 years have lapsed since the transactions were processed, we hope that the information that we have retrieved will be of help to you. Please do not hesitate to contact us in case the need arises.”
35.
From that letter, and more particularly the aforementioned paragraph, it can be reasonably inferred or deduced that the bank was able to respond to the Petitioner’s request in a considerably short period of time, contrary to assertions made in para. 29 of his submissions that the bank had taken several months to recover copies of the missing payments made to the 1st, 2nd & 3rd Respondents.
36.
The Petitioner and the bank exchanged letters between 2nd August and 14th August 2019. Had the Petitioner shown that he had on several occasions prior to that date written to the bank requesting for the said documents over a considerable period of time, then this Court would have been inclined to believe that he had exercised due diligence in trying to retrieve the documents before, during trial and after the initial trial and subsequent appeal.
37.
In this instance, however, the Petitioner has only presented one letter which the bank responded to promptly and effectively. In Judicial Review No. 78 of 2016 instituted by the Petitioner at the High Court, it is not shown that he had presented to the trial Court that he had engaged the bank in retrieving the documents and letters that he now seeks leave to adduce into this Court. Further, it is not shown that there was a similar letter written to the bank during this period requesting for the said information. It is also not shown that during the appeal to the Court of Appeal, the Petitioner had sought out the bank to provide the information and documents that he needed to adduce before this Court.
38.
The Court of Appeal delivered judgment on 19th July 2019. It was only after the appellate Court had rendered its judgment that the Petitioner wrote to the bank on 2nd August 2019 seeking to have them provide the information that he now seeks to introduce as new and fresh evidence.
39.
There is also the issue of the letter from the Registrar of Companies dated 15th May 2018 and annexed to the Petitioner’s affidavit and marked as “CSKJ-2”.
The letter is in response to an earlier letter by Messrs. Wagara, Koyyoko & Co. Advocates dated 9th May 2018. Again, as with the letter from the bank referred to in the above paragraphs, the response time from the Registrar between 9th May and 15th May 2018 was a relatively short period. This information, it would seem, was within the purview of the Petitioner had he made any effort to obtain it earlier. We can only surmise that the Petitioner was indolent, and in an application premised on discretion, his indolence is his waterloo.
40.
In stating as above, we are innately aware that the interest of justice dictates that this Court must ensure that all parties to a dispute are accorded a fair hearing in order to resolve issues not only amicably, but also judiciously. However, we are unconvinced that the Petitioner was not accorded a fair trial at the Superior Courts below. We are perturbed, as we are curious at this strange turn of events where the Petitioner now wants to engage this Court in gerrymandering and cat games in the name of adducing additional evidence in an otherwise straight forward appeal.
41.
By seeking leave to admit new evidence, which had all along been in his possession going by the facts of the case, the Petitioner would be abusing, not only the discretion of this Court in exercise of its jurisdiction, but also its processes, and seeking, rather dubiously and ingeniously, to reconstitute his case which had been conclusively determined by the Superior Courts below. This Court is convinced that the Petitioner, being unsuccessful at the Court of Appeal, is now trying to amend and make corrections to his case by seeking to introduce supposed new and fresh evidence.
42.
Having shown that the Petitioner did not exercise any diligence in obtaining the evidence that he now seeks to adduce before this Court, and that he had prior knowledge to or actual possession of such evidence, this Court would be restrained to continue in examining the other grounds of the application, to wit, whether the evidence would have any relevance to the matter, or indeed of probative value, and that such an exercise would indeed be a frittering of this Court’s judicial time. Once it has been established that the Petitioner failed in demonstrating that he was unable, with due diligence to obtain the evidence, or that it was in his possession, as pronounced in the principles in Wajir, then the Court would be left with no other option but to dismiss his application. In stating so as above, our findings are limited to the application before us and not the pending appeal which would ultimately be determined on its merits.
E. Costs
43.
Costs, in the usual manner, follow the event, subject to the Court’s discretion as enunciated in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others SC Petition No. 4 of 2013; (2014) eKLR. Costs are therefore hereby awarded to the Respondents.
F. Orders
1.
The Petitioner’s Application dated 19th December 2019 is hereby dismissed; and
2.
Costs in are awarded to the Respondents
44.
Orders accordingly.",Dismised,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/38/eng@2020-08-04
Civil Application 1 of 2016,JKG v PWK (Civil Application 1 of 2016) [2020] KESC 33 (KLR) (4 August 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",4 August 2020,2020.0,Nairobi,Civil,JKG v PWK,[2020] KESC 33 (KLR)               ,,"Before Court is a Notice of Motion dated 30th May, 2017 seeking to review the two-judge-bench (Ibrahim & Wanjala, SCJJ) decision of this Court delivered on 24th March, 2017 and to reconsider afresh the applicant’s application dated 19th January, 2016. The review application is brought under Section 3(a) and (e) of the Supreme Court Act; Rules 3(2), (4) and (5), 51(2) of the Supreme Court Rules, 2012; Article 159(2)(d) of the Constitution of Kenya and all other applicable provisions of the law. It is supported by the applicant’s affidavit sworn on 30th May 2017.","Besides Section 24(2) of the Supreme Court Act which grants this Court jurisdiction to review the decision of a single Judge, in Fredrick Otieno Outa v Jared Odoyo Okell & 3 others [2017] eKLR, this Court held that it can also review such decisions under its inherent jurisdiction. That, however, is not a carte blanche jurisdiction to review all and every decision of a single judge or limited bench of this Court.Since a review of the decision of a single judge or limited bench of this Court will entail interference with the exercise of a judge(s)’s discretion, on the authority of the Court of Appeal for Eastern Africa in Shah v. Mbogo & Another [1967] EA 116, which jurisprudence was affirmed by this Court in Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR, such interference is permitted in exceptional circumstances. What are those circumstances?
11.
Before we outline the circumstances in which a review can be undertaken, we need to bear in mind the fact that a review of a decision of a single judge or judges of limited bench of this Court by a bench of five or more, is not an appeal. There can be no appeal from the decision of a single Judge or limited bench of this Court to the full Court. To allow such an appeal will not only be an abuse of the court process but it will also lead to endless litigation and clog the system. As this Court stated in Parliamentary Service Commission v. Wambora & Others, [2018] eKLR, such a review is also not meant to grant an applicant a second bite at the cherry; it is not a regurgitation of the matter that was before a single judge or limited bench. The focus of such review is the decision of the single judge or limited bench and not the merits of the substantive application that was the subject of the decision under review.
12.
For such an application to succeed, the applicant must satisfactorily demonstrate that in reaching his/their decision, the judge(s) acted whimsically or misdirected himself or themselves in the exercise of his or their discretion and as a result reached a manifestly wrong decision causing apparent injustice.
13.
The applicant’s application dated 19th January, 2016 was two pronged: review of the Court of Appeal’s failure to certify that the applicant’s intended appeal involved a matter of general public importance, and leave to appeal out of time. Having perused the ruling of 24th March 2017, we find that the two-judge-bench considered the applicant’s prayer for leave to appeal out of time and dismissed it for being unmeritorious. We concur with the two Judges that the applicant’s financial difficulties and/or his Advocate’s misapprehension of the law are not reasonable grounds for granting extension of time to appeals out of time.
14.
We, however, find that the two Judges inadvertently failed to consider the second prayer that the applicant’s intended appeal involved a matter of general public importance. In the circumstances, we allow the applicant’s review application to that extent and now wish to consider that prayer on its merits.
15.
On certification, the applicant’s case in the application dated 19th January 2016 was fairly simple and straightforward: on the locus classicus decision of the English House of Lords in Salomon v. Salomon (1897) AC 22, a limited liability company is a legal personality, separate and distinct from its shareholders. As such, the applicant contends, it was erroneous for the Court of Appeal to hold that property owned by a limited liability company is available for distribution between husband and wife as matrimonial property. He therefore urges us to review the Court of Appeal’s said decision and grant him certification to appeal for this Court to re-affirm the law in Salomon v. Salomon (1897) AC 22, a decision that has stood the test of time and applied in many cases in this country including S.N.K VS M.S.K & 5 Others (2015) eKLR. He further urges that this Court’s pronouncement and resolution of that uncertainty in the law occasioned by contradictory decisions, will transcend his interest in this matter and also benefit the public at large.
16.
On her part, the respondent cites this Court’s decision in Malcolm Bell Vs Daniel Toroitich Arap Moi & Another [2013] eKLR and argues that the appellate jurisdiction of this Court should not be extended to mere clarification of contradictions in court decisions. In the circumstances, the respondent urges us to dismiss this application with costs.
F. DETERMINATION
17.
We have considered the application, the grounds and the written submissions in support and in opposition to it. As this Court stated in Malcolm Bell Vs Daniel Toroitich Arap Moi & Another (supra), “it is now sufficiently clear that as a matter of principle and judicial policy, the appellate jurisdiction of the Supreme Court is not to be invoked … merely for the purpose of rectifying errors with regard to matters of settled law.” As such, contradictory decisions of the Court of Appeal cannot be the basis for granting certification.
18.
At any rate, in this matter, the issue of whether property owned by a limited liability company is available for distribution between husband and wife as matrimonial property was squarely before the High Court and the Court of Appeal.
The evidence on record was that the parties’ matrimonial home was built on the property known as Nyeri Municipality Block x/xxx. The other, known as Nyeri Municipality Block x/xxx, which was adjoining, was used as the kitchen garden prior to the applicant transferring both of them to [particulars withheld] Chemists Limited without any consideration at all. In its judgment dated 1st July 2015, the Court of Appeal, following its earlier decision in Muthembwa v. Muthembwa [2002] 1 EA 186, held that property that is “so closely linked to or mixed inextricably with property in the name of a company under the sole shareholding of a couple without outsiders to it”, and on which a matrimonial home is built, is and should be treated as matrimonial property available for distribution between husband and wife.
19.
We endorse that Court of Appeal decision and its later ruling dated 2nd December 2015, that the law on division of matrimonial property including properties registered in a company’s name is well settled and there is no uncertainty in it. As such, we find no warranty to review the Court of Appeal decision declining to certify the applicant’s intended appeal as involving a matter of general public importance requiring this Court’s consideration.
20.
The applicant, having initially partly succeeded in his application, we find that each party should bear its own costs of this application.
21.
Before we make final orders in this matter, it is imperative that the composition of the Court in this Ruling be explained.
22.
The two Judges (Ibrahim & Wanjala, SCJJ) whose decision is the subject of this review, are part of this Bench. It is pragmatic and good legal practice that where this Court sits as a full bench to review a decision of a single or limited bench, the Judge(s) whose decision, is the subject of review do not form part of the reviewing Bench. This rule is, however, not cast in stone.
23.
This is a collegial Court with a limited composition of seven Judges and a constitutional quorum of five Judges. Occasionally, not all the seven Judges may be available to sit to hear and determine cases before the Court. A Judge may be indisposed or unavailable due to one reason or the other such as bereavement or maternity/paternity leave. There may also be a vacancy in the Court. Does it mean that in such situations the Court suspends its operations? The answer is an emphatic no. To meet the constitutional quorum, it will, of necessity, require that a judge or judges whose decision is under review sit. In Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2013] eKLR the challenge caused by a vacancy was aptly captured and navigated by the majority of the Court as follows:
“
(15)
By Article 163(2) of the Constitution, the Supreme Court membership comprises seven Judges; and this Court is properly composed for normal hearings only when it has a quorum of five Judges. We take judicial notice that, for about a year now, the Court has had a vacancy of one member; and also that half of the current membership were previously in service in other superior Courts – and so having the possibility of having heard matters which could very well come up now before the Supreme Court. Recusal, in these circumstances, could create a quorum-deficit which renders it impossible for the Supreme Court to perform its prescribed constitutional functions.
(16)
Such a possibility would, in our view, be contrary to public policy and would be highly detrimental to the public interest, especially given the fact that the novel democratic undertaking of the new Constitution is squarely anchored firstly, on the superior Courts, and secondly, on the Supreme Court as the ultimate device of safeguard.
24.
In his concurrence in the same case, Ibrahim, SCJ, stated that in the case of a quorum deficit, the Judge(s) concerned are “allowed to sit and determine the matter under the doctrine of necessity to avoid a miscarriage of justice.”
25.
It is public knowledge that the Court has a vacancy, the Hon, Justice Ojwang’ having retired. It is for this reason, and in invocation of the doctrine of necessity, that the two judges whose decision is the subject of this application, formed part of the Bench in this matter.
26.
Having made that clarification and consequent upon our above stated view, we dismiss this application and make the following final orders:
(a)
The Application dated 30th May 2017 is hereby dismissed.
(b)
Each party shall bear its own costs of the application.
27.
Orders accordingly",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/33/eng@2020-08-04
Petition 41 of 2019,Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others (Petition 41 of 2019) [2020] KESC 75 (KLR) (4 August 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",4 August 2020,2020.0,Nairobi,Civil,Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others,[2020] KESC 75 (KLR)               ,,"Before the Court is a Petition of Appeal dated 30th October 2019, and lodged on 1st November 2019. The Appeal is against the decision of the Court of Appeal (Karanja, Odek & Kantai, JJ.A) in Civil Appeals No. 164 of 2013, delivered at Nairobi on the 19th July, 2019. The Appellate Court overturned the Judgment and Orders of the High Court (Lenaola J. as he then was), in Constitutional & Human Rights, Petition No 72 of 2011 delivered on 26th October 2012. The trial Court had dismissed the Respondents’ petition with costs and found that the Petitioners herein had acted within the law in demanding payment of excise duty on returnable containers, and that there was no breach of any Constitutional right against the 1st to 4th Respondents.","The jurisdiction of this Court under Article 163(4)(a) of the Constitution is clearly laid out in a long line of this Court’s decisions (see inter alia Lawrence Nduttu & 6000 Others vs Kenya Breweries Limited & Another SC Petition No. 3 of 2012 and Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others, [2014] eKLR (Munya 1). In determining whether its jurisdiction has been properly invoked under Article 163 (4) (a), the Court has to consider whether the appeal before it raises a question of Constitutional interpretation or application, and whether the question has been canvassed in the Superior Courts, progressing through the normal appellate mechanism so as to reach the Supreme Court by way of an appeal. It also has to determine whether in the alternative, a trajectory of Constitutional interpretation or application is evident in the court’s reasoning leading to the determination of the question.It is undoubtedly clear from the Court Record that this Petition of Appeal emanates from Constitutional Petition No. 72 of 2011, wherein the 1st to 4th Respondents were seeking a declaration that the assessment of excise duty and VAT together with the interest and penalties was unconstitutional and illegal. The Respondents also claimed their fundamental rights and freedoms under the Constitution had been violated.
10.
After hearing the parties, Lenaola J (as he then was) identified the main issues for determination namely: whether the matter was properly before the court; whether the respondent acted within the law and; and whether there was a breach of fundamental rights of fair administrative action and legitimate expectation. In a nutshell the learned Judge found that on the first issue, the Petitioners (Respondents herein) had properly invoked the Court’s jurisdiction. On the second issue, the learned Judge found that the respondents had acted within the law in demanding payment of excise duty on returnable containers. On the third issue, the trial Judge found that there was no breach of any Constitutional right against the 1st to 4th Respondents.
11.
Aggrieved by the Decision of the High Court, the 1st to 4th Respondents lodged an appeal in the Court of Appeal. Two grounds in the Memorandum of Appeal are relevant at this point, firstly; that the learned Judge erred in law when he failed to fully appreciate and apply the provisions of Article 210(1) of the Constitution and secondly, that the learned Judge erred in fact and law when he failed to appreciate the entire legislative history of Section 127C of the Customs and Excise Act which was at variance and disharmony with (sic) Article 210(1) of the Constitution.
12.
From the above summary, we find little difficulty in concluding that the issues before the High Court as well as the Court of Appeal involved the interpretation and application of the Constitution. Towards this end, the High Court interpreted and applied the provisions of Articles 22, 47 of the Constitution and Section 127C of the Customs and Excise Act as read with Article 210(1) of the Constitution, while the Court of Appeal interpreted and applied the provisions of Section 127C of the Customs and Excise Act as read together with Article 210(1) of the Constitution. The Respondents argument that the Court of Appeal only interpreted and applied the provisions of Section 127C of the Customs and Excise Act and not any Constitutional provisions is clearly untenable. In view of the reasons tendered, we find that this Court has jurisdiction in respect of this Appeal. Having so found, we have no option but to dismiss the Preliminary Objection.
13.
F. Orders
i.
The Notice of Motion Application dated 17th December 2019, is hereby dismissed.
ii.
The Costs of this Application shall be borne by the Applicants/Respondents.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/75/eng@2020-08-04
Civil Application 4 of 2020,Kiarie & 2 others v Administrator of the Estate of John Wallace Mathare (Deceased) & 2 others (Civil Application 4 of 2020) [2020] KESC 37 (KLR) (Civ) (4 August 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",4 August 2020,2020.0,Nairobi,Civil,Kiarie & 2 others v Administrator of the Estate of John Wallace Mathare (Deceased) & 2 others ,[2020] KESC 37 (KLR)               ,,"Before Court is a Notice of Motion dated 27th February, 2020 brought under Rules 21, 49(2) and 53 of the Supreme Court Rules, 2012; and Article 163 of the Constitution of Kenya, 2010 and supported by the affidavit Charles Karathe Kiarie sworn on 27th June 2020. It seeks to review the ruling a single-judge (S.C. Wanjala, SCJJ) made on 17th December, 2019 and to reconsider afresh the Applicants’ application made on 12th of June 2018.he application seeks orders:
a)
That this Honourable Court be pleased to extend the time for filing a Review application against the decision of his Lordship S.C Wanjala, J. delivered on the 17th of December 2019, disallowing extension of time for filing the Reference on Taxation against the two rulings delivered herein on the 13th of April 2018 by Hon D Ole Keiuwa.
b)
That if prayer (a) is allowed, this Honourable Court be pleased to vary and review the decision of his Lordship S.D Wanjala, J. delivered on the 17th of December 2019 disallowing extension of time for filing the References on taxation against the two rulings delivered herein on the 13th of April 2018 by Hon, D Ole Keiuwa.","We have considered the application as well as the grounds and the written submissions in support of and in opposition to it. On the first issue, the Applicants explain away the two delays as the time it took them to prepare the two applications for extension of time. As we have stated, it took them 27 days to prepare and file the first Reference and 30 days to prepare and file the second Reference.Considering the history of this matter which was filed in 1995, through High Court Civil Case (now ELC) No 2325 of 1995, like the single Judge of this Court, we find that the Applicant has not satisfactorily explained the two delays. Given the period of 7 days within which such references should be filed, the 27 and 30 days respectively taken to prepare the two References is unreasonable.
20.
Consequently, we dismiss this application with costs to the 1st and 2nd Respondents and make the following final orders:
(a)
The Application dated 27th Feb 2020 is hereby dismissed.
(b)
Each party shall bear its own costs of the application.
23.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/37/eng@2020-08-04
Petition 17 of 2019,Mulima & 2 others (Suing as Representatives of Ex-East African Airways Staff Welfare Association) v Attorney General & 8 others (Petition 17 of 2019) [2020] KESC 39 (KLR) (4 August 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",4 August 2020,2020.0,Nairobi,Civil,Mulima & 2 others (Suing as Representatives of Ex-East African Airways Staff Welfare Association) v Attorney General & 8 others,[2020] KESC 39 (KLR)               ,,"The petitioners who were former employees of the East African Airways Corporation (EAAC) which fell under the ambit of the East African Community (EAC) had filed a petition in the High Court (trial court). In the petition, they alleged violation of their constitutional rights under the Constitution as a result of non-payment of various amounts of money they alleged were due to them following the disbandment and dissolution of the EAC as well as the winding up of the EAAC. Their claim involved payment of emoluments accruing and owing to them as former employees of the defunct EAAC. They highlighted various provisions of the Constitution as the basis for their claim against the respondents.The trial court dismissed the petition stating that it was res judicata, the issues that it raised having been the subject of consideration by courts of competent jurisdiction. Aggrieved by the decision of the trial court, the petitioners moved the Court of Appeal where the appeal was dismissed on grounds that the matter was time-barred as the real issue in contest was one based on contractual and statutory obligations and not violation of the Constitution per se. Aggrieved by that decision, the petitioners filed the instant appeal.","The trial court and the appellate court in holding that there was no violation of any constitutional rights and that the claim arose from a contract of employment proceeded to interrogate the claims against the East African Community Mediation Agreement Act (EACMAA), a statute, and not any part of the Constitution. None interpreted or applied the Constitution in any substantive manner.Where a matter or claim was for restitution of emoluments and payments under statute, not of violated constitutional rights per se, then the Supreme Court would decline to assume jurisdiction under article 163(4)(a) of the Constitution. The instant claim was a civil claim against the respondents for unsettled or unpaid dues following the redundancy of the petitioners. The petitioners had not shown how the issues were of a constitutional nature, and hence, a requirement of them to make a determination on the same.
It was the applicability or otherwise of the EACMAA that was at the centre of the dispute and not the interpretation or application of the Constitution per se. None of the issues parties submitted on called for such interpretation or application of the Constitution in any substantive or even peripheral manner.
Having held that the issues before court were not constitutional in nature, there was no reason to delve into the other issues set out for determination. As long as EACMAA remained valid, the petitioners were at liberty to pursue their emoluments and pensions under that Act. The petitioners would as well pursue the trial court’s order directed at the National Bank of Kenya to pay retired staff of the EAC from funds it was holding.
A simple, otherwise straight forward claim for emoluments and pensions should never have taken almost 40 years to commence and prosecute.
Since the court had no jurisdiction, it would not address the place of the principle of res judicata in constitutional matters as well as the retrospectivity or otherwise of the Constitution.
Petition dismissed.
Orders
No orders as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/39/eng@2020-08-04
Petition 10 of 2018,Njenga v Republic & 3 others (Petition 10 of 2018) [2020] KESC 35 (KLR) (4 August 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",4 August 2020,2020.0,Nairobi,Criminal,Njenga v Republic & 3 others,[2020] KESC 35 (KLR)               ,,"The appellant filed for judicial review (mandamus) to compel the Minister and Commissioner of Lands to issue her title for land she claimed to have purchased from the Jacob Njenga Muiruri. The land had been transferred to the 4th respondent through what she claimed was unlawful means. Both the High Court and the Court of Appeal dismissed her claims. Dissatisfied, she appealed to the Supreme Court, asserting violations of her constitutional rights under article 40 of the Constitution. During the appeal, Njenga passed away, and her legal representatives took over the case.","Whereas judicial review orders were one of the remedies available to a party claiming violation of the Bill of Rights under article 23(3)(f) of the Constitution, the instant dispute was not one in which allegations of violation of fundamental rights were at the centre of the dispute. The judicial review application was filed under order LIII rules 1, 2 and 3 of the Civil Procedure Rules as well as section 3A of the Civil Procedure Rules. Nowhere in pleadings or submissions was the court called upon to interpret any part of the Constitution.The substantive prayers for mandamus, general and exemplary damages did not require the trial court, the Court of Appeal nor the Supreme Court to interpret or apply the Constitution as the question whether the title issued to A. S Waweru was unlawful did not require that action on the part of the Superior Courts below nor the Supreme Court.
The Supreme Court’s jurisdiction under article 163(4)(a) of the Constitution had not been met.
Appeal struck out; the appellant was to pay costs to the 4th respondent.",Struck Out,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/35/eng@2020-08-04
Petition 44 of 2019,Zubeidi v Active Partners Group Limited & 4 others (Petition 44 of 2019) [2020] KESC 73 (KLR) (4 August 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",4 August 2020,2020.0,Nairobi,Civil,Zubeidi v Active Partners Group Limited & 4 others,[2020] KESC 73 (KLR)               ,,"Before the Court is a Petition of Appeal dated 15th November 2019, and filed on 18th November 2019, under Articles 163(4)(a) of the Constitution of Kenya, Section 15(2) of the Supreme Court Act and Rules 9 & 33 of the Supreme Court Rules 2012; against the Court of Appeal’s decision (Koome, Sichale & J.Mohammed, JJ.A) in Civil Appeals Nos. 395 and 414 of 2018 (consolidated) delivered at Nairobi on the 8th November 2019. The Appellate Court upheld the High Court’s Ruling (Tuiyott J) in Civil Suit No 475 of 2016 delivered on 1st November 2017, setting aside a default Judgment but overturned a further Ruling delivered by the same Court on 29th May 2018, in effect finding that the trial Court lacked jurisdiction to entertain the suit before it.","As already settled in a long line of authorities by this Court, (see Lawrence Nduttu & 6000 Others vs Kenya Breweries Limited & Another S.C Petition No.3 of 2012; and Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others, [2014] eKLR (Munya 1) the Court has to consider whether the appeal raises a question of Constitutional interpretation or application, and whether the same has been canvassed in the Superior Courts, progressing through the normal appellate mechanism so as to reach the Supreme Court by way of an appeal. We have also to determine, in the alternative, whether a trajectory of Constitutional interpretation or application is evident in the Superior Courts’ reasoning leading to the determination of the question.In the present appeal, the Petitioner’s appeal emanates from two Rulings of the trial Court, the Ruling setting aside a default Judgment and the Ruling on the effect of contractual clauses, ousting the jurisdiction of courts in Kenya. A perusal of the pleadings before the courts and the decisions of both the High Court and the Court of Appeal leaves no doubt that in arriving at the decisions they did, the two Superior Courts did not advert to the Constitution by way of interpretation or application. On the contrary, all that the courts did was first, to determine whether the default Judgment ought to be set aside and secondly, to interpret the effect of a contractual clause. The petitioner has raised the issues of breach of Articles 27, 48 and 50 of the Constitution for the first time before this Court. The interpretation and application of these Articles was not in issue before either the High Court or the Court of Appeal.
9.
It follows from the foregoing, that the Petitioner has not properly invoked the jurisdiction of this Court under Article 163 (4) (a) of the Constitution. The Preliminary Objection is therefore well founded. Consequently, we make the following orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;
E. Orders
(i)
The Preliminary Objection dated 3rd February, 2020 is hereby allowed.
(ii)
The Petition of Appeal dated 15th November 2019, is hereby struck out.
(iii)
The costs of the proceedings in this Court shall be borne by the Petitioner herein.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/73/eng@2020-08-04
Petition 42 of 2018,Bellevue Development Company Ltd v Gikonyo & 3 others (Petition 42 of 2018) [2020] KESC 43 (KLR) (15 May 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",15 May 2020,2020.0,Nairobi,Civil,Bellevue Development Company Ltd v Gikonyo & 3 others,[2020] KESC 43 (KLR)               ,,"There was a dispute between the petitioner and the 4th respondent, and an arbitrator was appointed to determine the dispute. The arbitrator issued directions as to when the statement of claim was to be filed. The 4th respondent failed to comply with the directions and instead, filed an application seeking extension of time to file its statement of claim. The arbitrator did not issue any directions or orders on that application. The 4th respondent later on served the arbitrator and the petitioner with its statement of claim. The arbitrator issued a ruling stating that he had the jurisdiction to determine the dispute. Aggrieved by that decision, the petitioner filed a suit at the High Court which held that there was no valid claim before the arbitrator. No appeal was preferred against that judgment. Later on, the 3rd respondent was appointed as the sole arbitrator to handle the dispute. The petitioner subsequently filed an application at the High Court seeking to stop the arbitration proceedings.The 1st respondent issued a ruling determining that the arbitration proceedings before the previous arbitrator were distinct from those pending before the sole arbitrator and that they could proceed. In June 2014, the petitioner filed an application for review of the decision of the 1st respondent. The 2nd respondent, presiding over the review application dismissed the application. Aggrieved by the decisions of the 1st and 2nd respondents, the petitioner filed a petition at the High Court which held that it lacked the jurisdiction to hear and determine the matter as it sought to enquire into decisions of courts of equal status. The petitioner filed an appeal at the Court of Appeal, however, it did not pursue the appeal despite being issued with a hearing notice. The petitioner also filed an appeal from the judgment of the High Court contending that the 1st and 2nd respondents had acted in bad faith and breached its rights to fair trial. The Court of Appeal dismissed the petitioner’s appeal thus leading to the filing of the instant appeal.","Article 160(5) of the Constitution entrenched the immunity of judicial officers who acted in good faith. The immunity granted by article 160(5) encapsulated protection from legal proceedings founded on acts committed or omissions made by judges in the lawful performance of their judicial functions.The concept of judicial immunity was not without foundation. Judicial immunity was an important tenet in the delivery of justice and the maintenance of the rule of law. For the proper administration of justice, judges should freely express themselves in matters brought before them. A judge, as well as other judicial officers, were required to have confidence in carrying out their judicial functions without the fear that they would be prosecuted or harassed for their acts or omissions.
The rationale for judicial immunity was the preservation of independent decision-making capabilities of judicial officers; immunity for judicial acts was thus necessary so that judicial officers could make the sometimes controversial decisions that were their judicial obligation and mandate to make, independent of personal considerations, including fear of personal liability. The concept of judicial immunity was also an important aspect of judicial independence under the doctrine of the separation of powers. The protection offered to judicial officers in article 160(5) of the Constitution was inherent in the independence of the Judiciary as a state organ within the doctrine of separation of powers.
It would be repugnant to the cause of justice if judges acted in fear of legal actions being brought against them for decisions they made in the course of discharging their mandate. The immunity granted by article 160(5) of the Constitution was not necessarily for the benefit of the judicial officer concerned. It was for the public and in particular for litigants appearing before the courts.
Besides freedom of thought, expression and action, the other cardinal factor encapsulated in judicial immunity was finality. It would be a travesty of justice if disgruntled litigants were permitted to sue judges who ruled against them thus prolonging litigation unnecessarily and personalizing matters that judges ought not to have had a personal interest in.
There was a clear distinction between judicial immunity and impunity, and it was important that judicial officers understand that they needed not find themselves on the side of latter. Article 160(5) of the Constitution drew the line between immunity and impunity; the line crossed where acting lawfully and in good faith met willful and negligent abandonment of the oath of office to uphold the integrity and independence of the Judiciary and to dispense justice without fear or favour. Article 160(5) was not blind to that inherent distorted character between judicial immunity and impunity, and thus provided a resonating standard for judicial officers to act according to the tenets enunciated under the Constitution; to ensure that there was rule of law, protection of fundamental rights and freedoms in the Bill of Rights and to do justice to all. The latter point spoke to the lawful action qualification as it did to the good faith expectation.
Judicial immunity was meant to provide protection to judicial officers from third parties’ interference, influence or obstruction. Judicial immunity was also necessary to protect the reputation and perception of the Judiciary, to maintain the trust of the public and to ensure transparency and accountability. A judge acting in his official judicial capacity thus enjoyed immunity from liability for judicial acts performed within the scope of their jurisdiction.
Article 160(5) of the Constitution granted judicial officers immunity if they acted in good faith. The antithesis to acting in good faith would be to act in bad faith, with a willful intent to act dishonestly or unfaithfully in the performance of judicial acts. Bad faith included malicious or fraudulent, dishonest or perverse conduct as well as gross illegality. Bad faith existed only when the office-bearer acted with the specific intent to deceive, harm or prejudice another person or by proof of serious or gross recklessness that revealed a breakdown of the orderly exercise of authority so fundamental that absence of good faith could be reasonably inferred and bad faith presumed.
Besides acting in good faith there was a two-tiered approach to determining whether judicial immunity applied:-
whether the acts were judicial acts; and
whether the acts were acts performed by the judge in his judicial capacity.
Regardless of any alleged violation of due process, procedural errors did not deprive a judge of immunity because due process necessarily attached to any act performed in a judicial capacity.
There was a distinction between excess jurisdiction and clear and deliberate seizure of absent jurisdiction; the former connoted that the judicial officer did not apprehend his jurisdictional limits, and the latter elaborated the deliberate corrupt or malicious seizure of jurisdiction by judicial officers, with obvious consequences on the latter.
Save in a clear case of deliberate and unlawful usurpation or seizure of jurisdiction where none existed or some other glaring impropriety, if a judge acted in the honest belief that his act was within his jurisdiction, he was protected. While acting in that belief, the protection continued notwithstanding any error in his reason for doing the act or his method of doing it. As such, if a judge acting in his capacity as a judge, acted in good faith in the lawful performance of his duties, he had absolute immunity even when he acted in excess of his jurisdiction. The protection or immunity of a judge also went into administrative acts. The immunity accorded to a judge was absolute in the meaning attributed to the expression by article 160(5) of the Constitution.
Fraud was a serious quasi-criminal imputation, a judge whose conduct was fraudulent, dishonest or perverse, was a disgrace to the cause of justice. A judge’s act of bad faith undermined his or her integrity and fidelity to the judicial oath of office. Under the law, the remedy for a litigant making allegations of fraud, dishonesty and/or perversity lay, not in a suit against such a judge but in a petition to the Judicial Service Commission for removal from office under article 168 of the Constitution. Article 168 had an elaborate procedure which entitled both a complaining party and the subject judge the opportunity, both at the Commission and in a tribunal set up under article 168(5) thereof, to a fair hearing. A suit directly against a judge for alleged misconduct or misbehavior was never an expectation of the drafters of the Constitution.
A judge remained unquestionably immune as long as he did not take actions that intentionally and plainly prevented litigants from enjoying their constitutional and statutory rights. The duty imposed on a judge was only to recognize that his own decisions could sometimes be in error and to ensure that orders affecting important constitutional rights could be reviewed or appealed in another court. However, the conduct of a judge who acted mala fides or unlawfully could trigger proceedings before the Judicial Service Commission and could ultimately lead to his removal thus the need for extreme care in the enjoyment of immunity.
It could not be said that the petitioner was denied an opportunity to seek appellate or alternative relief from what it considered an affront to its constitutional right to a fair hearing under article 50 of the Constitution. Other than legal proceedings against the 1st and 2nd respondents, various avenues were available to it, and it was up to it to decide which avenue best suited its interests. The petitioner proffered an appeal to the Court of Appeal. For reasons unknown or unexplained, it chose not to pursue that appeal but instead filed another cause. The petitioner thus knew and initially chose the appeal mechanism as a means of seeking relief but later abandoned it. It could not therefore be heard to claim that it was denied an opportunity to be heard and that there was a violation of its constitutional rights under article 50.
No evidence was provided to support the claim that in dismissing the petitioner’s applications, the 1st and 2nd respondents acted in bad faith and without jurisdiction thus violating the petitioner’s rights to a fair trial in its dispute with the 4th respondent. That was not the act of a serious litigant or complainant even if the 1st and 2nd respondents had no judicial immunity.
Suing a judicial officer for rendering an unfavourable decision rather than appealing or seeking a review was a misconception and a step in the wrong direction on the part of the petitioner. At times, litigants could feel aggrieved by some of the decisions that judicial officers made. However, that was not in any way an exoneration of the petitioner in its actions. To seek relief by apportioning an unwarranted attack on the 1st and 2nd respondents, who were lawfully exercising their judicial function, was not only tantamount to harassment and intimidation of the judicial officers, but also a red herring that the petitioner conceived to deny or delay the 4th respondent’s right to a remedy under their contract.
To amount to impunity, a judge’s act had to be a clear and deliberate seizure of absent jurisdiction. If proved, such acts would not only be an attack on the integrity and conduct of the 1st and 2nd respondents, but also a reprehensible affront to the cause of justice and the independence of the Judiciary. Such acts were tantamount to tarnishing the image of the Judiciary, violating its integrity and putting all judicial officers into disrepute. A mere statement that the 1st and 2nd respondents acted with impunity did not suffice. The petitioner had not brought forth any iota of evidence, let alone credible evidence that the 1st and 2nd respondents acted in bad faith or against the law.
The 1st and 2nd respondents as judges of the High Court acted in accordance to and within their jurisdictional limits under article 165 of the Constitution. They could have rendered decisions which were unpalatable to the petitioner, but that too was within their judicial function. The petitioner chose to challenge those decisions through an unorthodox approach that could not be lauded but ought instead to be condemned.
Petition dismissed; petitioner to bear the costs of all the respondents, both in the court and the superior courts below.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/43/eng@2020-05-15
Reference 3 of 2019,In the matter of Council of Governors & 47 others (Reference 3 of 2019) [2020] KESC 65 (KLR) (Civ) (15 May 2020) (Advisory Opinion) (with dissent),Advisory Opinion,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",15 May 2020,2020.0,Nairobi,Civil,In the matter of Council of Governors & 47 others,[2020] KESC 65 (KLR)               ,,The applicants were the Council of County Governors and all the 47 County Governments of Kenya. They sought an advisory opinion pursuant to article 163(6) of the Constitution from the Supreme Court with respect to four main issues. All the issues revolved around division of revenue.,"The Commission on Revenue Allocation (CRA) was established under article 215 (1) of the Constitution. Under article 216(1) of the Constitution, its principal function was to make recommendations for the equitable sharing of revenue raised by the National Government between the national and county governments and among the county governments.The term recommendation as used in article 216 of the Constitution should first and foremost be given its literal and natural meaning. A recommendation was a suggestion or proposal for a certain cause of action. Such a proposal would not ordinarily bind the person or entity that it addressed. However, categories of recommendation differ in their meaning, nature and effect, depending on the context in which they were deployed.
It would be inappropriate to categorize the recommendations of the CRA on the sharing of national revenue as mere suggestions or proposals. The recommendations had to be accorded serious consideration by both Houses while debating the Division of Revenue Bill.
A reading of articles 205, 204(4) and 218 of the Constitution left no doubt that the Constitution placed a very high premium on the recommendations of the CRA. Once those recommendations were tabled in Parliament, they had to be accorded due consideration before voting took place in either of the Houses, on the Division of Revenue Bill and the County Allocation of Revenue Bill. Therefore, if either of the two Houses passed a Bill envisaged under article 205 of the Constitution without considering the recommendations of the CRA, the resultant legislation would be unconstitutional.
Article 218(2) of the Constitution provided that both the Division of Revenue Bill and the County Allocation of Revenue Bill, had to be accompanied by a memorandum setting out, inter alia, a summary of any significant deviation from the Commission on Revenue Allocation’s recommendations, with an explanation for each such deviation. Therefore, there was no doubt that Parliament could deviate from the recommendations of the CRA while debating any of the two revenue sharing Bills. Not every deviation from those recommendations had to be explained; only the significant deviations had to be explained.
The recommendations of the CRA were not binding on the National Assembly or the Senate. However, the two Houses could not ignore or casually deal with the recommendations.
The Constitution ensured that Parliament would benefit from the technical insights of the CRA when debating revenue sharing and allocation Bills by requiring Parliament to consider the CRA's recommendations without being bound. That ensured that the entities involved in the budget making process were able to critically apply their collective mind to the process. Parliament and the CRA could fail to agree on revenue allocation but they had to be guided by the objective criteria set in article 203(1) of the Constitution.
In the Matter of the Speaker of Senate & Another v the Attorney General & Another & 4 Others; Ref. No 2 of 2013, the Supreme Court opined that the Senate had a clear role to play, in the processing of the Division of Revenue Bill. The Speaker of the National Assembly invited the court to depart from that decision in order to clear an impasse between Senate and the National Assembly on a Division of Revenue Bill by excluding Senate from the process of passing the Bill into law. For the Supreme Court to depart from a prior decision, there had to be a clear and well-reasoned justification.
A litigant could not urge the Court to depart from its previous decision simply because he disagreed with it, or that the decision, militated against his case. The application would have to be served on all respondents who would then respond to it. None of the parties were given an opportunity to respond to the invitation by the Speaker of the National Assembly for the court to depart from its previous decision and an application was not made. The court was moved in a perfunctory manner and it was unable to consider the merits of the Speaker's invitation in circumstances where the other parties were not heard on the same.
The preposition that in order to resolve the impasse, an application be made to the High Court under article 165 (3) (d), for orders compelling the National Assembly to provide for the equitable share of revenue due to the counties on the basis of the recommendations by the Commission on Revenue Allocation, was untenable for two reasons:- adopting such a course of action would defeat the finding that the recommendations of the CRA were not binding; and, it would fundamentally shift the revenue allocation function from the legislature to the judiciary, thus radically upsetting the doctrine of separation of powers.
The preposition of using the Revenue Allocation Act of the previous Financial Year as a fallback position to solve the impasse appeared practical and logical but it did not have its basis on any principle or provision of the Constitution.
The Constitution contemplated a scenario where the National Government would be unable to access funding due to the absence of enabling legislation. Article 222 of the Constitution provided that the National Assembly had power to authorise the withdrawal of money from the Consolidated Fund. It would be for purposes of meeting expenditure necessary to carry on the services of the National Government during that year until such time as the Appropriation Act was assented to. The withdrawal would not exceed one-half of the amount included in the estimates as expenditure for that year that had been tabled in the National Assembly and be included under separate votes for the several services in respect of which they were withdrawn, in the Appropriation Act.
While the withdrawal of money for the purpose of the National Government expenditure under article 222 of the Constitution was based on a percentage of the estimates of expenditure for that year, the same method could not apply to the County Government, since the estimates did not include the equitable revenue share due to counties. Logic would require that the percentage of the money to be withdrawn would be based on the Division of Revenue Bill; yet this would be legally untenable, given the fact that the Bill, was not only the subject matter of controversy, but was also yet to pass into law. In the circumstances, in the event of an impasse, the percentage of the money to be withdrawn would be based on the equitable allocation to counties in the Division of Revenue Act of the preceding financial year. The legislature should pass legislation to give normative form to that arrangement.
Legislation for the implementation of the national budget and allocation of revenue to both the National Government and county governments had specific and rigid timelines within which they should be enacted because they operationalized the financial existence of the country. Failure by Parliament to discharge such a critical legislative function, in the absence of an emergency, or any other disaster that disrupted parliamentary business, would not only violate the Constitution, but also expose the country to existential danger. Such a Parliament had to be considered to have run its course and be dissolved.
Under article 261(7) of the Constitution, Parliament could be dissolved for failure to enact certain legislation within a specific period of time. That provision would not only apply to legislation listed in the Fifth Schedule to the Constitution but also to other legislation such as the Division of Revenue Act. Failure to enact such legislation by Parliament, in the absence of an emergency or other disaster, would invite the enforcement of sanctions envisaged under article 261 of the Constitution. Therefore, if Parliament failed to agree on division of revenue during a second mediation under article 113 of the Constitution, any person could petition the High Court for a declaration to the effect that Parliament had violated the Constitution.
Under article 219 of the Constitution, a county’s share of revenue raised by the National Government had to be transferred to the county without undue delay and without deduction, except when the transfer had been stopped under article 225 of the Constitution. Unless there were timelines set by the Constitution or the law, a court had to consider each case on its own merits to determine whether there had been undue delay in the performance of an act by the concerned entity.
By not prescribing a specific time limit, article 219 of the Constitution allowed for a degree of flexibility on the part of the National Treasury in effecting monetary transfers to counties. The court was not the appropriate forum for a determination on precisely when monies due to counties should actually be transferred to the counties. However, the fact that the Constitution had not prescribed a specific timeline did not give the National Treasury the latitude to capriciously decide when to disburse funds to the counties.
Counties operated within rigid budgetary cycles and any delay in releasing funds to counties had to be justifiable and explained in good time. Releasing funds at a time when they could not be realistically utilized in the implementation of county projects in accordance with their budgets constituted a violation of the Constitution.
A reading of article 218(1) and 221 of the Constitution did not provide for which of the two bills, namely the Division of Revenue Bill and the Appropriation Bill, should be enacted before the other. It was clear that once enacted the Division of Revenue Act divided the revenue raised nationally between the two levels of Government while the Appropriation Act authorized the withdrawal and application of monies from the Consolidated Fund by the National Government.
Both the Division of Revenue Bill and the County Allocation of Revenue Bill were to be introduced in Parliament at least two months before the end of each financial year. The estimates of revenue and expenditure of the National Government were also to be submitted to the National Assembly, at least two months before the end of each financial year. That sequence of events would lead to the following conclusions:-
The Appropriation Bill was incapable of being introduced unless the estimates of revenue and expenditure had been approved and passed by the House.
The Appropriation Bill came into life after the Division of Revenue Bill since the latter would already have been introduced into Parliament at least two months before the end of the financial year.
The estimates of revenue and expenditure had to logically be based on or at the very least be in tandem with, the equitable share of revenue due to the National Government as provided for in the Division of Revenue Bill.
The Appropriation Act had to be based on the equitable share of revenue due to the National Government as provided in the Division of Revenue Act.
In an ideal situation, the enactment of an Appropriation Act could not precede the enactment of a Division of Revenue Act. The Cabinet Secretary responsible for finance would submit the estimates of revenue and expenditure to the National Assembly, in his capacity as the Chief Budget Officer of the Executive. In that capacity, the Cabinet Secretary had to base his/her estimates on the National Government’s share as provided for in the Division of Revenue Bill. Additionally, section 39 of the Public Finance Management Act left no doubt that the National Assembly, could not enact an Appropriations Act before enacting the Division of Revenue Act.
Per DK Maraga CJ [concurring]
Under article 259(1) of the Constitution, the Constitution was to be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights, permitted the development of the law and contributed to good governance. Under article 259(3) of the Constitution, the Constitution would also be interpreted in accordance to the doctrine that the law was always speaking.
A holistic interpretation of the Constitution meant that the entire Constitution had to be read as an integrated whole with no one particular provision destroying the other but each sustaining the other.
Under article 93(1) of the Constitution Parliament consisted of the National Assembly and the Senate. The discharge of legislative functions was shared by the two Houses. Under article 95(1) and 95(2) the members of the National Assembly represented the people of the constituencies and special interests and deliberated in the National Assembly and resolved issues of concern to the people. Under article 96(1) of the Constitution, the Senate represented the counties and served to protect the interests of the counties and their government. Article 96(2) of the Constitution clearly stated that Senate would participate in the law-making function of Parliament by considering, debating and approving Bills concerning counties as provided in articles 109 to 113 of the Constitution.
Under article 217 of the Constitution the passing of legislation on division of revenue was a shared mandate between the National Assembly and the Senate. Further, the principles of public finance set out in article 201 of the Constitution included the equitable sharing of national revenue and consultation on financial legislation and they related to both Houses of Parliament. Therefore, there was a joint role shared between the National Assembly and the Senate in the annual division and allocation of revenue Bills.
The Division of Revenue Bill and the County Allocation of Revenue Bill were not money Bills within the definition of article 114(3) of the Constitution. They were therefore not within the exclusive competence of the National Assembly.
A purposive interpretation of articles 95(4)(a) & 95(4)(b), 96(2), 110(1)(c), 114(3), 205 and 218(1)(a) of the Constitution read together with sections 38 to 41 of the Public Finance Management Act, made it quite clear that both the National Assembly and the Senate played a role in the division of revenue between the two levels of Government.
 
Dissenting opinion
Per NS Ndungu [dissenting]
A formal application for the court to depart from a previous decision was not a requirement where the matter at hand was an advisory opinion. In advisory opinions there were no interests at stake as would normally be the case in adversarial proceedings. Advisory opinions did not arise from any contests of rights or claims disposed of by regular process. In exercising advisory opinion jurisdiction, the court should not be constrained by procedures required in ordinary proceedings.
The Constitution under article 167(3) anticipated that there would be occasional need for the Supreme Court to depart from its previous decisions. The Supreme Court was not bound by its decision in the Senate Matter 2013.
While rendering an advisory opinion, under article 163(6) of the Constitution, the Supreme Court could undertake any necessary interpretation of the Constitution. The court's revision of its prior decision relating to a similar matter to the one under consideration, would not occasion prejudice to any party. It would clarify and outline a harmonious and comprehensive picture of the requirements for the legislative process and roles for the two Houses as provided under the Constitution.
The request to depart from the decision in Senate Matter 2013 was not casually made. A lot of thought, real interest and effort went into making that proposition.
The decision of the Majority in the Senate Matter 2013 ought to be reviewed especially because it did not take into account the architectural design of the Constitution and the legislative processes that arose from that design, with regard to the roles of the two Houses of Parliament as set out in articles 95 and 96 and part 4 of Chapter 12 of the Constitution. That design was intended to avoid situations where disputes between the two Houses of Parliament defeated or delayed important aspects of public finance and potentially threw the country into chaos by rendering operations by either level of government impossible or impractical.
The design as drawn by the drafters of the Constitution, established which House would originate the Division of Revenue (DOR) Bill, as a money bill and what was to happen when there was an impasse over a money bill. In most jurisdictions, where there was a deadlock between two Houses, the resolution was to allow the final determination to be made by the house with veto powers, which was the house that originated the Division of Revenue Bill. Further, in other democratic and bicameral jurisdictions, the Division of Revenue Bill was considered to be a money bill and therefore legislative processes that applied to money bills applied to it.
The Division of Revenue Bill was a money bill that could only be introduced by the National Assembly in accord to article 109 (5) of the Constitution. Article 95(4)(a) of the Constitution reinforced that position. It stated that the National Assembly determined the allocation of national revenue between levels of Government as provided in part 4 Chapter 12.
The National Assembly as the people's representative budgeted, collected, shared between the levels of government and audited revenue and it was knowledgeable on the finances of the country. The National Assembly was best placed to originate the Division of Revenue Bill as it financed the revenue share and proposed revenue collection forecasts in the requisite division. In the event of a deadlock between the Senate and National Assembly, then the National Assembly as the originating house should have final say or even veto powers.
Article 203(2) of the Constitution guaranteed county governments an equitable allocation of a minimum of fifteen percent of all national revenue collected by the National Government. That amount ought to be readily available to county governments as it was already allocated under the Constitution. Obtaining those funds ought not to be a bicameral legislative process. All that was required, pursuant to article 206(4) of the Constitution was to seek the approval of the Controller of Budget to authorize the withdrawal of that amount from the Consolidated Fund. Hence, in the event of a delay in the passage of the Division of Revenue Bill, article 206(4) of the Constitution provided a tidy and efficient solution.
The proposal of the majority with respect to how to deal with the impasse on revenue allocation was untenable as it constituted a major breach of the doctrine of separation of powers. Allocation of revenue was a task that fell squarely on the Executive and the Legislature. Any proposal from the court, directing or recommending action to be taken by Parliament and what percentage should be allocated to the counties, was not only an attempt to amend the Constitution but was tantamount to supervising the work of parliament and endangering the institutional comity between the three arms of government. The core function of the Judiciary was to interpret and apply laws and not to make them.
Although the majority were of the view that they were protecting the Constitution, they were in fact re-writing the Constitution or meddling with a political and budgetary process in which they had no expertise. The simple solution for the issue was to point out to Parliament that they needed to solve it with finality by enacting relevant legislation including amending the Constitution if necessary.
Under the circumstances Parliament had the option of making necessary constitutional and legislative amendments to clarify whether the Division of Revenue Bill was a money bill and what legislative processes should apply to its passage including the resolution of disagreements between the two Houses.
Under section 191(1) of the Public Finance Management Act, each year when the Budget Policy Statement was introduced, the Cabinet Secretary had to submit to Parliament a Division of Revenue Bill and County Allocation of Revenue Bill prepared by the National Treasury. The Budget Policy Statement, under section 25 of the Public Finance Management Act would be introduced to Parliament by February 15. Under article 218 of the Constitution, a Division of Revenue Bill and a County Allocation of Revenue Bill, had to be introduced in Parliament at least two months before the end of each financial year. Effectively, there was a conflict between the Public Finance Management Act and the Constitution in that the statute altered constitutional timelines set for the introduction of Division of Revenue Bill and a County Revenue Allocation Bill in Parliament.
In an ideal situation where the two Houses agreed on a Division of Revenue Bill and a County Allocation of Revenue Bill, the process ought to end by June 30. Where the two Houses of Parliament failed to agree on an ordinary Bill, the Bill would be referred to a Mediation Committee under article 113 of the Constitution. The Committee would be comprised of an equal number of members form each House and it would create a version of the Bill that was acceptable to both Houses. If the Committee failed to agree on the Bill then that Bill would be defeated. That also meant that even after a single mediation process, Parliament would not meet the constitutional timelines of passing the two Bills.
There were a number of conflicting timelines that existed within the legal framework that needed to be brought to the attention of Parliament for corrective action. There was need to clarify on the exact timelines within which the Division of Revenue Bill and the County Allocation of Revenue Bill could be introduced to Parliament. That would call for amendments to articles 218 and 221 of the Constitution, and section 190 and 191(1) of the Public Finance Management Act.
The Advisory Opinion, as rendered by the Majority of the Bench, conclusively disposed of the following four issues in the manner determined; 
Orders
the recommendations of the Commission on Revenue Allocation are not binding on Parliament; 
in the event of an Impasse over the Division of Revenue Bill, the solution prescribed in paragraphs 81 to 91 of this Opinion shall apply; 
the Supreme Court or any other court for that matter, is not the appropriate forum for setting timelines as to when the National Treasury must transfer the equitable share of revenue to counties; and 
Parliament could not enact the Appropriation Act before the enactment of the Division of Revenue Act.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/65/eng@2020-05-15
Application 39 of 2019,Wanderi & 106 others v Engineers Registration Board & 8 others; Egerton University & another (Interested Parties) (Application 39 of 2019 & Petition 4 of 2016 (Consolidated)) [2020] KESC 44 (KLR) (15 May 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",15 May 2020,2020.0,Nairobi,Civil,Wanderi & 106 others v Engineers Registration Board & 8 others; Egerton University & another,[2020] KESC 44 (KLR)               ,,"A. Background
1.
On 17th July 2018, we delivered a Judgment in this matter and Our final orders were as follows:
(a)
The Judgment of the Court of Appeal dated 12th June, 2015 is hereby set aside in toto.
(b)
The decision of the High Court issued on 15th October, 2012 is hereby affirmed in the following specific terms:
(1)
A declaration hereby do issue that the power of the Engineers Registration Board under the provisions of section 11(1)(b) of the Engineers Registration Act (now repealed) to register graduate engineers did not include the power to accredit and approve engineering courses offered by public universities incorporated under the Laws of Kenya.
(2)
A declaration hereby do issue that in refusing to register the Applicants, the Board violated the Petitioners’ right to fair administrative action under Article 47(1) of the Constitution and the Petitioners’ right to human dignity under Article 28 of the Constitution as read with Article 55 (a) and (c) of the Constitution.
(3)
An order of mandamus do hereby issue directing the Engineers Registration Board to register the Petitioners and 2nd Interested Parties in Petition No.19 of 2015, as Engineers under the Engineers Registration Act within the NEXT TWENTY-ONE DAYS (21) and in default the said Petitioners and 2nd Interested Parties be at liberty to apply to this Court for any appropriate Orders for enforcement of the Orders herein.
(4)
The Engineers Registration Board shall pay general damages assessed at Kshs.200,000/- to each of the Petitioners and 2nd Interested Parties. The sum shall carry interest at a rate of 12% per annum from the date of the High Court Judgment.
(c)
The Engineers Registration Board, shall bear the costs of the Petitioners and 2nd Interested Parties in Petition No. 19 of 2015, in the High Court, Court of Appeal and in this Court. The said costs shall carry interest at a rate of 12% per annum respectively from the date of judgment in each respective judgment until payment in full.
(d)
All other parties shall bear their own costs.
2.
The 1st Respondent, the Engineers Registration Board, on 20th December 2019 (a year and a half after the above orders were issued), filed a Notice of Motion under Rule 20(4) of the Supreme Court Rules, 2011 as well as Article 159(2) of the Constitution seeking a review of the Judgment aforesaid.
B. The Application
3.
The Notice of Motion, dated 17th December 2019, is supported by the Affidavit of Eng. Nicholas Musuni, the Registrar/CEO of the Applicant herein and it is his deposition that, in compliance with the Judgment in issue, the Applicant did the following:
i)
It issued to some of the Petitioners and 2nd Interested Parties, Certificates of Registration as Graduate Engineers.
ii)
It invited some of the Petitioners and Interested Parties to make applications to be registered as Graduate Engineers if they had graduated on or before the effective date i.e. 14th September 2013, the date the Engineers Act, 2011 came into effect.
iii)
Upon scrutinizing the applications made, it was noted that some of the Petitioners and 2nd Interested Parties did not graduate with Engineering degrees but had Bachelor of Industrial Technology degrees which made it difficult to register them as Graduate Engineers without breaching the law to wit Section 11(1) (b) of the Engineers Registration Act, Cap.530 (now repealed) as well as Section 18 of the Engineers Act, 2011 which limit registration of Graduate Engineers to persons holding Engineering degrees.
4.
The Applicant has also noted that persons who hold Bachelor of Industrial Technology Degrees and are therefore Technologists and Technicians are registered under the Engineering Technology Act No.23 of 2016 by the Kenya Engineering Technology Registration Board and not itself.
5.
That therefore it is imperative to review the Judgment aforesaid and remove the anomaly noted in the implementation of the same.","E. Analysis
15.
We note that save for the Applicant and the Petitioners – represented by Mr. Wanderi, no other party participated in the Application before us. Noting the submissions by those parties, Rule 20(4) of the Supreme Court Rules provides as follows:
“
The Court may, in circumstances it considers, exceptional, on an application by any party or on its motion, or review any of its decisions”
16.
In Fredrick Otieno Outa, this Court had this to say on the import of that Rule:
(87)
The other provision that we must interrogate, is Rule 20(4) of the Supreme Court Rules: which provides that: “The Court may, in circumstances it considers, exceptional, on an application by any party or on its motion, or review any of its decisions.
(88)
Unlike Section 21(4) of the Supreme Court Act, Rule 20(4) of the Supreme Court Rules would on its face, appear to confer upon this Court, jurisdiction or powers, to review its own Judgments, or decisions beyond the confines of the Slip Rule.
(89)
Yet, the issue is not as simple or direct as it appears, given the fact that, here, we are dealing with subsidiary legislation. Such legislation must flow from either the Constitution or a parent Act of Parliament. Neither the Constitution, nor the Supreme Court Act, explicitly, or in general terms, confer upon the Supreme Court, powers, to sit on appeal over its own decisions or to review such decisions. This being the case, no rule of the Court, not even Rule 20(4), as worded, can confer upon this Court, jurisdiction to review its own decisions. If this were the intent of Rule 20(4), then the said Rule, would be of doubtful constitutional validity. We must therefore hold, that Rule 20(4) is not capable of conferring upon this Court, powers to review its decisions, beyond the confines of the Slip Rule, as embodied in Section 21(4) of the Supreme Court Act. At best, this Rule can only be understood to be echoing Section 21(4) of the Supreme Court Act.
The Court then concluded thus:
(90)
Flowing from the above analysis, and taking into account the elaborate submissions by Counsel, and the practice in the Commonwealth and beyond, the inescapable conclusion to which we must arrive, is that this Court, being the final court in the land, has no jurisdiction to sit on appeal over, or to review its own Judgments, Rulings, or Orders, save in the manner contemplated by Section 21(4) of the supreme Court Act. The Court becomes functus officio once it had delivered Judgment or made a final decision.
17.
The Court having so stated, went further to clarify its review jurisdiction in the following words;
(91)
Having reached this conclusion, based largely on the fact that, neither the Constitution, nor the law, explicitly confers upon the Court, powers to review its decisions, does this render this Court entirely helpless, Aren’t there situations, so grave, and exceptional, that may arise, that without this Court’s intervention, could seriously distort its ability to do justice, of course, litigation must come to an end. But should litigation come to an end, even in the face of an absurdity, the Supreme Court is the final Court in the land. But most importantly, it is a final Court of justice. This being the case, the Court is clothed with inherent powers which it may invoke, if circumstances so demand, to do justice. The Constitution form which this Court, and indeed all Courts in the land, derive their legitimacy decrees that we must do justice to all.
It then settled the law on review as follows:
(92)
Taking into account the edicts and values embodied in Chapter 10 of our Constitution, we hold that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated in paragraph (90) above. However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Ruling or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:
i)
The Judgment, Ruling, or Order, is obtained, by fraud or deceit;
ii)
The Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
iii)
The Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;
iv)
The Judgment or Ruling, was rendered, on the basis of, a repealed law, or as a result of, a deliberately concealed statutory provision.
These principles are no doubt informed by various judicial authorities, in other jurisdictions, such as the ones we have cited from Nigeria, United Kingdom, India and South Africa.
18.
We reiterate the above holdings and would only add that, we have seen no reason to depart from the above principles and we shall apply them to the present Motion. In that regard, it has not been claimed by the Applicant that the Judgment in issue was obtained by fraud or deceit. Neither has it been termed a nullity nor that it was made in the mistaken belief that the parties had consented thereto. What of the fourth principle that the Judgment was rendered on the basis of a repealed law or as result of a deliberately concealed statutory provision? The Applicant has submitted in that context that the provisions of the Engineers Registration Act (now repealed) should have been read alongside the provisions of the Engineering Technology Act, No.23 of 2016 and the Engineers Act to reach a conclusion that Technologists and Technicians cannot and should not be registered under the latter Act as to do so would be an illegality. What should we make of that submission which is only opposed on the main ground that double registration is not unlawful and therefore we should decline the prayer for review?
19.
In the above context, the Applicant has stated that it is unable to implement the Judgment without breaching the law to wit the Engineers Registration Act as read with the Engineering Technology Act No.23 of 2016. That therefore, such a situation coupled with the fact that the Court, in rendering its Judgment, was not made aware of the existing contradiction in registering Technologists and Technicians as Graduate Engineers, ought to move the Court to expand the principles in Outa and allow the Motion for review on these grounds. The Petitioners have taken a different view contending that in fact the registration of the Appellants as Graduate Engineers has already been done and there is therefore nothing to review.
20.
In any event, the Petitioners have added, registration of Engineering Technologists and Technicians as such and also as Engineers is not unlawful and the double registration is therefore proper in their view and our Judgment should not be disturbed.
21.
In Outa, we asked ourselves this question: “Aren’t there situations, so grave, and exceptional, that may arise, that without this Court’s intervention, could seriously distort its ability to do Justice? Of course, litigation must come to an end. But should litigation come to end, even in the face of an absurdity? The Supreme Court is the final Court in the land. But most importantly, it is a final Court of justice. This being the case, the Court is clothed with inherent powers which it may invoke, if the circumstances so demand, to do justice.”
22.
We reiterate our position as succinctly expressed above. Are the circumstances presently obtaining so exceptional as to warrant a review of our Judgment? In our view, the matter is straightforward.
23.
In our Judgment, and relevant to the issue at hand, we had ordered the Applicant “to register the Petitioners and 2nd Interested Parties in Petition No.19 of 2015 as Engineers under the Engineers Registration Act within the NEXT TWENTY-ONE DAYS”. It is now obvious, and this fact has not been contested, that, not all the Petitioners and 2nd Interested Parties were actually trained and qualified to be registered as Graduate Engineers. They were trained and qualified as Engineering Technologists and Technicians and therefore graduated with a Bachelors degree in Industrial Technology (BIT).
24.
According to the Applicants, a fact conceded by the Petitioners, registration of the latter falls outside the ambit of the Applicant and instead, is the responsibility of another entity known as the Kenya Engineering Technology Registration Board created by the Engineering Technology Act No.23 of 2016. Are these facts so exceptional as to warrant a review of our Judgment? Should the Petitioners and Interested Parties benefit from double registration under two different statutory regimes only because of this Court’s Judgment which did not at all address this apparent contradiction and conflict? We think not.
25.
We have perused both the Engineers Registration Act Cap.530 which was the law applicable at the material time. Section 11 therefor provides as follows:
“
11.
(1)
Subject to this Act, a person shall be entitled, on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee, to be registered under this Act and to have his name entered in the register as a registered engineer if he is—
(a)
a member of an institution of engineers the membership of which is recognized for the time being by the Board as furnishing a sufficient guarantee of academic knowledge of and practical experience in engineering; or
(b)
a person who—
(i)
is the holder of a degree, diploma or licence of a university or school of engineering which may be recognized for the time being by the Board as furnishing sufficient evidence of an adequate academic training in engineering; and
(ii)
has had not less than three years’ practical experience of such a nature as to satisfy the Board as to his competence to practise as a registered engineer:
Provided that not less than two years of the practical experience required by this subparagraph shall have taken place after obtaining the academic qualification specified in subparagraph (i).
(2)
Subject to this Act, a person shall be entitled, on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee, to be registered under this Act and to have his name entered in the register as a registered graduate engineer if he is a person to whom subsection (1) (b) (i) applies but is not yet a person to whom either subsection (1) (a) or subsection (1) (b) (ii) applies. Rev. 2010] Engineers Registration CAP. 530
(3)
Once a person has been registered as a registered graduate engineer under subsection (2) he shall be deemed for all purposes to have been accepted by the Board as being academically qualified for registration as a registered engineer and subsequent acceptance of his name for registration as a registered engineer under subsection (1) (b) (ii) as distinct from its acceptance under the other provisions of subsection (1) shall not be challenged.
(4)
Subject to this Act, a person shall be entitled on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee, to be registered under this Act and to have his name entered in the register as a registered graduate technician engineer if he is the holder of a higher national diploma or an equivalent qualification in engineering obtained from an engineering polytechnic or college recognized for the time being by the Board as furnishing evidence of adequate academic training.
(5)
Subject to this Act, a person shall be entitled on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee to be registered under this Act and to have his name entered in the register as a registered technician engineer if—
(a)
he is the holder of a higher national diploma or an equivalent qualification in engineering obtained from an engineering polytechnic or college recognized for the time being by the Board as furnishing evidence of adequate academic training; and
(b)
has had not less than three years practical experience of such a nature as to satisfy the Board as to his competence to practise as a registered technician engineer.
(6)
Subject to this Act, a registered engineer shall be entitled on making an application to the Board in the prescribed form and on payment to the Board of the prescribed fee, to be registered under this Act and to have his name entered in the register as a registered consulting engineer in a particular classification and grade if—
(a)
he has practised in a specialized engineering field as a registered engineer for a period determined by the Board; and
(b)
he has satisfied the Board as to his having achieved a standard of competence to enable him to practise as a consulting engineer in a particular specialization and grade.
(7)
The Board may require an applicant for registration to satisfy CAP. 530 8 Engineers Registration [Rev. 2010] it that his professional and general conduct have been such as, in the opinion of the Board, to make him a fit and proper person to be registered under this Act and the Board may direct the Registrar to postpone the registration of an applicant until so satisfied.” [Emphasis added]",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/44/eng@2020-05-15
Petition 4 of 2017,Coast Professional Freighters Limited v Oganda & 2 others (Petition 4 of 2017) [2020] KESC 48 (KLR) (30 April 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",15 May 2020,2020.0,Nairobi,Civil,Coast Professional Freighters Limited v Oganda & 2 others,[2020] KESC 48 (KLR)               ,,"A. Introduction
1.
Sometime in 1998, the 1st Respondent, Welsa Bange Oganda, filed a suit at the High Court in Mombasa (HCCC No.58 of 1998). After what was described by the trial Judge, Kasango J, as “a long journey”, Judgment was eventually delivered on 21st August 2015 with the following orders being issued:
a)
The alleged auction of 17th September 1997 of property Mombasa/Block X/219 is hereby declared null and void.
b)
The title Mombasa/Block X/219 shall hereof be rectified to revert back to the Plaintiff, Welsa Bange Oganda. In that regard, Coast Professional Freighters Limited shall vacate Mombasa Block X/219 within 30 days from today’s date failing which, eviction orders shall issue.
c)
There shall be Judgment jointly and severally against Industrial and Commercial Development Corporation and Coast Professional Freighters Limited for the Plaintiff for Kshs.8 Million.
d)
1st to the 3rd Defendants shall pay the Plaintiff’s costs of this suit.
2.
On appeal, the Court of Appeal, having re-evaluated the evidence and applying the applicable law to the same, dismissed the appeal with costs to the 1st Respondent. That decision triggered the present appeal.
B. Preliminary Objections
3.
We are now confronted with preliminary objections as follows:
i)
The first by the 1st Respondent dated 13th March 2017; and
ii)
The second by the 2nd and 3rd Respondents dated 2nd March 2018.
4.
All the three parties have raised objections to the hearing of the Petition of Appeal on the ground that, whereas the Appellant has not indicated what jurisdiction of this Court it is invoking, the appeal is not a proper one as a matter of right under Article 163(4)(a) of the Constitution nor does it raise a matter of general public importance as is the expectation of Article 163(4)(b) of the Constitution. Consequently, it is urged, this Court has no jurisdiction to hear and determine the appeal and instead, the same should be struck off with costs.
5.
In response to the Preliminary Objections, the Appellant has submitted that the dispute revolves around Article 40 of the Constitution which protects the right to property and whereas the Petition of Appeal is not grounded on Article 163(4)(b) on matters of general public importance, the same is properly before this Court as one involving the interpretation and application of the Constitution under Article 163(4)(a). To that extent therefore, it is urged that the Appeal is properly before this Court as a matter of right and should be determined on the merits.","C. Analysis And Determination
6.
Since the Appellant has admitted that Article 163(4)(b) is inapplicable to its appeal, it not being one involving a matter of general public importance, we shall only interrogate the applicability of Article 163(4)(a) i.e. whether the appeal is one filed as a matter of right under the said Article and requiring the interpretation and application of the Constitution by this Court.
7.
In doing so, we must from the onset state that, we shall not tire in reminding parties that this Court’s jurisdiction is circumscribed by the Constitution itself so that not every matter qualifies as an appeal to us. It therefore behoves every party to state, with a measure of specificity and precision, what jurisdiction it is invoking in approaching this Court. It is not for the Court to peruse an appeal, speculate on what jurisdiction it should assume, then proceed to determine such an appeal on that assumption. Where a party therefore fails to address the jurisdictional question ab initio and which therefore gives it standing before this Court, the appeal is one for striking out without further ado. That position is true of the present appeal.
8.
The above finding notwithstanding, we deem it fit to state with clarity whether indeed the appeal is properly before us under Article 163(4)(a) of the Constitution. Does it require the application and/or interpretation of the Constitution?
9.
Our perusal of the record at the High Court and Court of Appeal would show that as shown above, Kasango J was dealing with the question whether, the 2nd Respondent, having decided to exercise its rights as chargee over L.R. No. Mombasa/Block X/219 registered in the name of the 1st Respondent and who had allegedly failed to repay a loan he had taken from it, breached its agreement with the latter.
10.
As a corollary, the learned Judge determined the question whether, in the sale (at a public auction) and transfer of the 1st Respondent’s property aforesaid to the Appellant, fraud was committed by the Appellant and the 2nd Respondent.
11.
It is our view in that context that, nowhere in her Judgment did Kasango J make any attempt at interpreting or applying the Constitution because as can be seen by the final orders she issued (para 1 of this Ruling), no such issue arose for her determination. What of the Court of appeal?
12.
In their Judgment, the learned Judges of Appeal distilled the following issues for determination:
i)
Whether or not the High Court (Commercial Division) had jurisdiction to hear and determine the dispute;
ii)
Whether the exercise of statutory power of sale by the 2nd and 3rd Respondents was proper and or lawful;
iii)
Whether the Appellant participated in the public auction held on 17th September 1997;
iv)
If the answer to (iii) is in the affirmative, whether the Appellant emerged or was declared the successful bidder in the auction; and,
v)
Whether the award of Kshs.8 Million to the 1st Respondent, jointly and severally, against the Appellant and the 2nd Respondent was sustainable.
13.
In addressing all the above questions, the Court of Appeal did not once address any constitutional issue as is the expectation of Article 163(4)(a) i.e. the requirement for the interpretation and application of the Constitution to trigger our jurisdiction thereof.
14.
Without belabouring the point, this Court’s decisions on the issue confronting us and as enunciated in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, Hassan Ali Joho and Anor v Suleiman Said Shalabal & 2 Others [2014] eKLR; Aviation and Allied Workers Union of Kenya v Kenya Airway Ltd & 3 Others [2017] eKLR; are succinct in making the point that, where an appeal dos not require the interpretation and application of the Constitution; and where the superior Courts below have also not done so, then no appeal lies as a matter of right under Article 163(4)(a) of the Constitution. The present appeal is one such appeal and we deem it frivolous and vexatious as it is obvious to us that the Appellant, well represented by Counsel, ought to have known that it has no right to approach this Court if it had looked at its dispute from the prism of the Constitution and not mere displeasure and dissatisfaction with the decisions of both the High Court and the Court of Appeal.
15.
What of costs? Having found that the appeal is so frivolous that it ought not to have been filed in the first place, it follows that the Appellant shall pay costs to all the Respondents.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/48/eng@2020-04-30
Petition 14 of 2019,Cordisons International (K) Limited v Chairman National Land Commission & 44 others (Petition 14 of 2019) [2020] KESC 50 (KLR) (30 April 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",30 April 2020,2020.0,Nairobi,Civil,Cordisons International (K) Limited v Chairman National Land Commission & 44 others ,[2020] KESC 50 (KLR)               ,,"A. Introduction
1.
The present appeal is premised on the contention by the Appellant that it had legitimate interest in the development of a wind power project on a parcel of land situate in Kiongwe, Lamu County. It further contends that, having secured all necessary approvals, it was granted a leasehold interest over the subject land by the 6th Respondent but it subsequently discovered that Part Development Plans PDP No.NBI/1281/2016/01 published in Gazette Notice Number 6554 as well as a letter of allotment had been issued to the 5th Respondents in a bid to defeat the Appellant’s interest.
2.
In order to protect its alleged interest over the subject land, the Appellant moved the Environment and Land Court (ELC) at Malindi by way of a Judicial Review Application ELC at Malindi J. R. Misc. Application No.11 of 2017 seeking orders inter alia to quash the decision contained in the letter of allotment dated 7th February 2017 addressed to the 5th Respondent; compel the 2nd Respondent to issue lease instruments to the Appellant over 11,100 acres of land in Kiongwe and to prohibit the 1st Respondent from denying the validity of the Appellant’s claim over that parcel of land.
3.
In its Judgment, the ELC (Olola J) declined to issue the orders sought and instead, dismissed the Judicial Review Application. The Appellant, aggrieved by that decision filed C.A No.91 of 2018 at the Court of Appeal. In dismissing the appeal, the appellate Court determined that, since the Appellant had failed to adhere to the procedure for challenging the PDP, it would have been wrong for the trial Court to review the said decision.
4.
Undeterred, the Appellant filed the present appeal contending inter alia that the learned Judges of appeal, as did the trial Court, erred in their interpretation and application of Articles 61, 62 and 67 of the Constitution.
5.
Before the appeal could be heard however, the 5th, 6th and the 7th – 38th Respondents filed Preliminary Objections on this Court’s jurisdiction to hear and determine the appeal. They are all now applying that the same be struck off or dismissed with costs for want of jurisdiction.
","D. Analysis and Determination
15.
We deem it necessary to dispose of the second objection first i.e. whether the appeal concerns a matter of general public importance. Without belabouring the point, it is trite that for an appeal to lie to this Court under Article 163(4)(b), Sub-Articles 4 and 5 of that Article must be complied with. They read as follows:
4.
Appeals shall lie from the Court of Appeal to the Supreme Court—
(a)
as of right in any case involving the interpretation or application of this Constitution; and
(b)
in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).
5.
A certification by the Court of Appeal under clause (4)(b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned”.
16.
From the record, no such certification as is required by the Constitution was obtained by the Appellant and so it cannot be that the Appeal is one filed under Article 163(4)(b) even if the Appellant had expressed that it had done so, and it has not.
17.
Before adverting to Article 163(4)(a), we have noted that the reason why the objections refer to both the constitutional interpretation and application jurisdiction of this Court as well as the general public importance jurisdiction, is because in its Memorandum of Appeal dated 17th April 2019, nowhere has the Appellant indicated what jurisdiction it was invoking in approaching this Court. We have in that regard often stated that, it is not for this Court to speculate on jurisdiction and assign to each appeal a jurisdiction not specifically invoked by a party appealing a Court of Appeal Judgment. An Appellant is expected to specify such jurisdiction with clarity to enable both the Court and the opposing party to know what case is before them. Without such specificity, such an appeal is one for striking out.
18.
Having so said, for completeness of the record, is the appeal before us one in which Article 163(4)(a) could be invoked and the dispute determined as one necessitating the interpretation and application of the Constitution?
19.
It must be recalled that what was before Olola J in ELRC J.R. Miscellaneous Application No.11 of 2017 was a judicial review Notice of Motion in which orders of prohibition, mandamus and certiorari were being sought. The main issue in contention was the legality or otherwise of a letter of allotment dated 7th February 2017 issued by the 2nd Respondent to the 5th Respondent and whether conversely, the 2nd Respondent ought instead to have issued land lease instruments to the Appellant over the disputed parcel of land in Kiongwe within Lamu County.
20.
In his Judgment, the learned Judge partly stated as follows, in determining the dispute before him:
The contention by the Ex-parte applicant that the subsequent allocation was irregular and unlawful for encroaching on land already issued and allocated to the Ex-parte applicant does not lie as in law. The 2nd Interested Party had no power to allocate the public land to the Ex-Parte Applicant in the manner it did or at all”.
21.
In determining as above, the Judge was concerned with the allocation of the disputed land as an administrative action and any references to the Constitution were as regards the powers of the 2nd Respondent to allocate public land to individuals and no more. Being dissatisfied with that determination, the Appellant, in its Petition of Appeal to this Court at paragraph 6 thereof has stated that the issues for determination by this Court are:
i)
Whether there are fundamental errors of misidentification of errors on the face of the Judgment that fundamentally affected the decision of the appellate Court.
ii)
Whether the dispute was framed and determined correctly.
iii)
Whether the 6th Respondent’s consent was required and acquired by the 2nd Respondent to allocate the subject land to the 5th Respondent.
iv)
Whether the 1st, 2nd and 3rd Respondents breached Article 47 of the Constitution as read with the Fair Administrative Action Act and the Rules of natural justice.
v)
Whether the 5th Respondent had the necessary approvals and had followed the correct procedure to be able to be allocated the subject land and;
vi)
Whether the 1st, 2nd and 3rd Respondents were biased in favour of the 5th Respondent and against and Petitioner.
22.
The question that must necessarily arise in the above context is this; what was before the Court of Appeal post Olola J’s Judgment to trigger the issues now placed before this Court? In its Judgment, the Court of Appeal had inter alia stated as follows:
(1)
At the core of this appeal is a parcel of land situate in Kiongwe within Lamu County measuring approximately 11,100 aces or thereabout, hereinafter referred to as “the suit land”. The Appellant’s claim to the suit property is premised on the following facts: the suit property was allocated to Kenwind (K) Limited, the 5th Respondent herein, by the National Land Commission, the 2nd Respondent, vide a letter of allotment dated 7th February 2017.”
23.
The Court then went on to state thus:
(27)
The fundamental issue for determination in this appeal is: who, between the national Land Commission and the County Government, is lawfully mandated to allocate public land and what is the appropriate procedure thereof?”
24.
In answering the above question, the Appellate Court addressed Article 67 of the Constitution which establishes the National Land Commission as well as Article 62(1)(a) which defines public land and concluded thus:
(40)
In view of the foregoing, it is obvious to us that the Appellant had not taken cognizance of the new land policy that had been ushered by the Constitution of Kenya, 2010 and the Land Act; and as a result backed the wrong horse. The Appellant ought to have engaged the National Land Commission as soon as it came into operation, given its constitutional and statutory role in allocation of public land.”
25.
In dismissing the Appeal, the Appellate Court rendered itself as follows:
(44)
Section 9(2) of the Fair Administrative Actions Act bars a Court from reviewing any administrative action or decisions unless the mechanisms for appeal or review and all remedies available under any other written law are first exhausted. As there existed a statutory procedure for questioning the said PDP, which procedure was not adhered to by the appellant, it would have been procedurally wrong for the trial Court to review the said decision.”",Struck Out,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/50/eng@2020-04-30
Petition 43 of 2019,Gitahi & 4 others v Kenya Revenue Authority (Petition 43 of 2019) [2020] KESC 46 (KLR) (30 April 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",30 April 2020,2020.0,Nairobi,Civil,Gitahi & 4 others v Kenya Revenue Authority,[2020] KESC 46 (KLR)               ,,"A. Introduction
1.
On 30th May 2016, the Employment and Labour Relations Court (ELRC per Mbaru, J.) declared that the termination of employment of the three Appellants was unfair and ordered their reinstatement. They were all former employees of the Kenya Revenue Authority, the Respondent, which then filed an appeal to the Court of Appeal against the said decision.
2.
On 11th October 2019, the appeal was partly allowed with the Appellate Court finding that the termination aforesaid “was not wrongful” but because the “process of termination was flawed …,” then the declaration to be given was that “the termination shall be a normal one”. The Appellants are now before this Court challenging the said findings.
3.
Before the appeal could be heard on its merits however, the Respondent filed a Motion dated 6th February 2020 seeking orders to strike out the entire appeal under Article 163(4) and (6) of the Constitution, Sections 2(a), 15, and 16(1) of the Supreme Court Act as well as Rules 15(2)(f) and 24(1) of the Supreme Court Rules, 2011.
B. The Application
4.
The Motion is supported by the Affidavit of Grace Mwangi sworn on 6th February 2020 as well as the grounds in the body thereof. It is her deposition that this Court lacks jurisdiction to hear and determine the Appeal under Article 163(4)(a) as neither the trial Court, the Court of Appeal nor this Court were or are now being called upon to interpret or apply any part of the Constitution so as to entitle the Appellants, audience, as a matter of right before this Court.
5.
In submissions filed on 24th February 2020, the Respondent has further urged that the interpretation of Section 49(1) of the Employment Act was centrally in issue in the determination of the dispute between the parties and since no constitutional provision required any such interpretation or application, then the whole Appeal was improperly before this Court and ought to be struck out. Reliance thereof was placed on this Court’s decisions in S. K. Macharia and Anor v KCB Ltd & 2 Others [2012] eKLR; In the matter of the Interim Independent Electoral and Boundaries Commission [2011] eKLR; Lawrence Nduttu & 6000 Others v KBL & Anor; Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR as well as Peter Odiwuor Ngoge v Francis Ole Kaparo & 5 Others, SC Petition No.2 of 2012.
","D. Analysis And Determination
8.
We must from the outset state that the response to the Motion before us was most baffling. We say so, with respect, because the Appellants have taken the view that where public interest is involved, without more, the jurisdiction under Article 163(4)(a) of the Constitution is automatically triggered. Nothing can be further from the truth if one were to read Article 163(4)(a) of the Constitution contextually.
9.
We say so because time and time again, we have explained that the jurisdiction under Article 163(4)(a) is two fold: one, as a matter of right where interpretation and application of the Constitution is sought and which matter has risen up the hierarchy of the superior Courts and two, where the dispute raises a matter of great public importance. In the latter case, certification that the matter is indeed one of great public importance is required which is not the case presently.
10.
Furthermore, in Aviation and Allied Workers Union v Kenya Airways Ltd & 3 Others [2015] eKLR, we stated that what amounts to interpretation and application of the Constitution is;
(36)
… the assumption of a task that transcends not just the reference to the rich generality of constitutional principle, it is a task that [must] focus upon specific clauses of the Constitution, and calls for the attribution of requisite meaning, tenor and effect.”
This finding had followed a long string of authorities on the issue, specifically Gatirau Peter Munya (supra) where we stated thus;
(69)
The import of the Court’s statement in the Ngoge Case is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an Appellant should demonstrate is that the Court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.”
11.
In applying the above test to the dispute between us, it is obvious that a concise reading of the Judgment of the ELRC (Mbaru, J.) and the Court of Appeal, would show that, what was before the two Courts was the simple question whether the employment of the Appellants was lawfully terminated or not. The question whether the Appellants, as individuals, acted with utmost trust and integrity in the performance of their duties within a public body such as the Respondent, was a peripheral issue as was the decision of the Court of Appeal to the effect that the remedy that commended itself to that Court was that the Appellants’ termination of employment was sustained in “consideration of public interest”.
12.
None of the above issues required nor now require the interpretation or application of the Constitution and the mere reference to the public interest by the Court of Appeal would not necessitate such an action contrary to the assertion by the Appellants. It is not even enough to invoke Article 41 of the Constitution which protects the rights to fair labour practices as that Article was not subjected to any interpretation or application by either of the superior Courts.
13.
In a nutshell, it is our finding that the Motion seeking the striking out of the Petition of Appeal herein is merited and is allowed. As costs follow the event, the Respondent shall have the costs hereof.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/46/eng@2020-04-30
Civil Application 25 of 2019,Konditi v Abson Motors Limited (Civil Application 25 of 2019) [2020] KESC 47 (KLR) (30 April 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",30 April 2020,2020.0,Nairobi,Civil,Konditi v Abson Motors Limited,[2020] KESC 47 (KLR)               ,,"A. Introduction
1.
The applicant, through the firm of Lumumba & Lumumba Advocates, presented an application dated 5th August 2019 to the registry seeking stay of execution of the Court of Appeal judgment. However, for want of procedural compliance the Honourable Deputy Registrar of this Court declined to admit the same prompting the Advocates to forward the same through a letter dated 13th August 2019 and received on 14th August 2019 to the Honourable Deputy Registrar requesting for his formal communication and reasons for the refusal to admit the said application.
2.
The said correspondence together with the application were forwarded to the duty Judge (Ibrahim SCJ) who declined to certify the application as urgent and noted, inter alia, that the applicant will have to persuade the court as to the procedure for initiating legal action in the Supreme Court. The duty Judge ordered that the matter goes through the normal process for hearing inter partes. Following these orders, the Honourable Deputy Registrar directed the applicant to file and serve the application within 7 days, and set a mention date to confirm compliance.
3.
On 23rd August 2019, a day after the mention before the Honourable Deputy Registrar, the applicant’s counsel wrote to the Honourable Deputy Registrar advising that they shall not be filing the application for stay before this Court and requested to retrieve their application submitted to the registry. The Honourable Deputy Registrar directed the applicants to comply with the procedural steps of filing including payment of the filing fees before they can formally withdraw the application. The matter is now held in abeyance pending further action by the applicant through his counsel. There is no substantive petition on which the application is hinged or the basis for the intended appeal.
","B. Analysis
4.
Rule 7E (9) of this Court’s rules provides that pleadings shall be deemed to have been filed with the Court where all the relevant copies of the pleadings have been lodged in the registry and where applicable, the requisite fee has been paid. The applicant lodged the relevant copies at the registry and while the application was admitted, the applicant never sought to be excused and was never exempted from fulfilling the procedural steps including requirement as to the payment of the requisite fee in order to complete the lodging of the application. Since the applicant has also expressed intention to withdraw the application and the application cannot, in the present circumstances, be served upon the respondent, it is only just that the same be struck out for want of compliance with the procedural steps ab initio.
C. Determination
5.
We therefore order that the application be struck out in its entirety for being a nullity ab initio. There shall be no order as to costs. Orders accordingly.",Struck Out,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/47/eng@2020-04-30
Election Petition (Application) 9 of 2019,Okal v Ojuok & 2 others (Election Petition (Application) 9 of 2019 & Application 33 of 2019 (Consolidated)) [2020] KESC 51 (KLR) (30 April 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",30 April 2020,2020.0,Nairobi,Election Petition,Okal v Ojuok & 2 others,[2020] KESC 51 (KLR)               ,,"A. Background
1.
The applicant and the 1st respondent, with other candidates, contested for the position of Member of County Assembly for Central Nyakach Ward of the Kisumu County Assembly. The 1st respondent garnered 3,300 while the applicant garnered 3,236 votes. The magistrate’s court allowed the applicant’s petition challenging that result but on appeal, the High Court reversed that decision and declared the 1st respondent the winner. On a further appeal, the respondents filed applications challenging the competence of that further appeal on the ground that no second appeal lies to the Court of Appeal from a High Court decision concerning election of a Member of County Assembly. In its ruling dated February 14, 2019, the Court of Appeal allowed those applications and struck out the appeal. The applicant wishes to appeal to this Court against that decision.","E. Determination
7.
Upon careful consideration of the application, the responses and submissions by counsel for the parties, it is clear that two issues arise for our determination:
(i)
whether this Court has jurisdiction to entertain an appeal in this matter, and, (ii) whether the applicant has given a satisfactory explanation for the delay.
8.
In our recent judgement in Hamdia Yaroi Shek Nuri v. Tumaini Kombe & 2 others. Pet No. 38 of 2018; [2019] eKLR, we held that “in the absence of an express statutory provision, no second appeal lies to the Court of Appeal, from the High Court, emanating from an election petition concerning the validity of the election of a member of county assembly.” This being the legal position, it follows that this Court has no jurisdiction to entertain an appeal in this matter. As such, we do not need to go into the merits of the application.
9.
This determination renders consideration of application No. 33 of 2016 otiose. Consequently, we dismiss both applications and make the following final Orders:
(a)
The application (No. 9 of 2019) dated March 28, 2019 is hereby dismissed.
(b)
The application (No. 33 of 2019) dated November 10, 2019 is hereby dismissed.
(c)
The applicant to bear the costs of both applications.
Orders accordingly.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/51/eng@2020-04-30
Application 31 of 2019,Omenda & 6 others v Ethics & Anti-Corruption Commission & 2 others (Application 31 of 2019) [2020] KESC 71 (KLR) (30 April 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",30 April 2020,2020.0,Nairobi,Civil,Omenda & 6 others v Ethics & Anti-Corruption Commission & 2 others,[2020] KESC 71 (KLR)               ,,"A. Introduction
1
The applicants were employees of the Geothermal Development Company Limited GDC . On 4th July 2012, GDC advertised for Tender No. REF. GDC/HQS/086/2011-12 for provision of Rig Move Services for Menengai Geothermal Project hereinafter referred to as “the Tender” pursuant to the Public Procurement and Disposal Act 2005 and the Public Procurement and Disposal Regulations 2006 culminating into signing of a contract as prescribed in the said Act and Regulations. On 29th October, 2015 and 30th October, 2015, after the conclusion of the tendering process, the applicants, who were members of the Tender Committee of GDC, aver that they became aware through social media, electronic media and the Daily Press that the 1st Respondent had recommended to the 2nd Respondent that the applicants, who were members of the Tender Committee be charged in court over irregularities in the tender process. They were subsequently arraigned before the Court in Anti-Corruption Case No. 20 of 2015, to answer to charges of; Willful failure to comply with the law relating to procurement contrary to section 45 2 B as read with section 48 1 A of the Anticorruption and Economic Crimes Act, 2003 - Count 1 ; and inappropriate influence on evaluation contrary to section 38 1 b as read with section 38 2 a of the Public Procurement and Disposal Act- Count 2 .
2
The applicants challenged their prosecution by instituting Judicial Review proceedings before the High Court seeking an orders prohibiting the respondents from prosecuting, sustaining, proceeding, hearing, conducting or in any manner dealing with or completing the hearing of the charges laid or proceedings conducted in the Anti-Corruption Case before the Chief Magistrates’ Court at Milimani Law Courts, Nairobi. The learned judge found that the consideration being used as a basis for the commencement of the criminal charges under Count I, was not a criterial provided for in the tender document and that to prefer charges against a person for not taking an action which would have amounted to a violation of an express provision of the law was clearly irrational. As regards Count II, the learned Judge held that it was not dealt with by the parties. In the end, the Judge partially allowed the application and granted an order of prohibition prohibiting the 2nd respondent from prosecuting the Anti-Corruption Case No. 20 of 2015 in so far as it relates to the applicants in Count I.
3
The 1st respondent successfully appealed the decision to the Court of Appeal. The appellate court found that the High Court judge had not exercised his discretion correctly as the Judge’s analysis and finding on Count I was aimed at investigating the correctness of the decision of the 1st and 2nd respondents which is not the essence of Judicial Review. Based on the material before it, the Court of Appeal found that the decision to prefer charges against the applicants was not grossly unreasonable. The Court of Appeal thus set aside the High Court Judgment.
4
The applicants, aggrieved by the Court of Appeal decision filed an appeal, as of right, under Article 163 4 a of the Constitution, against the whole decision of the appellate court raising alleged constitutional grievances. Contemporaneous to the filing of the appeal, the applicants filed an application under Articles 163 3 b and 163 4 a of the Constitution, sections 15 2 , 21 2 and 24 of the Supreme Court Act, Rules 23 and 26 1 of the Supreme Court Rules 2012 and all other enabling provisions of the law seeking the following Orders:
i
That this Notice of Motion be certified as urgent and heard on priority basis spent .
ii
That pending the hearing and final determination of the Appeal herein, this Honourable Court be pleased to grant the applicant a stay of execution of the decision of the Court of Appeal [Warsame, Makhandia & Murgor JJ.A] in Civil Appeal No.313 of 2017 delivered on 20th September 2019.
iii
That the petitioner be granted leave to file this petition excluding the certified copy of the order and proceedings of the Court of Appeal in the first instance.
iv
That costs be in the cause.
5
The application is supported by the affidavit of Peter Ayodo Omenda, the 1st applicant and is, inter alia, based on the grounds that the Court of Appeal determination puts the applicants’ personal freedom in jeopardy and requires urgent attention; that the appeal has a high probability of success as it raises arguable constitutional matters as listed on the face of the application and that the proposed appeal clearly involves the interpretation and application of the constitution entitling the applicant to move this Honourable Court as of right.
6
The application was certified urgent at the first instance when it was placed before a single Judge of this Court. The first prayer of the application is therefore spent and we proceed to address the other prayers.
7
Despite the applicants having been directed by the Honourable Deputy Registrar of this Court to file and serve their submissions within seven days from 22nd November 2019, the submissions were only filed on 10th March 2020. Indeed, the Honourable Deputy Registrar noted that the last directions had not been complied with. The 1st respondent on its part had filed a preliminary objection in the main appeal challenging our jurisdiction. This objection has been separately disallowed by this Court.","C. Analysis
9
Do the applicants satisfy the criteria for stay? This Court has authority to issue Orders for the preservation, in an interim period, of a subject-matter of appeal see Board of Governors, Moi High School, Kabarak & Another v. Malcolm Bell, Supreme Court Applications Nos. 12 & 13 of 2012 . It is not automatic that for any unopposed application, the Court will as a matter of cause grant the orders sought. It behooves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted see Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 Others Civil Application No.26 of 2018 [2018] eKLR . The applicants’ assertion is that the effect of the decision by the Court of Appeal is that they will be subjected to a criminal trial, a situation that will violate their constitutional rights to fair trial and equal benefits and protection of the law as more particularly set out in the petition of appeal.
10.
We therefore find that the applicants have demonstrated an arguable case which would be rendered nugatory in the absence of our intervention by way of granting the orders sought. We shall not at this juncture delve into the merits of the applicants’ argument as they will be addressed in the appeal itself.
11
On the applicants’ prayer for leave to file the petition of appeal excluding the certified copy of the order and certified proceedings of the Court of Appeal in the first instance, we note that the appeal has already been filed being Petition No.40 of 2019. Rule 33 relates to institution of appeals and is to the effect that appeals shall be instituted by lodging in the registry within thirty days of the date of filing of the notice of appeal where the appeal is as of right. The certified decree or order as well as the record of proceedings are part of the mandatory contents of the record of appeal. Rule 33 5 grants the court power to direct which documents should be excluded from the record while Rule 33 6 allows the filing of a supplementary record of appeal, without leave and within fifteen days of lodging the record of appeal to include documents omitted from the record of appeal.
12
From the foregoing, we note that the applicants neither invoked our jurisdiction under Rules 33 5 & 33 6 nor gave any explanation or justification for the prayer sought. Neither the grounds on the face of the application, the supporting affidavit nor the submissions filed address this prayer. In the premises, we are unable to consider the prayer any further.
D. Determination
13
We therefore allow the application dated 25th October 2019 and filed on 29th October 2019 in the following terms:
14.
The execution of the decision of the Court of Appeal [Warsame, Makhandia & Murgor JJ.A] in Civil Appeal No.313 of 2017 delivered on 20th September 2019 be and is hereby stayed pending the hearing and determination of the appeal by this Court;
a
Costs to abide the outcome of the main appeal.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/71/eng@2020-04-30
Petition 40 of 2019,"Peter Ayodo Omenda, Nicholus Karume Weke, Caleb Indiatsi Mbaye, Abraham Kipchirchir Saat, Michael Maingi Mbevi, Godwin Magae Mwawongo & Bruno Mugambi Linyuri v Ethics & Anti-Corruption Commission, Director of Public Prosecution & Chief Magistrates Anti-Corruption Court (Petition 40 of 2019) [2020] KESC 70 (KLR) (30 April 2020) (Ruling)",Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",30 April 2020,2020.0,Nairobi,Civil,"Peter Ayodo Omenda, Nicholus Karume Weke, Caleb Indiatsi Mbaye, Abraham Kipchirchir Saat, Michael Maingi Mbevi, Godwin Magae Mwawongo & Bruno Mugambi Linyuri v Ethics & Anti-Corruption Commission, Director of Public Prosecution & Chief Magistrates Anti-Corruption Court",[2020] KESC 70 (KLR)               ,,"A. Introduction
1.
On 20th December 2016, the High Court, in judicial review proceedings instigated by the petitioners, granted an order prohibiting the respondents from prosecuting, sustaining, proceeding, hearing, conducting or in any manner dealing with or completing the hearing of the charges laid or proceedings conducted in the Anti-Corruption Case before the Chief Magistrates’ Court at Milimani Law Courts, Nairobi in so far as they related to the applicants. This judgment was set aside by the Court of Appeal following a successful appeal by the 1st respondent.
2.
Aggrieved by the Court of Appeal decision, the petitioners filed an appeal to this Court, as of right, under Article 163(4)(a) of the Constitution, against the whole decision of the appellate court raising alleged constitutional grievances. The appeal was filed on 29th October 2019.
3.
On 3rd December 2019, the 1st respondent filed a Notice of Preliminary Objection as to the competence of this appeal on the following grounds:
a)
The matter does not concern the interpretation or application of the Constitution;
b)
No leave was obtained prior to instituting the appeal;
c)
Consequently, the appeal is incompetent and should be struck out.
This Ruling is on the Preliminary Objection.
4.
The 1st respondent filed its submissions in support of the objection. It submits that the judicial review proceedings instituted by the petitioners were grounded on the argument that the decision to prosecute them is based on illegality, irrationality and procedural impropriety. Accordingly, it is the first time that the constitutional questions are being raised in a ploy to mislead the Court into assuming jurisdiction. That this being a second appeal, the Court should not assume jurisdiction. The 1st respondent relies on the principles espoused in Wavinya Ndeti v Independent Electoral & Boundaries Commission & 4 others [2015] eKLR and Boniface Katana Kilaveri v Ethics & Anti – Corruption Commission & Commissioner of Land [2018] eKLR. To the 1st respondents, the appeal is incompetent and should be struck out with costs.
5.
In response, the petitioners through their submissions submit that the preliminary objection should be dismissed as this appeal is as of right as it involves the interpretation and application of the Constitution. As such, no prior leave is required from this Court or from the Court of Appeal. They rely on this Court’s Ruling in Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others [2019] eKLR. The respondents further submit that the original matter in the High Court was brought under express provisions of the Constitution being Articles 10, 22, 23, 27, 28, 29, 50, 157 and 165. That the matter is therefore ripe for determination by this Court in accordance with the principles laid out in Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another [2012] eKLR.
","B. Analysis
6.
Do we then have jurisdiction to hear and determine this appeal? We have time and again delineated the contours of our jurisdiction under Article 163(4) of the Constitution. There is common ground from the submissions alluded to that our exercise of jurisdiction is based on certain principles. For an appeal to be as of right, the constitutional questions must have transcended from the courts below and not raised for the first time before us. In the same breadth, this jurisdiction can be exercised if it can be demonstrated that the Court’s determination of the issue took a trajectory of the constitutional application or interpretation. The guiding principles are well summarized in Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 others Sup. Ct Petition No.2B of 2014 [2014] eKLR.
7.
Suffice to note that the path a litigant takes is determined on the basis of the subject matter and in particular, the character of the issues involved in the subject matter. Once the Court of Appeal renders its decision, the litigant is able to elect, in advance, whether to seek certification first or proceed straight as of right (see Fahim Yasin Twaha v. Timamy Issa Abdalla & 2 Others [2015] eKLR at paragraph 41). In our ruling in Synergy Industrial Credit Limited v Cape Holdings Limited [2018] eKLR we noted that though a similar matter had been certified as involving general public importance, the petitioner was not precluded from pursuing the same issue as of right. This inevitably means that it is not for the respondent to insist on its preference but rather the petitioner to exercise the choice.
8.
The petitioners have therefore chosen to pursue their appeal as of right under Article 163(4)(a) of the Constitution. It therefore behooves us to evaluate whether indeed they meet the threshold.
9.
A perusal of the Statutory Statement dated 29th April 2019, Notice of Motion Application dated 13th May 2019 and the face of the pleadings, it is evident that while the petitioners filed judicial review proceedings, several constitutional provisions were invoked. Indeed, the notice of Motion was stated to be brought under Articles 10, 22, 23, 27, 28, 29, 41, 47, 50, 157, 159(9)(2)(a) & (b) and 259. The face of the application on the other hand listed Articles 10, 22, 23, 27, 28, 29, 50, 157 and 165. In the grounds, the petitioners allude to instances of violation of the constitutional rights ranging from abuse of criminal law and trial process, evidence in their support being ignored, excess of jurisdiction by the respondents and abuse of discretion. All these issues are tenets of a constitutional process available to a litigant particularly in a criminal trial context.
10.
Even if we were to consider the 1st respondent’s position that the petitioners’ grounds before the High Court related to illegality, irrationality and procedural impropriety, these grounds do not exclude the Constitution. An example is where the petitioners challenged the exercise of the powers of the Director of Public Prosecution under Article 157 or fair trial which stems from Article 50 of the Constitution.
11.
In our view, nothing precludes a litigant from invoking the Constitution in whatever proceedings pending before the High Court. The fact that the proceedings related to judicial review, the High Court nevertheless had powers to address any constitutional questions that arise. Without going to the merits of the High Court judgment, we take note of the following:
26.
It was therefore averred [by the Respondents] that the decision to charge the Applicants in this case alongside other suspects named in the said charge sheet . . . was based on correct interpretation of the law relating to procurement and other applicable laws and regulations in tandem with the constitution and therefore there was no violation of the constitution . . .”
The learned Judge at paragraph 42 of the Judgment went ahead to address the provisions of Article 157(10) of the Constitution relating to the office of the Director of Public Prosecution.
12.
At the Court of Appeal, the 1st respondent’s grounds of appeal included failure by the judge to appreciate that any public tendering process conducted in this country must aim at achieving the purpose and objects of Article 227 of the Constitution. At this juncture, it is worth noting that the constitutional questions decided in favour of the petitioners were not appealed by any of the respondents and to that extent, it was not incumbent upon the petitioners to pursue their constitutional arguments at the appellate stage. The situation would have been different if the appeal before the Court of Appeal was filed by the petitioners.
13.
We also considered the position in Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others [2019] eKLR in the following regard:
(12)
This Court’s jurisdiction is not sharply defined in certain cases — especially as regards claims of constitutional entitlements, the content of which stands to be ascertained individually, from one case to another. So we must consider whether the circumstances in which the criminal case against the applicant was initiated, in any way stands to compromise rights as delineated in the Constitution. Does the applicant have certain constitutional rights, which can only be safeguarded through a proper hearing of his appeal before the Supreme Court?”
14.
In purely civil cases, it is easy to address the constitutionality of the questions before court and whether they meet our jurisdictional threshold. The fact that the initial proceedings before the High Court or a court of equal status are couched as constitutional petitions may not necessarily warrant an appeal as of right. For instance, in Rutongot Farm Ltd v Kenya Forest Service & 3 others [2018] eKLR we stated:
""Even though the Appellant thus alludes to infringement of its constitutional rights, the issue for the Superior Court’s determination was, who is the rightful owner of the suit land? This would entail examination of the facts on record and based on the governing laws, deciding on who between the 1st Respondent and the Appellant was entitled to the suit land. No question of constitutional interpretation or application was therefore before those Courts or this Court. And as already stated, neither was such an issue canvassed at the superior Courts.”
15.
However, criminal cases or a mixture of criminal and civil, such as judicial review proceedings invite a more careful approach, as we have done. There however remain no fast and hard rules and each case must be considered on its merits. We reiterate our position in Hussein Khalid and 16 Others v The Attorney General & 2 Others Sup Ct. Petition No.21 of 2017 (unreported) where we stated:
121.
. . . .As we have stated above, such claims may be legitimately pursued and addressed outside the criminal justice system for the criminal justice system is not meant for addressing constitutional petitions and/or allegations of its breach thereof.”
C. Determination
16.
The summation of the above position is that we are persuaded, without going to the merits of the case, that the appeal raises constitutional issues that were originated from the High Court at the first instance. We therefore affirm that we have jurisdiction to entertain the appeal as filed and that the same should be heard on merit. Consequently, the preliminary objection dated 3rd December 2019 lacks merit and is disallowed. The costs of the objection will abide the outcome of the appeal.
Orders accordingly.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/70/eng@2020-04-30
Petition 21 of 2019,Stanley Mombo Amuti v Kenya Anti-Corruption Commission (Petition 21 of 2019) [2020] KESC 45 (KLR) (30 April 2020) (Ruling),Ruling,Supreme Court,Supreme Court,I Lenaola,30 April 2020,2020.0,Nairobi,Civil,Stanley Mombo Amuti v Kenya Anti-Corruption Commission,[2020] KESC 45 (KLR)               ,,"A. Introduction
(1)
The dispute between the parties herein revolves around an attempt by the Respondent to deprive the Appellant of assets that it claimed he had unlawfully acquired. By an Originating Summons filed at the High Court pursuant to Section 55 of the Anti-Corruption and Economic Crimes Act, 2003 (ACECA) the Respondent thus sought the determination of certain questions regarding the manner of acquisition of the Appellant’s wealth and upon hearing the said summons, Achode J. answered the questions in favour of the Respondent and also issued a decree that the Appellant was liable to pay Kshs. 41,208,000 to the Government of Kenya.
(2)
In an appeal to the Court of Appeal, the Appellant challenged that decision and in the ten grounds of appeal, specifically challenged the Learned Judge’s findings of law and fact. In its Judgment, the Court of Appeal stated that it’s “…evaluation of the evidence on record and applicable law” led it to the conclusion that the appeal had no merit and dismissed it. That decision triggered an appeal to this Court as a matter of right under Article 163(4)(a) of the Constitution.
(3)
On 9th December 2018, the Respondent then filed a Preliminary Objection seeking an order that the appeal be dismissed with costs arguing that this Court lacks the requisite jurisdiction to determine it on merit.
","D. Analysis And Determination
(9)
The jurisdiction of this Court under Article 163(4)(a) is the only issue in contest presently. In Lawrence Nduttu (supra), we stated that for an appeal to lie as a matter of right;
“
(28)
The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an Appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4)(a)”. [Emphasis Ours]
10.
In Erad Suppliers and General Contractors (supra) we then rendered ourselves as follows:
“
In our opinion, a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance, is to be resolved at that forum in the first place, before an appeal can be entertained. Where, before such a Court, parties raise question of interpretation or application of the Constitution that has only a limited bearing on the merits of the main cause, the Court may decline to determine the secondary claim if in its opinion, this will distract its judicious determination of the main cause; and a collateral cause thus declined, generally falls outside the jurisdiction of the Supreme Court.”
(11)
In the above context, we note that, as submitted by the Appellant, that the question whether Sections 26 and 55 of ACECA violated the right to property under Article 40 of the Constitution was addressed at paragraphs 74 and 79 of the impugned Court of Appeal Judgment and that Court stated thus:
“
(74)
In this matter, persuaded by the merits of the UK comparative jurisprudence, we are satisfied that the provisions of Section 26 and 55(2) of the ACECA do not violate the right to property as enshrined in Article 40 of the Constitution. In any event, constitutional protection of property does not extend to property that has unlawfully been acquired. If it were to be held that the requirement to explain violates the right to property under Article 40 of the Constitution, enforcement of a Notice issued under Section 26 of ACECA and the requirement to explain the source of disproportionate assets would be rendered nugatory. We decline to so hold.”
and
“(79)
Under Section 55(2) of ACECA, the theme in evidentiary burden in relation to unexplained assets is prove it or lose it. In other words, an individual has the evidentiary burden to offer satisfactory explanation for legitimate acquisition of the asset or forfeit such asset. The cornerstone for forfeiture proceedings of unexplained assets is having assets disproportionate to known legitimate source of income. Tied to this is the inability of an individual to satisfactorily explain the disproportionate assets. A forfeiture order under ACECA is brought against unexplained assets which is tainted property; if legitimate acquisition of such property is not satisfactorily explained, such tainted property risk categorization as property that has been unlawfully acquired. The requirement to explain assets is not a requirement for one to explain his innocence. The presumption of innocence is a fundamental right that cannot be displaced through a Notice to explain how assets have been acquired”. [Emphasis Ours]
(12)
It is also obvious from a perusal of the Judgment rendered by Achode J. that whereas, in the Originating Summons filed by the Respondent at the High Court, no specific reference was made to the need to interpret and apply the Constitution, Rawal J. in the matter before her had directed that submissions ought to be made on the above issue. The Court of Appeal in overturning her Judgment found that the learned Judge had crafted, suo motu, the constitutional question regarding Sections 26 and 55 of ACECA and dismissed the Originating Summons without taking any evidence and addressing the factual issues raised therein.
(13)
Achode J. on her part, took oral evidence and heard submissions before rendering her Judgment. At para. 59 thereof she then stated that “the issue that arises for determination is whether the defendant is in possession of unexplained assets …” and “whether the defendant be ordered to forfeit landed properties as well as the value of the developments thereon amounting to Kshs.32,500,000/-“
(14)
In the entire analysis of the evidence before her and in applying the law to that evidence, nowhere did Achode J. make any reference to the Constitution nor did she even attempt to interpret or apply Sections 26 and 55 in the context of their constitutionality or otherwise. In making her final orders at para 96 of the Judgment therefore, no orders were also made regarding the constitutionality or otherwise of the exercise of forfeiture of unexplained assets under those Sections.
(15)
Having found as above and having reproduced paras 74 and 79 of the impugned Judgment, what were the specific grounds of appeal from the Judgment of Achode J.? In the Memorandum of Appeal dated 12th June 2018, the Appellant preferred 23 grounds of appeal. It is only in ground No.1 that any reference to the Constitution is made as follows:
“
(1)
The Learned Judge misdirected herself as to the law provided under the Constitution of the Republic of Kenya Article 40 and 50 and Section 55 of the ACECA Act 2003 as to the threshold on forfeiture of property.”
(16)
It is again obvious to us that the Appellant, in crafting the above issue was focused more on the “threshold of forfeiture of property” than on the specific constitutional questions revolving around interpretation or application of Articles 40 and 50, which matter we have stated, was outside Achode J.’s remit. The question that is left unanswered is whether the findings of the Court of Appeal at paragraphs 74 and 79 reproduced above, are sufficient to trigger our jurisdiction?
(17)
In Erad, we specifically stated that where the interpretation or application of the Constitution has only but a limited bearing on the merits of the main cause, then the jurisdiction of this Court may not be properly invoked. Indeed, in Aviation and Allied Workers Union (supra) we added that the mere reference to the rich generality of constitutional principle as the Court of Appeal did in the present case, is not a sufficient ground to invoke Article 163(4)(a). The same must be said of the present cause.
(18)
It is thus our finding in the above context that reference to Articles 40 and 50 of the Constitution were introduced by the Appellant at the Court of Appeal and even then, peripherally so. The Court of Appeal thereafter rendered itself in passing only and the bulk of its Judgment was saved to an evaluation of the evidence on record in the context of Sections 26 and 55 of ACECA and not the Constitution per se.
(19)
Having held as above, it is our conclusion that Article 163(4)(a) was wrongfully invoked by the Appellant and the Preliminary Objection is therefore merited.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/45/eng@2020-04-30
Civil Application 1 of 2020,"Tullow Oil Plc & 3 others v PS, Ministry of Energy & 15 others (Civil Application 1 of 2020) [2020] KESC 49 (KLR) (30 April 2020) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",30 April 2020,2020.0,Nairobi,Civil,"Tullow Oil Plc & 3 others v PS, Ministry of Energy & 15 others",[2020] KESC 49 (KLR)               ,,"A. Introduction
1.
On 8th May 2019, this Court delivered a Ruling in which we allowed a Notice of Motion dated 28th February 2018 by Tullow Oil PLC, Africa Oil Turkana Limited, African Oil Kenya Limited and Angus McCoss seeking orders that the present Applicant’s Notice of Appeal dated 8th August 2016 be deemed as withdrawn and in the alternative that the same be struck out. In effect, we terminated the Applicant’s attempt at filing an appeal before this Court.
B. The Application
2.
Before us now is a Notice of Motion dated 13th January 2020 by the Applicant, who was the 16th Respondent in Eldoret C.A. No.376 of 2014, C.A. No.18 of 2015 and C.A. No.45 of 2015, as consolidated. The Motion is expressed to be brought under Sections 1A, 1B, 3A and 100 of the Civil Procedure Act, Cap.21, Section 3 of the Supreme Court Act as well as Articles 1,2, 3(1), 10, 19-23, 27, 40, 47, 48, 50, 156(6), 159(2) (d), 166(2)(c), 259 and 260 of the Constitution.
3.
The Applicant prays that the Ruling aforesaid be “recalled, set aside, rescinded, nullified and voided ab initio” with attendant costs and in unnecessarily verbose and largely incoherent grounds set out in the body of the Motion, the Applicant has termed the Ruling ultra vires, reckless, inept, partisan, prejudicial, unethical and vexatious. He has also claimed that the same was obtained “at the behest of the incurable and irredeemable, deceitful and fraudulent concealment and misrepresentation of material facts … peddled by …” Counsel for Tullow Oil PLC. In addition, the Applicant has alleged that the Ruling contains patent accidental slip errors and mistakes. Numerous scandalous allegations are also made against both Counsel and his client, Tullow Oil PLC, which we consider wholly irrelevant in the determination of the Motion before us.
4.
In his Affidavit in support of the Motion, the Applicant has largely dwelt on contested issues of fact leading to the stillborn attempt at filing his appeal and since those matters are irrelevant to any consideration of his Motion, we deem it unnecessary to reproduce them.
5.
In any event, in his submissions filed on 25th February 2020, the Applicant, upon reproducing the dates pleadings were filed in the superior Courts below (in great detail) as well as dates for appearances by parties before those Courts and orders issued, has repeated the allegations of deceitful, fraudulent concealment and misrepresentation of material fact by Tullow Oil PLC and it’s Counsel. All other matters raised have absolutely no relevance to the determination of the Motion before us. They are with respect, a rumbling narration of facts and statutes that are difficult to comprehend and are of no use to us.
C. Response To The Appplication
6.
From the record, although served, none of the Respondents to the Application have filed any replying affidavits nor submissions. The Deputy Registrar, having given them sufficient time to do so, placed the matter before the Hon. the Chief Justice for constitution of this Bench.","D. Analysis And Determination
7.
In other circumstances, depending on its nature, where an application is unopposed, and the Court sees merit in it, then it should be granted without much ado. Not the present Motion as the same is fraught with all manner of difficulties.
8.
Firstly, a party approaching any Court ought to indicate, with a measure of precision, what procedure it is invoking in doing so. In that regard, it is basic that the Civil Procedure Act, Cap.21 does not apply to proceedings before this Court and therefore setting aside of orders under that Act is an alien procedure to this Court.
9.
Secondly, the Applicant seeks orders to recall, set aside, rescind, nullify and void the orders we issued on 8th May 2019. No specific rule contained in the Supreme Court Rules, 2011 has been cited in that regard. That anomaly notwithstanding, Rule 23 of the said Rules provides that “an interlocutory application to the Court shall be by Notice of Motion … and shall be supported by an Affidavit.” and to that extent, we must address the Applicant’s Motion on its merits.
10.
[10] Thirdly, the nature of an interlocutory application for example whether it be for an injunction, stay orders, or setting aside is not stated in the Rules but Rule 24 provides specifically for applications for grant of certification while Rule 25 for leave to join proceedings as an Interested Party. No specific Rule provides for the prayers the Applicant seeks.
11.
We must at this stage note, in passing only that, the Supreme Court Rules 2020 have amended the 2011 Rules which were applicable when the present Application was filed and provide for example in Rule 31 that “an interlocutory application shall not be originated before a Petition of appeal or reference is filed before the Court.” We further note that in fact there is presently no Petition of Appeal before us to authenticate the substantive issues we may later deal with. We digress however.
12.
With the above background in mind, do we have the jurisdiction to grant the orders sought by the Applicant? In answer to the question, it must be recalled that, what the Court previously did was to strike out the Appellant’s Notice of Appeal. The reasons for doing so are captured at paragraph 29 of our Ruling where we stated thus:
“
In the present Application, we note [that] the Notice of Appeal was filed 8th August 2016 and the time for filing an appeal as of right lapsed on 7th September 2016. Up to date there is no appeal filed. The time for filing an appeal under Article 163(4)(b) lapses 30 days after the grant of certification. There is nothing on record to confirm that the 16th Respondent sought certification, and if the same was allowed, and when it was allowed. In a nutshell, it is our finding that the 16th Respondent has failed to provide sufficient grounds for his failure to file his appeal within the prescribed time. We are inclined to allow the application with costs to the Applicants.”
13.
In his Motion, Supporting Affidavit and Submissions, the Applicant has completely failed to address the above issue. Instead, he has gone on a tangent to attack Tullow Oil PLC and its Counsel as having obtained the orders by fraud and concealment of, and misrepresentation of fact. Not one piece of credible evidence, save conjecture and speculation, has been produced to prove these very serious allegations.
14.
Fourthly, while therefore there is no express provision in our Rules granting us the jurisdiction to set aside, rescind or annul our orders, even on the merits, the Application is so scandalous and devoid of any merit that to grant it would only placate a dissatisfied litigant who has misunderstood the real reason his Notice of Appeal was struck out.
15.
Lastly, the Applicant must be told, without reservation, that he has hit the end of the road. Litigation, however painful, must come to an end. He is flogging a dead horse and he ought to busy himself with other ventures of use to him. In other words, his Application is one for dismissal but because it was not defended, we shall make no orders as to costs.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/49/eng@2020-04-30
Petition 33 of 2019,University of Eldoret & another v Sitienei & 3 others (Petition 33 of 2019) [2020] KESC 72 (KLR) (30 April 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",30 April 2020,2020.0,Nairobi,Civil,University of Eldoret & another v Sitienei & 3 others,[2020] KESC 72 (KLR)               ,,"We have two applications in this appeal. The first one dated 20th August 2019 and filed on 23rd August 2019 is by the Petitioners. It seeks a stay of execution of the judgment and decree of the Court of Appeal at Nakuru delivered on 18th October 2018. The second one is by the 1st and 2nd Respondents (the Respondents). It seeks the striking out of both the Notice and Record of this Appeal. We wish to start with the second application.
2.
This appeal is brought as of right under article 163(4)(a) of the Constitution. The Respondents’ said application to strike it out is premised on the ground that this Court lacks jurisdiction to entertain it. In the alternative, the Respondents seek an order that the Petitioners deposit security in the sum of Shs.29,886,063/= within such time as circumscribed by the court. The Respondents also seek that the costs of the appeal be borne by the Petitioners. The application is supported by an annexed affidavit of the 1st Respondent, Hosea Sitienei on his own behalf and with the authority of the 2nd Respondent.
3.
The background of the matter is that the 1st and 2nd Respondents were the Finance Officer and Deputy Vice Chancellor, Finance and Administration respectively of the 1st Petitioner. In July 2015, they were suspended from duty pending investigations on allegations of involvement in the unrests at the University at the time. They filed suit before Employment and Labour Relations Court (ELRC) at Nakuru (No.8 of 2015) seeking an order to stop the intended investigation. On 6th November 2015, Radido J, declined to halt the investigations directing the University to serve them with the investigation results before undertaking any disciplinary action against them. The University did not comply. Instead, it commenced disciplinary proceedings prompting the Respondents to separately file petitions (Nos. 1 and 2 of 2016) seeking similar reliefs. Though Radido J. held that he had jurisdiction, he did not interfere with the disciplinary proceedings since, in his view, there were adequate Constitutional and statutory safeguards to remedy any unfair administrative action or unlawful termination of employment. The Respondents were subsequently terminated from employment.
4.
Aggrieved, the duo filed petitions numbers 10 and 11 of 2016 challenging their termination for being unlawful, irregular and illegal, contending that it violated Constitutional and statutory provisions and the orders of 6th November 2015 for violating their right to fair trial. They also contended that as constituted, the University Council did not have the mandate to undertake disciplinary process. They accordingly sought declaratory reliefs or in the alternative, compensation.
5.
The Petitioners opposed the petitions contending that they were res judicata; that they were misconceived for merely raising personal and private law issues disguised as Constitutional issues; that the disciplinary process was fair and lawful; and that members of the University Council were legally in office.
6.
Marete J. heard the two petitions separately and by judgments dated 24th November 2016, dismissed them as res judicata. That prompted the Respondents to file separate appeals that were consolidated by the Court of Appeal. In its judgment dated 18th October 2018, the Court of Appeal allowed them. In their application dated 31st December 2018 and filed on 8th January 2019, the Petitioners sought a review of that decision. The Court of Appeal dismissed that review application provoking this appeal which, by this application, the Respondents want struck out.
7.
The main ground in support of the present application is that the Petitioners cannot appeal as of right as there was nothing touching on the interpretation or application of the Constitution and the same having not been certified under Article 163(4)(b) of the Constitution as raising a matter of general public importance, this Court lacks jurisdiction to entertain it. Citing the cases of Lawrence Nduttu & 6000 Others v. Kenya Breweries Limited & Another SC Petition No.3 of 2012 [2012] eKLR, Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 others SC Petition No.10 of 2013 [2014]eKLR, Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others SC Application No.5 of 2014 [2014]eKLR, Aviation & Allied Workers Union of Kenya v Kenya Airways Limited & 3 Others SC Petition No.4 of 2015 [2017]eKLR and Musa Cherutich Sirma v. Independent Electoral and Boundaries Commission & 2 Others [2019] eKLR the Respondents submit that the Petitioners must show how the appellate court disposed of the matter by way of interpreting or applying a particular provision of the Constitution. They submit that the issues before the Court of Appeal were whether the matter was res judicata and the composition of the 1st Petitioner’s Council under Section 36(1)(d) of the Universities Act 2012 and not any Constitutional provision as alleged.","The main ground in this application is whether we have jurisdiction to entertain this appeal. The Respondents, as already pointed out, argued that there having been no issue of Constitutional interpretation or application, this appeal founded on Article 163(4)(a) is untenable. The Petitioners maintain that this appeal is well founded on Article 163(4)(a).
11.
There is common ground and all the parties appreciated it, that for us to exercise our jurisdiction, certain cardinal considerations must be met. In the case of an appeal founded on Article 163(4)(a), there must have been the issues of Constitutional contestation that transcended the court hierarchy and formed the basis of the determination by the courts resting with the Court of Appeal. Similarly, our jurisdiction under Article 163(4)(a) can be exercised as of right if it be demonstrated that the court’s determination of the issue took a trajectory of the Constitutional application or interpretation. To determine whether or not an appeal meets that threshold, as we stated in Fahim Yasin Twaha v. Timamy Issa Abdalla & 2 Others [2015] eKLR, this Court has to ascertain the character of the issues in the subject matter of litigation.
12.
The main question that we interrogate is whether the appeal fits within either of the above principles. A consideration of the petition of appeal reveals that it is an appeal as of right against the ruling on review delivered on 9th July 2019 in which the Court of Appeal rendered as follows:
“
The crux of this application is whether there are exceptional circumstances that would justify the review of the Court’s judgment. Having carefully considered the application, the exceptional ground that the University and the Vice Chancellor are relying upon for review of the judgment is the interpretation of Section 36(1)(d) of the Universities Act, under which they contend it is the duty of the Cabinet Secretary rather than the University to appoint the Council” (emphasis ours).
13.
Despite the above position, the Petitioners made no spirited attempt to subject this exceptional ground to the confines of our jurisdiction under Article 163(4)(a) in terms of the principles elucidated above. Instead, they couched their appeal on the basis of the Court of Appeal judgment delivered on 18th October 2018. There is no evidence before us to demonstrate that the judgment of 18th October 2018 was being appealed. Indeed, the Notice of Appeal filed by the Petitioners is instructive that the appeal is against the entire ruling of 9th July 2019.
14.
Had the appeal been against the judgment, we could perhaps have been persuaded differently. Any attempt by the petitioners to merge the two decisions in their appeal in our view is ingenious but must nevertheless be stifled at the outset. The issues of res judicata, fair hearing and Order 21 Rule 4 and Rule 28 and ELRC Rules 2016 were never canvassed in support of the application for review subject of the present appeal. The fact that the initial proceedings were couched as Constitutional petitions before ELRC does not of itself confer jurisdiction. This was the import of our decision in Rutongot Farm Ltd v Kenya Forest Service & 3 Others [2018] eKLR where we stated:
“
Even though the Appellant thus alludes to infringement of its Constitutional rights, the issue for the Superior Court’s determination was, who is the rightful owner of the suit land? This would entail examination of the facts on record and based on the governing laws, deciding on who between the 1st Respondent and the Appellant was entitled to the suit land. No question of Constitutional interpretation or application was therefore before those Courts or this Court. And as already stated, neither was such an issue canvassed at the superior Courts.”
15.
The contention before the courts was therefore not the Constitutionality or application of the said Section 36(1)(d) of the Universities Act but rather, the evidence to support compliance with the provision, which the University and the Cabinet Secretary failed to do to the Court of Appeal’s satisfaction. We are unable to fathom any Constitutional issue arising from this context to warrant our assumption of jurisdiction as sought.
16.
Having reached this conclusion, we do not find it necessary to consider the other issues raised in the application.
17.
Having struck out this appeal, the Petitioners’ application for stay of execution dated 20th August 2019 and filed on 23rd August 2019, has no legs to stand on. It is accordingly dismissed.
18.
Considering the chequered history of the parties and their litigation, we find that to promote the finality of the dispute, each party should bear its own costs before us. The substantive dispute already having been determined by the Court of Appeal, we see no need to escalate the dispute to the limited extent of costs only before the Supreme Court, the appeal not having been heard on merit. This is a unique type of dispute involving a public institution from which we believe the applicants have already obtained sufficient legal redress under the circumstances.
19.
In the end we find that we do not have jurisdiction over the appeal under Article 163(4)(a) of the Constitution and make the following Orders:
a)
The Petitioners’ application for stay of execution dated 20th August 2019 and filed on 23rd August 2019, is hereby dismissed.
b)
The 1st and 2nd respondents’ application dated 4th September 2019 is hereby upheld to the extent that this Honourable Court lacks jurisdiction to entertain the appeal;
c)
The petition of appeal dated 9th August 2019 is struck out.
d)
Each party shall bear the costs of the application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/72/eng@2020-04-30
Application 13 of 2019,Dhanjal v Dhanjal & 4 others (Application 13 of 2019) [2020] KESC 69 (KLR) (7 February 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",7 February 2020,2020.0,Nairobi,Civil,Dhanjal v Dhanjal & 4 others,[2020] KESC 69 (KLR)               ,,"
1.
By his Originating Motion dated 8th April 2019, Nirmal Singh Dhanjal, the applicant, seeks a review of the Court of Appeal’s order dated 4th April 2019 denying him certification that his intended appeal to this Court involves a matter of general public importance. The application is brought pursuant to the provisions of Article 163(4)(b) & (5) of the Constitution and Rule 24(2) of the Supreme Court Rules, 2012.
2.
The brief facts of the case are that one Jaswant Singh Boor Dhanjal (deceased) died intestate and was survived by five (5) children being the 1st, 2nd, 4th and 5th Respondents and one Surjit Singh Jaswant. By consent of the deceased’s family, the 2nd Respondent petitioned and was on 26th of July 2006 issued with a temporary grant of letters of administration in Succession Cause No. 20 of 2006. Prior to that grant, however, on 9th March 2006 the 2nd Respondent purportedly entered into a settlement agreement with the deceased’s brothers pursuant to which certain shares of the deceased’s estate, along with other properties, were disposed of.
3.
Aggrieved by those alienations, the 1st Respondent, one of the sons and a beneficiary of the estate of the deceased, challenged them and by her ruling delivered on 13th October 2016, Thande J, granted that application and nullified the settlement agreement of 9th March, 2006 together with the transfer 0f the deceased’s 18,750 shares in Dhanjal Investments Limited. She also made an order for the rectification of the register of members of Dhanjal Investments Limited and restored the deceased’s name onto that register.
4.
Upon the dismissal by the Court of Appeal of his appeal against that decision, Nirmal Singh Dhanjal’s (the Applicant herein), vide his application dated 21st February 2018, sought the Court of Appeal’s certification to appeal to this Court on the ground that his intended appeal involved matters of general public importance. In its ruling of 4th April 2019, the Court of Appeal dismissed that application as unmeritorious thus provoking the present application.
5.
This application is based on more or less the same grounds the Applicant relied on in the Court of Appeal: that the 1st Respondent, having not obtained letters of administration of the deceased’s estate, lacked locus standi to challenge the settlement agreement; that the High Court’s order of rectification and the restoration of the deceased’s name on to the register of Dhanjal Investments Limited, more than 1o years after his death, was issued without jurisdiction; and that the substitution by the courts below of express provisions of Section 93 of the Law of Succession Act with their decisions, are all matters of general public importance requiring a further input of this Court.","As the Court of Appeal quite correctly observed, the Supreme Court was not intended to be an extra tier of appeal to handle all and sundry appeals from all decisions of the Court of Appeal. “the Constitution of Kenya, 2010 intended the Supreme Court to concern itself only with important legal issues that have a clear bearing on the public interest.” It is for this reason that certification has to be obtained under Article 163(4)(b) that a matter is of general public importance to warrant an appeal to this Court. And the criteria for such certification has long been settled in many decisions of this Court. In a nutshell, as this Court stated in Hermanus Phillipus Styen vs Giovanni Gnecci-Ruscone [2013] eKLR. for an intended appeal to qualify as a matter of general public importance, it must be one, the determination of which transcends the circumstances of the particular case and has a significant bearing on the public interest.
7.
In this matter, we agree with the 1st and 4th Respondents that at the time of the transfer of the deceased’s assets, the grant to the 2nd respondent of letters of administration of the deceased’s estate had not been confirmed and the 2nd Respondent therefore lacked the authority to effect transfers of the deceased’s properties. Besides that clear impropriety, we also agree with the 1st and 4th Respondents that the issues of the 1st Respondent’s locus standi; the High Court’s order of rectification and the restoration of the deceased’s name on to the register of Dhanjal Investments Limited with or without jurisdiction; and whether or not the courts below substituted express provisions of law with their decisions, are not matters of general public importance requiring a further input of this Court. The central issue in this matter is the validity or otherwise of the settlement agreement dated the 9th March 2006. That together with other issues were decided upon the unique facts of the dispute between the parties in this matter with no bearing whatsoever on public interest. In the circumstances, we find no merit in this application and we accordingly dismiss it with costs to the 1st and 4th respondents.
8.
Pursuant to the above decision, we make the following Orders:
(i)
The Applicant’s Originating Motion dated 8th April 2019 is hereby dismissed.
(ii)
The Applicant shall bear the 1st and 4th Respondents’ costs of this application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/69/eng@2020-02-07
Civil Application 21 of 2019,Ethics and Anti-Corruption Commission v Tom Ojienda & Associates & 2 others (Civil Application 21 of 2019) [2020] KESC 56 (KLR) (7 February 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",2/7/2020,2020.0,Nairobi,Civil,Ethics and Anti-Corruption Commission v Tom Ojienda & Associates & 2 others,[2020] KESC 56 (KLR)               ,,"A. Introduction
1.
We have before us a Notice of Motion by the Ethics and Anti-Corruption Commission (EACC) dated July 18, 2019 filed under the provisions of Articles 159(2)(a) & (e) and 163(4)(a) of the Constitution, sections 21(2) and 24(1) of the Supreme Court Act as well as rules 23 and 26 of the Supreme Court Rules, 2012. It seeks stay of execution, enforcement, and/or implementation of, or reliance upon the judgment and/or decree of the Court of Appeal in Civil Appeal No. 109 of 2016 (consolidated with Civil Appeal No. 103 of 2016). The Application is supported by an affidavit sworn on July 18, 2019 by Michael Kasilon, a forensic investigator with the applicant.
B. Litigation Background
2.
While investigating suspected fraudulent payments of legal fees by Mumias Sugar Company (MSC) to the 1st respondent, the Ethics and Anti-Corruption Commission (EACC) obtained an ex-parte order from the Chief Magistrate’s Court at Kibera to have access to and investigate the 1st respondent’s bank accounts. The 1st respondent challenged that order in the High Court arguing that contrary to articles 27(1), 27(4), 40(1), 40(2), 47(1), 47(2) and 50(1) of the Constitution, EACC had abused its public powers and violated his constitutional rights to privacy, to property, to fair administrative action and to fair hearing by obtaining warrants to investigate his firm’s Clients Account without prior notice to him. He sought various declarations in that regard and an order of certiorari to quash the said Chief Magistrate’s order.
3.
Upon hearing the Petition, the High Court, Lenaola, J (as he then was), in a judgment delivered on February 5, 2016, besides quashing that order, issued a declaration that “the warrants to investigate an account given to the officers of the Commission breached the 1st respondent’s rights and fundamental freedoms under the provisions of articles 47(1) & 47(2) and 50(1) of the Constitution and were hence void for all intents and purposes.”
4.
Aggrieved by that decision, the EACC and DPP filed Civil Appeal Nos. 103 and 109 respectively before the Court of Appeal. The 1st respondent cross-appealed faulting the High Court for failing to hold that his fundamental rights to privacy, to property and not to be discriminated against were violated; and for failing to award him damages for the violation of his right to fair administrative action. The Court of Appeal (Nambuye, Kiage & Ole Kantai, JJA) consolidated those appeals and in its judgment dated 28th June 2019, dismissed those appeals and the cross-appeal holding that investigations undertaken by EACC are an administrative function subject to the provisions of article 47 of the Constitution, and directed that in exercise of its mandate, EACC should always comply with the unambiguous and clear provisions of sections 26, 27 and 28 of Anti-Corruption and Economic Crimes Act by giving notice to suspects. It is that Court of Appeal decision that has provoked the present application.
","We equally find no merit in the preliminary objection that this Court has no jurisdiction to entertain this application or even the appeal itself under Article 163(4)(a) of the Constitution. This is because in the High Court, the 1st respondent challenged the order to investigate his firm’s Clients Account on the grounds that, contrary to articles 27(1), 27(4), 40(1), 40(2), 47(1), 47(2) and 50(1) of the Constitution, EACC had violated his constitutional rights to privacy; to property; to fair administrative action; and to fair hearing. In upholding the High Court, the Court of Appeal, as stated, found that, contrary to article 47 of the Constitution, EACC had violated the 1st respondent’s constitutional right to fair administrative action. In its appeal before this Court, the applicant wants us to fault both the High Court and the Court of Appeal on, inter alia, that finding. That is clearly an issue of interpretation and/or application of the Constitution. In the circumstances, we find and hold that we have jurisdiction under Article 163(4)(a) of the Constitution to entertain both this application and Supreme Court Petition of appeal No. 30 of 2019.
11.
On the merits of the application, as stated, in its grounds upon which this application is premised, the applicant argues, inter alia, that the High Court and Court of Appeal decisions requiring notice to be given to suspects before their bank accounts are accessed, have “serious ramifications on the fight against corruption and economic crimes” in that that requirement undermines “searches as an investigative tool.”
12.
The applicant also argues that “several applications have since been filed in different Courts seeking release of documents that had been obtained pursuant to warrants issued to investigators, and that unless this Court issues stay orders, the intended appeal would be rendered nugatory and active matters pending before Courts will be lost at a great loss to the country.”
13.
On his part, the 1st respondent urged us to dismiss this application for being unmeritorious. He urged that it is trite law from the persuasive Court of Appeal decisions in Mombasa Seaport Duty Free Limited v Kenya Ports Authority [2006] eKLR and Charles Munyendo Olingo v Salim Chetechi Makokha & another [2019] eKLR that in a judgment with no positive order or decree, there is nothing to stay. He argued that in this matter, neither the High Court nor the Court of Appeal issued any positive order. The High Court found that the applicant’s attempt to investigate the 1st respondent’s bank accounts without prior notice to him was illegal and accordingly quashed the Chief Magistrate’s investigative order. The Court of Appeal upheld that decision.
14.
In the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, this Court enunciated three principles for consideration in determining applications for stay of execution. They are: “whether the appeal or intended appeal is arguable and not frivolous; that unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory; and that it is in the public interest that the order of stay be granted. Has the applicant met these criteria?
15.
We have considered these rival submissions. It is not in doubt that the fight against corruption and economic crimes is a matter of great public importance. In the circumstances, in the interest of justice and to provide guidance, a clear and authoritative statement of this Court on the issues raised is imperative. Consequently, we allow this application and direct that pending the hearing and final determination of the applicant’s appeal—No. 30 of 2019, the effect of the High Court and Court of Appeal decisions in this matter is hereby stayed. Neither party to this appeal, nor any other person shall use, apply or in any way rely upon them until the said appeal is heard and determined.
E. Orders
16.
Flowing from the above analysis, we make the following Orders:
(i)
The 1st respondent’s notice of preliminary objection dated August 1, 2019 is hereby overruled.
(ii)
The notice of motion dated July 18, 2019 is hereby granted.
(iii)
Neither party to this appeal, or any other person shall use, apply or in any way rely upon the High Court and/or the Court of Appeal decisions in this matter until the said appeal is heard and determined.
(iv)
The costs of this application shall abide the outcome of the said appeal.
Orders accordingly.
",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/56/eng@2020-02-07
Petition 10 of 2019,Gilbert Mwangi Njuguna v Judicial Service Commission & Attorney General (Petition 10 of 2019) [2020] KESC 52 (KLR) (7 February 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",2/7/2020,2020.0,Nairobi,Civil,Gilbert Mwangi Njuguna v Judicial Service Commission & Attorney General,[2020] KESC 52 (KLR)               ,,"The petitioner’s notice of motion is dated June 10, 2019 seeking extension of time to file a supplementary record of appeal. It is brought under article 163 of the Constitution and rules 21 and 53 of the Supreme Court Rules.
It is supported by an affidavit of Gilbert Mwangi Njuguna, the applicant. He has attached a copy of the unfiled supplementary record of appeal.
A. Background
2.
The applicant, Gilbert Mwangi Njuguna, was employed on September 1, 1986 by the Judicial Service Commission (JSC) as a District Magistrate II. He was later accused of involving himself in several cases of gross misconduct during his tenure with the Judiciary. He was subsequently interdicted from service on October 27, 2006 and then retired in public interest on June 23, 2008. He had attained the position of Acting Senior Principal Magistrate and at the time of interdiction, was serving at Chuka Law Courts.
3.
Aggrieved by the decision of the JSC to retire him in public interest, the applicant filed a petition dated May 4, 2009 as amended on 1July 5, 2010 in the High Court for declaratory orders inter alia that his interdiction by the JSC on October 27, 2006 was illegal, null and void.
4
Upon hearing the parties, the trial judge in a judgment dated January 28, 2014, allowed the petition and made orders, inter alia, that the purported interdiction of the applicant from Judicial Service on October 27, 2006 was illegal, null and void and that the 1st respondent (JSC) ought to re-engage the applicant at a level not lower than Senior Principal Magistrate (SPM) with effect from the date of the Judgment without loss of his accrued pension with respect to past service.
5
Aggrieved by the High Court Judgment, the 1st respondent (JSC) filed an appeal to the Court of Appeal seeking an order that the judgment of the Industrial Court (honourable Justice Nduma Nderi) dated January 28, 2014 be set aside and be substituted with an order dismissing the applicant’s further amended petition with costs. The applicant on his part cross appealed, contending, inter alia, that the trial judge erred in not allowing the amended petition dated July 15, 2010 as prayed, and also give an order for vindicatory and exemplary damages.
6
The Court of Appeal delivered a judgment on January 25, 2019 allowing the appeal by the 1st respondent (JSC). The judgment of the Employment and Labour Relation Court dated January 28, 2014 was set aside and the cross appeal by the petitioner dismissed for lack of merit. The applicant thereafter filed petition No 10 of 2019 in this court dated March 15, 2019 challenging the Judgment of the Court of Appeal.
7.
The parties appeared before the Deputy Registrar of this Court on several occasions for direction and on June 21, 2019, the 1st respondent was granted 7 days to file submissions in opposition to the application by the petitioner. The file was thereafter to be placed before the court for the empaneling of a Bench to determine the said application.","C. Determination and Analysis
11.
We have considered the parties’ pleadings concerning the application and the sole issue for determination at this stage is whether the orders sought in the application can issue.
12.
The principles for extension of time have been well settled in this court as pleaded by the applicant in the case of Nick Salat (supra). From the pleadings, the following facts are discernable: The Court of Appeal rendered its Judgment on January 25, 2019. Notice of Appeal was filed on February 1, 2019. The appeal was filed on March 19, 2019 before the typed proceedings were obtained from the Appeal Court. The typed proceedings were obtained on the March 29, 2019 and that the applicant tried to file the supplementary record of appeal on the 15th of April, 2019 but this was rejected because time within which it should have filed had lapsed. He however avers that he filed his submissions on the petition on the April 16, 2019 and the instant application on the June 11, 2019.
13.
We have examined the documents in the attached supplementary record of appeal and note that the Court of Appeal Judges signed off their notes on the March 14, 2019 which was way past the 30 days allowed for filing of a record of appeal. The petition of appeal itself was filed on 19th March before the applicant had obtained the written proceedings.
14.
The applicant has alleged that, subsequently, he attempted to file the typed proceedings through a Supplementary Record of Appeal on April 15, 2019 but this was rejected at the registry as the prescribed time to file had already lapsed.
15.
Under rule 33 of the Supreme Court Rules, the applicant was required to file the record of appeal within 30 days of the date he had filed the notice of appeal. The applicant submitted that he could not do so within the said stipulated time because there was delay in the release of the typed proceedings by the Court of Appeal. That it was not until March 29, 2019 that he obtained the same. The applicant had by then filed the petition of appeal on March 19, 2019 before he obtained the typed proceedings from the Court of Appeal.
16.
Under rule 33 of the Supreme Court Rules, the applicant was required to have filed the appeal within 30 days from February 1, 2019 when the notice of appeal was filed. In the circumstances, it is clear that the appeal should have been filed by March 3, 2019 but being a Sunday it ought to have been filed by March 4, 2019 which was the next working day. The applicant filed the appeal on March 19, 2019. This means that the applicant filed his appeal 46 days from the date the notice of appeal was filed. The appeal therefore was filed out of time, a delay of 16 days. We note that despite filing the present application for leave to file the supplementary record of appeal out of time, the applicant has not applied for leave to extend time for filing the appeal out of time. There is no prayer for such extension of time within the present application.
17.
In the circumstances, therefore, strictly, there is no valid petition of appeal on record. It follows that the present application for leave of extension of time to file a supplementary record out of time is not founded on any substantive proceedings. It is hanging in the air without any roots or foundation. As was stated in Nick Salat - “where the law provides for the time within which something ought to be done, if that time lapses, one needs to first seek extension of that time before he can proceed to do that which the law requires”
18.
The court in that case proceeded to observe and found that:
“
By filing an appeal out of time before seeking extension of time, and subsequently seeking the court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the court cannot do.
To file an appeal out of time and seek the court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court. It is unfortunate that petition No 10 of 2014 has been accorded a reference number in this court’s registry. This is irregular as the document is unknown in-law and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time the much he can do is to annex the draft intended petition of appeal for the Court’s perusal when making his application for extension of time and not to file an appeal and seek to legalize it. Petition No 10 of 2014 having been filed out of time and without leave (an order of this Court extending time), is expunged from the Court’s Record.
On the basis of the aforesaid decision, we hereby find that the filing of the so called “Petition” is a nullity and of no legal consequence. It was filed out of time and without leave (an order extending time) it must be expunged from the Court’s Record.
19.
We further note that on record is a proposed Consent letter by Joint Counsel for the parties dated June 24, 2018 and lodged in Court on November 7, 2019 and which was placed before the Deputy Registrar on November 14, 2019, for adoption of the same as a court order. This letter and proposed consent to allow extension of time to file the supplementary record out of time was placed on the file while the preparation of this Ruling was pending. We declined to have this “consent” endorsed and adopted as a court order, when we realized that the so called “petition” had been filed out of time. Endorsement and adoption of the said “consent” would have no efficacy in law.
D. Determination and Orders
20.
Flowing from our findings above, the final orders to be made are that:
(a)
The applicant’s notice of motion dated June 10, 2019 is hereby struck out.
(b)
The “Petition” of appeal dated March 15, 2019 and filed on March 19, 2019 is hereby struck out.
(c)
Each party to bear its costs.",Struck out,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/52/eng@2020-02-07
Advisory Opinion Reference 1 of 2017,Kenya National Commission on Human Rights v Attorney General; Independent Electoral &  Boundaries Commission & 16 others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR) (Constitutional and Human Rights) (7 February 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",7 February 2020,2020.0,Nairobi,Civil,Kenya National Commission on Human Rights v Attorney General; Independent Electoral &  Boundaries Commission & 16 others,[2020] KESC 54 (KLR)               ,,"A. Introduction
1
The Applicant herein is the Kenya National Commission on Human Rights (KNCHR). By way of a Reference dated 20th April 2017, the Applicant seeks to invoke this Court’s Jurisdiction pursuant to the provisions of Article 163(6) of the Constitution. The Reference in a nutshell seeks a purposive interpretation of Chapter Six of the Constitution in view of Articles 38, 50, 99, 137, 180 and 193 of the Constitution, specifically in the context of the affairs of political parties.
2.
The Reference is grounded on the contention that there is apparent contradiction, lack of clarity and/or guidance in High Court and Court of Appeal decisions on the place of Chapter Six of the Constitution, more so with regard to the leadership and integrity qualification of persons offering themselves to be elected or appointed to public service and/or offices within the Republic of Kenya
3.
The Applicant has thus averred that the Superior Courts as well as the various institutions set up under the Constitution and Statutes to vet the moral and ethical soundness of persons seeking elective or appointive offices, have interpreted the Constitution in an erroneous, restrictive, conflicting, inconsistent and incoherent manner hence the need for guidance by the apex Court. It has urged further that such interpretation has resulted in a confused jurisprudence and rendered the provisions of Chapter Six of the Constitution ineffective and toothless.
4.
The alleged contradicting decisions of the Superior Courts cited by the Applicant include: International Centre for Policy and Conflict & 5 Others v The Hon. AG & 4 others, High Court Petition No. 552 of 2012; Luka Angaiya Lubwayo & Another v Gerald Otieno Kajwang & Another, High Court Constitutional Petition No. 120 of 2013; Mumo Matemu v Trusted Society of Human Rights Alliance & others, Civil Appeal No. 290 of 2012; Marson Integrated Ltd v Minister for Public Works & Another, High Court Petition No. 252 of 2012; Benson Riitho Mureithi v J. W. Wakhungu & 2 others, Constitutional Petition No. 19 of 2014; and Commission on Administrative Justice v John Ndirangu Kariuki & IEBC, Constitutional Petition No. 408 of 2013.
5.
The Applicant also notes that a Constitutional Petition No.68 of 2017 Okiya Omtatah vs. the Jubilee Party, Wiper Democratic Movement and Maendeleo Chap Chap Part and the IEBC & AG (as Interested Parties), seeking a declaration that, only the High Court has the jurisdiction to declare that a person has contravened Chapter Six of the Constitution, was pending in the High Court. It contends that, in view of the existing and conflicting decisions from the High Court and Court of Appeal, another decision from the High Court would only add to the confusion hence the need to resolve the matter at this forum.
6
The 14 issues raised by the Applicant for an opinion by this Court are inter alia:
i.
Whether Chapter Six of the Constitution sets up a fit and proper test for leadership including elective and appointive offices.
ii.
Whether the fit and proper test for leadership required by Chapter Six is an objective test and not a subjective test in the mind of the vetting and/or appointing bodies for elective and appointive offices.
iii.
Whether the fit and proper test for leadership is wider than the criminal test of conviction for criminal offences.
iv.
Whether the vetting and/or appointing bodies/persons have an obligation to objectively and positively determine that a person seeking elective or appointive office is fit and proper.
v.
Whether persons who have been found to have breached their duty of trust to safeguard public funds and seeking to be elected at the County as Governor and Deputy County Governor or Member of County Assembly or at the Legislature as Member of National Assembly or the Senate or the Executive as the President or Deputy President should be disqualified from pursuing such office irrespective of whether he/she has been charged with a criminal offence, under the provisions of Chapter Six of the Constitution .
vi.
Whether a person found by an audit report by the Auditor General to have been responsible for loss of funds belonging to a public institution he was in charge of or that the said funds have not been applied lawfully and in an effective manner should be disqualified from seeking to be elected as the County Governor and Deputy County Governor or Member of County Assembly or at the Legislature as Member of National Assembly or the Senate or the Executive as the President or Deputy President, irrespective of whether he/she has not been charged with a criminal offence, on grounds that their breach of trust in safeguarding public funds as established by the Auditor-General’s Report amounts to contravention of the provisions of Chapter Six of the Constitution and should be disqualified from seeking to be so elected.
vii.
Whether a person seeking to be elected as the County Governor and Deputy County Governor or Member of County Assembly or at the Legislature as Member of National Assembly or the Senate or the Executive as the President and Deputy President, though he has not [yet] been charged but a recommendation has been made by either the investigative bodies like the 2nd Interested Party for him/her to be charged with an offence involving misuse of public funds or some other heinous crime impacting on his integrity, should be found to have contravened the provisions of Chapter Six of the Constitution and should be disqualified from seeking to be so elected.
viii.
Whether a person seeking to be elected at the County as Governor and Deputy County Governor or Member of County Assembly or at the Legislature as Member of National Assembly or the Senate or the Executive as the President, Deputy President and the Cabinet, and has been convicted of a criminal offence involving misuse of public funds or some other heinous crime impacting on his integrity, and the sentence has been served, should be found to have contravened the provisions of Chapter Six of the Constitution and should be disqualified from seeking to be so elected;
ix.
Whether the Independent Electoral and Boundaries Commission should be pro-active in investigating and excluding from participating in elections and/or providing information to the electorate about candidates who do not pass the integrity test as provided for in Chapter Six of the Constitution instead of leaving it to the electorate or contestants to do so.
x.
Whether the Independent Electoral and Boundaries Commission and other institutions charged with the responsibility of vetting candidates owe it to the electorate and to all citizens of the Republic of Kenya to ensure that only persons who meet the threshold of Chapter Six of Constitution should be allowed to seek to be elected.
xi.
Whether a person seeking to be elected at the County as Governor and Deputy County Governor or Member of County Assembly or at the Legislature as Member of National Assembly or the Senate or the Executive as the President and Deputy President, and has been convicted of a criminal offence involving misuse of public funds or some other heinous crime impacting on his integrity, and despite the pendency of an appeal or non-exhaustion of the appeal process against the conviction, should be found to have contravened the provisions of Chapter Six of the Constitution and should nonetheless be disqualified from seeking to be so elected.
xii.
Whether there is a contradiction between the provisions of Chapter Six of the Constitution, on the one hand, and the provisions of Articles;-
a.
38 (on the right of every citizen to make political choices);
b.
50 (on the right to be presumed innocent until the contrary is proved); and
c.
99, 137, 180 and 193, (which provides that a person is disqualified from being elected President, a member of Parliament, governor or Member of County Assembly, if the person is subject to a sentence of imprisonment of at least six months, as at the date of registration as a candidate, or at the date of election and that a person is not disqualified unless all possibility of appeal or review of the relevant sentence or decision has been exhausted, on the other hand);
xiii.
If the answer to (viii) above is in the affirmative, whether the provisions of Chapter Six of the Constitution prevail and/or take precedence over the provisions of Articles 38, 50 and 99 of the Constitution as regards persons seeking to be elected. In any event what is a correct and purposeful interpretation of the said provisions so as to give effect to the aspirations and intentions of the people of Kenya.
xiv.
Whether the criteria for qualification for elective positions at both the County and National level should apply, mutatis mutandis, to appointment to public office.
7.
The Reference is supported by an affidavit sworn by one Patricia Mande Nyaundi, the Secretary/Chief Executive Officer of the Commission, verifying the correctness of the averments in the Reference.","The 17th Interested Party challenges this Court’s Jurisdiction on three limbs namely, that the Applicant lacks the locus standi to institute the Reference before us; that the issues raised in the Reference are sub-judice in view of Constitutional Petition No. 68 of 2017 and Constitutional Petition No. 142 of 2017, and that the Reference is an appeal of the various determined Petitions by the High Court camouflaged as an application for advisory opinion.
39
The Applicant, in opposition to the Preliminary Objection has argued that the issues raised in the Reference are not and had not been the subject of proceedings before the Superior Courts and further, that the issues in the Reference are neither res sub judice nor an appeal disguised as an advisory opinion.
40.
The Respondent, the 1st, 2nd and 15th Interested Parties agree, in substance, with the Applicant and add that the Preliminary Objection is devoid of merit and contrary to public interest.
(a) Whether the Applicant has locus standi
(41)
This Court’s jurisdiction to issue advisory opinions is anchored in the Constitution by dint of Article 163(6) which stipulates that:
“
The Supreme Court may issue an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government”. [Emphasis added]
42
The same provision is reflected at Section 13 of the Supreme Court Act, 2011 (No. 7 of 2011) and Rule 41 of the Supreme Court Rules, 2016. Rule 41 states:
“
The National Government, a state organ or County Government may apply to the Court by way of reference for an advisory opinion under Article 163(3) of the Constitution”. [Emphasis added]
43
It cannot however, be said that once an applicant has invoked Article 163(6) of the Constitution, this Court, undeniably, has jurisdiction. Article 163(6) of the Constitution specifies who can seek an advisory opinion, and in what matters such an opinion may be sought.
(44)
In line with Article 163(6) of the Constitution, this Court has also developed a mechanism through which it sieves matters referred to it, to ascertain if they pass the admissibility test. Of relevance is this Court’s opinion In Re Matter of the Interim Independent Electoral Commission (supra), where the Court held:
“
(83)
…, we are in a position to set out certain broad guidelines for the exercise of the Supreme Court’s Advisory-Opinion jurisdiction:
(i)
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government”, will be determined by the Court on a case-by-case basis.
(ii)
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae.
(iii)
The Court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may if satisfied that it is in the public interest to do so, proceed and render an Advisory Opinion.
(iv)
Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial Court process.” Emphasis added)
45
In the Matter of the National Gender and Equality Commission Reference No. 1 of 2013 the Court further set out certain key considerations in applying the essentials expounded in Re Matter of the Interim Independent Electoral Commission (Supra). The Court thus set out that, a party moving the Court under Article 163 (6) must have locus standi. It held that under this condition, the Court must always consider whether the party seeking to move it, falls within the categories of parties decreed as having such standi by the Constitution. The Court would then proceed to consider the subject-matter to ascertain whether it is one involving a County Government and if it finds in the affirmative, the other considerations then come into play.
46
In that regard the Court opined;
“
However, there are certain key considerations in applying these essentials. The starting point will always be that the party must have locus standi. The Court will always consider whether the party seeking to move it, falls within the categories of parties decreed by the Constitution. The Court will then proceed to consider the subject-matter: whether it is one involving County Government. Once it rules in the affirmative, the other considerations come into play.” [Emphasis added]",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/54/eng@2020-02-07
Civil Application 10 of 2019,Kiragu v Mugambi & 2 others (Civil Application 10 of 2019) [2020] KESC 77 (KLR) (7 February 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala",7 February 2020,2020.0,Nairobi,Civil,Kiragu v Mugambi & 2 others,[2020] KESC 77 (KLR)               ,,"Before the Court is an Originating Motion brought under the provisions of Article 163 (4)(b) and (5) of the Constitution of Kenya, 2010 and Sections 15(1) and 16(2) of the Supreme Court Act, 2011. It seeks a review of the Court of Appeal’s decision of 14th March, 2019 denying the applicant certification to appeal to this Court under the rubric of matter of general public importance (GPI).
2.
The dispute giving rise to this matter pits a father (the applicant) against his sons (the respondents) on the occupation and ownership of a piece of land situate at La Marina area in Mtwapa Township and known as subdivision No. 655 (Original No. 539/39) Section III MN (the suit land). In Malindi ELC Case No. 101 of 2015, the applicant, who claims ownership of the suit land, sought a perpetual injunction to restrain the respondents from continuing to trespass on it and vacant possession. Contemporaneous with the filing of that suit, the applicant applied for an interlocutory injunction to restrain the respondents from interfering with his access or entry on to the suit property.
3.
In response to both the suit and that application, the respondents claimed they have occupied the suit land since childhood. They also filed a counter application for injunction to restrain the applicant from alienating or otherwise interfering with their quiet possession of the suit land. Angote J. heard the two applications together. In his ruling of 1st April 2016, the learned Judge dismissed the applicant’s application and allowed the one by the respondents hence maintaining the prevailing status quo on the suit land.
4.
When the applicant’s appeal against that ruling came up for hearing on 23rd November 2016, by consent of the parties, the Court of Appeal referred the matter to an alternative dispute resolution forum – the National Supreme Council of Njuri Ncheke Ya Ameru Elders (Njuri Ncheke). In its award dated 21st February 2017, the Njuri Ncheke decreed the suit land to the applicant and directed each of the respondents to give a he goat to their father (applicant) as compensation for exposing him to court ridicule contrary to the Ameru customs. The respondents contested that award contending that it was biased and did not address pertinent issues they had raised. Acceding to that plea, the Court of Appeal held that as the arbitration was not sanctioned by the court but was at the initiative of the parties with no consent to be bound by the resultant award, the court could not impose it on either party. Moreover, the Court of Appeal further held that, it is the High Court which has jurisdiction to determine challenges to arbitral awards.
5.
Aggrieved by that decision, the applicant sought the Court of Appeal’s certification to appeal to this Court but the Court of Appeal dismissed that application thus provoking the one now before us.","This application is based on the applicant’s contention that by submitting to the ADR process, the parties should be taken to have consented to be bound by the resultant award. In the circumstances, the Court of Appeal’s said decision declining to enforce an award on the ground that the arbitration was not sanctioned by the court and was not based on a written consent transcends the dispute between the parties and is therefore a matter of general public importance as it impacts on the proper implementation of Article 159(2)(c) & (3) of the Constitution.
7.
In opposing the application, the respondents urge that the issues raised do not meet the criteria for certification that this is a matter of general public importance. The respondents further argue that in any event the original matter before the ELC as well as the appeal before the Court of Appeal are still pending determination and the Applicant has not demonstrated any willingness to pursue those matters to their logical conclusion.
8.
As a general rule, the Supreme Court does not entertain appeals on interlocutory decisions where the substantive matter is still pending before the Superior courts save where the appeal is not only on a substantive determination by the Court of Appeal of a constitutional question, but also on an issue that had been canvassed right through from the High Court to the Court of Appeal even though the substantive matter is still pending before the High Court—Teachers Service Commission v Kenya National Union of Teachers & 3 others [2015] eKLR. See also Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others [2018] eKLR.
9.
In this case, the issue canvassed before the High Court was an application for an interlocutory injunction. The Court of Appeal did not determine the issue of injunction. As stated, the parties, on their own initiative, referred it to ADR and when the Court of Appeal declined to adopt the ADR award, the applicant sought certification to appeal to this Court against that refusal. So there is no substantive determination by the Court of Appeal or even the High Court of a constitutional question. Moreover, the Court of Appeal’s refusal to adopt an ADR award by Njuri Ncheke is a private matter between the parties and does not satisfy the criteria of a matter of general public importance as enunciated in the cases of Malcolm Bel v Daniel Toroitich Arap Moi & Anor [2013] eKLR and Hermanus Phillipus Steyn v Giovanni Ruscone [2013] eKLR. In the circumstances, we dismiss the application with costs.
10.
Flowing from the above determination, we make the following orders
(a)
The applicant’s Originating Motion dated March 26, 2019 is hereby dismissed.
(b)
The respondents shall have the costs of the application.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/77/eng@2020-02-07
Petition 20 of 2017,Modern Holdings (EA) Limited v Kenya Ports Authority (Petition 20 of 2017) [2020] KESC 53 (KLR) (7 February 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",7 February 2020,2020.0,Nairobi,Civil,Modern Holdings (EA) Limited v Kenya Ports Authority ,[2020] KESC 53 (KLR)               ,,"Brief facts
On diverse dates in December 2007 and January 2008, the appellant imported through the port of Mombasa containers of assorted products. Due to the 2007/2008 post-election violence in Kenya, it was claimed that only 6 out of the appellant’s 21 containers were traced and cleared. Consequently, in April 2009, the appellant filed a suit at the High Court and claiming the value of the cargo lost as well as consequential losses. After hearing the case, the High Court awarded the appellant a total sum of US $ 9,187,090 being the value of the lost consignment, loss of profits and the cost of following up the consignment.
On appeal, the Court of Appeal set aside the High Court judgment and found that under section 62 of the Kenya Ports Authority Act (KPA Act), the High Court did not have jurisdiction to entertain the appellant’s claim. The Court of Appeal also held that it was a misapprehension of the law to argue that section 62 of the KPA Act was unconstitutional for limiting the right of access to justice because it required disputes arising from the respondent’s discharge of its statutory duties under sections 12, 14, 15 and 16 of the KPA Act to be referred to arbitration. The Court of Appeal finally held that the High Court erred in entertaining the claim before the parties had attempted or exhausted the out of court settlement or arbitration procedure set out in section 62 of the KPA Act. Aggrieved by that decision the appellant filed the instant appeal.
Issues
What was the nature of an ouster clause and whether section 62 of the KPA Act was an ouster clause for outlawing court action to remedy damage suffered under some provisions of the Act?
Whether section 62 of the KPA Act which outlawed court action to remedy any damage suffered under various provisions of the Act and provided for an alternative dispute resolution mechanism through arbitration could oust the jurisdiction of the High Court and whether it was unconstitutional for:
violating the right to enforce property rights under article 40 of the Constitution.
violating the right to access to justice.
","E. Analysis
22.
From these submissions, three issues emerge for our determination:
(i)
whether section 62 of the KPA Act is an ouster clause; and
(ii)
whether section 62 of the KPA Act is unconstitutional for fouling articles 10, 40, 48, 50(1), 159(2)(d) and/or 165(3) of the Constitution.
(iii)
If the answer to (ii) above is in the negative, what remedy is available.
(i) Whether section 62 of the KPA Act is an ouster clause
23.
The appellant contended that section 62 of the KPA Act is an ouster clause and is therefore unconstitutional. This is because the 2010 Constitution has rendered all ouster clauses in our law unconstitutional and no ouster clause can override provisions of a Constitution. What is an ouster clause?
24.
In Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others, S.C Petitions 13A of 2013 as consolidated with Petition 14 of 2013 and Petition 15 of 2013 [2014] eKLR, this Court had occasion to deal with the issue of an ouster clause. At paragraph [115], it observed that:
“
[115]
.... Ouster clauses are provisions in the Constitution or a statute that take away, or purport to take away the jurisdiction of a competent court of law. They deny the litigant any judicial assistance in the relevant matter, and at the same time deny the courts the scope for making any arbitral contribution with respect to the relevant matter. In short, ouster clauses curtail the jurisdiction of the court, as the relevant matter is rendered non-justiciable before the courts.”
25.
In the light of this authority, an ouster clause is one which denies an aggrieved party the right to litigate his claim before a court of law “thus rendering [it] non-justiciable before the Courts.” This means that a person who suffers damage in a given matter has no legal remedy. Does section 62 of the KPA Act render disputes thereunder non-justiciable? The section provides that:
“
In the exercise of the powers conferred by sections 12, 14, 15 and 16, the Authority shall do as little damage as possible; and, where any person suffers damage, no action or suit shall lie but he shall be entitled to such compensation therefore as may be agreed between him and the Authority or, in default of agreement, as may be determined by a single arbitrator appointed by the Chief Justice.”
26.
Far from disentitling an aggrieved party a remedy, as a matter of fact the section expressly entitles him compensation for any damage suffered. While it provides that “no action or suit shall lie”, it nonetheless authorizes any person suffering damage thereunder to negotiate with the Kenya Ports Authority a settlement through negotiation failing which then the matter should be referred to arbitration.
27.
In the circumstances, section 62 of the KPA Act is not an ouster clause as the appellant contended.
(ii) Whether section 62 of the KPA Act is unconstitutional for fouling articles 10, 40, 48, 50(1), 159(2)(d) and/or 165(3) of the Constitution.
28.
The second issue raised in this matter is whether section 62 of the KPA Act is unconstitutional for fouling articles 10, 40, 48, 50(1), 159(2)(d) and/or 165(3) of the Constitution. article 10 of the Constitution enumerates the national values and principles of good governance as:
“
patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; good governance, integrity, transparency and accountability; and sustainable development.”
The article obliges ""State organs, State officers, public officers, and all persons whenever any of them—applies or interprets this Constitution; enacts applies or interprets any law; or makes or implements public policy decisions”, to be governed by those principles.
29.
The appellant has not demonstrated how section 62 of the KPA Act fouls any of these values or principles. In the circumstances, we find that section 62 of the KPA Act does not run counter to article 10 of the Constitution.
30.
The appellant also contended that by outlawing court action to remedy any damage suffered under sections 12, 14, 15 or 16, section 62 of the KPA Act violates the appellant’s right to enforce its property rights under article 40 of the Constitution. That is not correct.
31.
The section does not forbid or outlaw court action for relief. That section does not grant the Kenya Ports Authority immunity from all judicial intervention or dispute resolution processes. It simply provides for an alternative dispute resolution (ADR) mechanism by way of negotiations and arbitration in the settlement of any dispute arising under any of sections 12, 14, 15 or 16 of the KPA Act. Ogola, J underscored this point in Reddington (Uganda) Ltd v. Office of the Attorney-General & Another [2018] eKLR, where he observed that:
“
…section 62 of the KPA Act does not infringe on the Petitioner’s right to property as entrenched under article 40 of the Constitution nor its right to access to justice under article 48 of the Constitution. section 62 of the KPA Act merely provides other modes of dispute resolution by which the Petitioner can access justice and in turn safeguard its right to property.”
32.
In its judgment giving rise to this appeal, the Court of Appeal observed that section 62 of the Act does not at all oust the jurisdiction of the court but merely limits and postpones it in the first instance. By article 165(3)(e) and (6) of the Constitution, the High Court does, not only retain both appellate and supervisory jurisdiction but has also the final adjudicatory powers over the matters referred to arbitration. The promulgation of the 2010 Constitution neither affected section 62 of the Act nor does section 62 override article 165(3)(a) which expressly grants ""unlimited“original jurisdiction in Criminal and Civil matters”. Similarly, article 159(2)(c) which encourages alternative forms of dispute resolution including arbitration on which section 62 aforesaid is anchored, merely creates an alternative but concurrent jurisdiction in resolving disputes.
33.
With increased globalization of commerce, arbitration has  become one of the preferred ADR mechanisms for settling international disputes.  It is, in particular, the major ADR process appropriate for resolution of complex commercial disputes especially those involving technical issues. In his book, Law, Practice and Procedure of Arbitration, (Second Edition), Prof. Sandra Rajoo underscored this point in his observation that:
“
…arbitration is now a generally accepted method of resolving disputes in a variety of commercial transactions, in particular those in specialised or technical industries such as shipping, construction, energy and financial services sector.” 2
2
Datuk Professor Sandra Rajoo, Law, Practice and Procedure of Arbitration (Second Edition), LexisNexis Malaysia Sdn Bhd (Co. No. 7625-H), at p 6. In the 2013 Survey by PWC, Corporate Choice in International Arbitration, 2013 PWC, a majority of the respondents stated that arbitration was the preferred mode of resolution of their disputes.
34.
The issue giving rise to this appeal is loss of the appellant’s cargo while in the hands of the respondent in its business as stevedore, wharfinger and/or warehousemen. Determination of the value of such cargo invariably require expertise. As stated above, arbitration is only one of the methods of expeditiously resolving such disputes and that explains the efficacy of section 62 of the KPA Act. So far from denying the appellant the right to enforce its property rights, the section is in fact meant to enable claimants to expeditiously and more efficiently enforce their property rights.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/53/eng@2020-02-07
Petition 18 of 2016,Okoiti v Independent Electoral and Boundaries Commission & another; Kenyatta & 7 others (Interested Parties) (Petition 18 of 2016) [2020] KESC 68 (KLR) (7 February 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",7 February 2020,2020.0,Nairobi,Election Petition,Okoiti v Independent Electoral and Boundaries Commission & another; Kenyatta & 7 others,[2020] KESC 68 (KLR)               ,,"A. Introduction
1.
The Petition before the court is dated October 27, 2017, and lodged on even date. The petitioner seeks the interpretation of article 140 as read with articles 138 and 139 of the Constitution. In particular, the petitioner seeks a determination of the question as to what threshold must be met, in order to trigger a fresh presidential election within the meaning of article 140(3) of the Constitution. The petitioner also seeks a determination of the effect of the withdrawal from the 26th October fresh presidential election by the 2nd Interested Party herein.
B. Background
2.
Following the August 8, 2017General Elections, the 1st respondent declared the 1st Interested Party, Uhuru Muigai Kenyatta, the winner of the elections and the 2nd Interested Party, Raila Amolo Odinga, the runner up, on 18th August 2017, filed a presidential election petition, Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 others, No 1 of 2017 (hereinafter, Raila Odinga 2017) challenging the validity of the election.
3.
On 1st September 2017, this court annulled the 8th August 2017 presidential election on grounds that the same was not conducted in accordance with the Constitution and applicable election laws. the court consequently ordered the 1st respondent, to organize and conduct a fresh presidential election, under article 140(3) of the Constitution, within 60 days of the determination. Following several developments, the fresh election was fixed to take place on 26th October 2017, by the 1st respondent.
4.
On October 10, 2017, the 2nd Interested Party withdrew from the fresh election claiming that, the 1st respondent had failed to undertake basic reforms that could ensure a credible, fair and accountable election.
5.
On 11th October 2017, the petitioner filed Constitutional Petition No 504 of 2017, Okiya Omtatah Okoiti v The Independent Electoral and Boundaries Commission & 3 others, seeking inter alia, the determination of the question as to the effect of the withdrawal from fresh election by the 2nd Interested Party. On October 24, 2017, the High Court (Mativo J) dismissed the petition on the basis that the subject matter jurisdiction was reserved exclusively to the Supreme Court. the court’s reasoning was guided by this court’s decision in the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion No 2 of 2010.
6.
Following the High Court decision, the petitioner has filed this appeal seeking the following reliefs:
(i)
A declaration that the Supreme Court decision in Raila Odinga 2013 was part of the elections laws in force when the NASA presidential and deputy candidates abandoned the repeat election scheduled for 26th October, 2017;
(ii)
A declaration that the decision by NASA presidential and deputy candidates to withdraw from the election was fatal to the said election and effectively and irreversibly cancelled the said election; exiting article 140(3) and kicking into operation article 138(8)(b) of the Constitution;
(iii)
A declaration that the elections held pursuant to article 140(3) of the Constitution were invalid, null and void;
(iv)
A declaration that IEBC ought to have held the election within sixty days from 10th October, 2017, being on or before the 10th December, 2017, preceded by fresh nominations;
(v)
A declaration that the law in force during the 8th August, 2017 presidential elections was the law applicable in the election;
(vi)
A declaration that section 83 of the Elections Act 2012 is unconstitutional, null and void;
(vii)
An order compelling the 1st and 2nd respondents to hold fresh presidential elections preceded by fresh nominations, pursuant to articles 138(8)(b) and 138(9) of the Constitution and under the election laws in force during the annulled 8th August 2017 presidential elections;
(viii)
Cost of the suit; and
(ix)
Any other relief the court may deem just to grant .
7.
The petitioner’s case in a nutshell is that the fresh election of October 26, 2017, was conducted in violation of the Constitution and electoral laws.
","F. Analysis
(i) On Jurisdiction
46.
Both the respondents and Interested Parties have vigorously opposed this Petition for want of jurisdiction. It is their argument that, this court lacks jurisdiction to hear and determine the Petition. It is their further argument that, even if this court had jurisdiction to entertain the Petition (which it doesn’t), the same is moot, as all the issues raised by the petitioner have either been conclusively determined by this court or are pending at the court of Appeal.
47.
The submissions challenging the court’s jurisdiction have been comprehensively highlighted in the foregoing paragraphs. The respondents submit that the Petition, is disguised as seeking the interpretation by this court, of various articles of the Constitution while in essence, it is in reality, challenging the validity of the repeat presidential election held on the 26th October of 2017. In the respondents’ view, any declarations or Orders emanating from this court, as a result of the Petition herein, would be a pronouncement about the validity or otherwise of the said election. They also argue that, even if the Petition simply seeks the interpretation of various articles of the Constitution, the same is misconceived as the jurisdiction to interpret the Constitution in the first instance, lies with the High Court.
48.
The petitioner on the other hand, is categorical that this court has the requisite jurisdiction to hear and determine the Petition. It is his contention that the Supreme Court has the exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of the president. This exclusive original jurisdiction, in the view of the petitioner, also vests the court with original jurisdiction to interpret all the articles relating to the election of a president. He urges the court to seize the moment and clarify a number of questions that he has identified in the Petition.
49.
We have carefully considered the reasoned positions of all parties to the Petition regarding the jurisdiction of this court. Towards this end, and as has been the practice of this court in disputes wherein jurisdictional questions have arisen, we have to turn back to article 163(3) of the Constitution. In this regard, we focus upon article 163(3) (a) which, provides that the Supreme Court shall have:
“
exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under article 140…” (Emphasis added).
article 140 (1) on the other hand provides that:
“
A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.” (Emphasis added).
50.
We hasten to restate the position that, the Constitution confers upon the Supreme Court, exclusive original jurisdiction, to determine disputes relating to the election of the President arising under article 140 only. Though exclusive and original, this jurisdiction is limited to the circumstances contemplated in article 140(1). It is not a blanket jurisdiction that empowers the Supreme Court, to flex its judicial authority over any and all interpretational questions, touching upon the election of the President. It must be further emphasized that, article 163(3) of the Constitution does not oust the High Court’s original jurisdiction to interpret the Constitution under article 165(3)(d). The Supreme Court’s exclusive and original jurisdiction to determine the validity of a presidential election, only kicks in after the declaration of results, following a petition challenging the election; (see Aluochier and Ekuru Aukot) (supra).
51.
Applying these principles to the Petition herein, we have no hesitation in agreeing with the respondents’ submissions (supported by the Interested Parties) to the effect that the petitioner has wrongly invoked this court’s jurisdiction. If his intention is to seek the interpretation of articles 138, 139 and 140 of the Constitution, the petitioner cannot leapfrog the High Court and come directly to the Supreme Court. Conversely, if the intention of the petitioner is to challenge the validity of the fresh presidential election of October 26th 2017, then his Petition has been filed in breach of article 140(1) of the Constitution. It is not denied that the Petition herein, was filed before the declaration of the results of the October 26th election.
52.
The Supreme Court cannot determine the validity or otherwise of a presidential election, before the same is held and the results thereof declared. It is one thing for the court to pronounce itself on a constitutional or legal question, but it is another thing to determine the validity of an election. In other words, the Supreme Court cannot anticipate the validity of a presidential election, within the meaning of article 140(1) of the Constitution. As such, this court lacks jurisdiction to hear and determine the present Petition.
(ii) On Costs
53.
Having determined that the court lacks jurisdiction to entertain this Petition, we see no reason to delve into the other attendant issues. This conclusion then leaves us with the question as to what Orders we should make regarding Costs. The petitioner has urged the court not to visit him with Costs, in the event of an adverse decision to himself. His main argument is that this being a Petition in public interest, the same should not be penalized by way of Costs, as this would go against the spirit of Public Interest Litigation.
54.
The respondents and Interested Parties, on the other hand, argue that the petitioner should bear their Costs as the same was filed, not in the public interest as claimed by the petitioner, but in furtherance of his own private interests. In this regard, they submit that the petitioner participated in the 2017 general election as a candidate of NASA; a coalition led by the 2nd Interested Party, whom the petitioner actively supported.
55.
We have considered the Parties’ Submissions regarding the issue of Costs. We have times without number, stated the general principle that costs follow the event. We have at times departed from this Principle, to order that each party should bears its own Costs in exceptional circumstances. As observed in our past decisions, although election petitions are almost invariably filed by private individuals (losing candidates), they, by their very nature, bear a certain element of public interest.
56.
However, not every election petition can be classified as public interest litigation, unless it exhibits a distinct focus on furthering the Public Interest. Each case has to be determined on its own merits. In the instant case, we are not convinced that this Petition was filed for the distinct objective of furthering the Public Interest. We are not able to perceive how the petitioner, having actively participated in and supported the election agenda of the 2nd Interested Party, suddenly experienced an epiphany that propelled him into the just course of public interest litigation, in the wake of the fresh presidential election of October 26th 2017.
57.
In the circumstances, as costs follow the event, having failed in his Petition, the petitioner must bear the costs of the Petition being struck out.
",Struck out,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/68/eng@2020-02-07
Petition 40 of 2018,Dysara Investment Limited & 2 others v Woburn Estate Limited & 5 others (Petition 40 of 2018) [2020] KESC 15 (KLR) (Nairobi) (24 January 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",7 February 2020,2020.0,Nairobi,Civil,Dysara Investment Limited & 2 others v Woburn Estate Limited & 5 others,[2020] KESC 15 (KLR)               ,,"Before the Court is a Notice of Motion Application dated 27th February, 2019 and filed on 27th February, 2019, within Petition 40 of 2018. It is filed pursuant to Sections 21 and 24 of the Supreme Court Act, 2011 and Rules 3 (5) and 23 of the Supreme Court Rules, 2012. The Application is supported by the sworn affidavit of Victoria Simiyu Okata, Counsel for the Applicants.
2.
The Applicants seek leave to file a Supplementary Record of Appeal comprising of documents that were omitted from the Record of Appeal filed on 31st October, 2018. These documents are the Notice of Appeal lodged in the High Court, Memorandum of Appeal lodged in the Court of Appeal and the parties’ written submissions which they had filed and relied on in the Court of Appeal. All these are mandatory documents in a record of appeal under Rule 33 (4) and 33(7) of the Supreme Court Rules. The Applicants aver that their omission was due inadvertent omission given the hasty filing of the appeal before the lapse of the statutory 30 days provided for filing an appeal. The Applicants urge that the orders sought be granted as the Respondents will not be prejudiced by their issuance.
A. Litigation Summary
3.
The suit before the High Court, ELC No. 51 of 2014, concerned a dispute between the parties arising from a contract pertaining to the service charge payable by the Appellants. This was in regard to the leases entered into with the Respondents, in respect of some of the apartments erected on Plot No.10714 situated in Malindi also known as Woburn Residence Club. At execution of the lease contracts, the Appellants were to pay a provisional monthly rate service charge. The charge payable was subject to review upon the Respondents availing statements of accounts which the Appellants would ratify. However, contrary to that agreement it is alleged that the Respondents demanded for amounts which exceeded the provisional rate without availing the required statements of account to enable proper calculations.
4.
The Respondents filed a Preliminary Objection dated 3rd April, 2014 on even date challenging the Court’s Jurisdiction. The Preliminary Objection was based on the ground that clause 2.5 of the contract provided for the manner of solving disputes. The trial Judge (Angote, J.), however, dismissed the Preliminary Objection on the main ground that it did not raise pure points of law. The Respondents appealed to the Court of Appeal against that finding. The Court of Appeal overturned the decision finding that the Preliminary objection raised a pure point of law on jurisdiction. That court’s opinion was informed by the uncontroverted fact that the parties had agreed on how to resolve disputes under clause 2.5.
5.
That finding has triggered the Appeal before this court pursuant to which the instant Application is filed. The 1st and 2nd Respondents responded to the appeal by filing a Preliminary Objection, Submissions and their list of authorities in support of the Preliminary Objection on 19th Dec 2018. The Deputy Registrar directed the Appellants to respond to the Preliminary Objection. The Appellants however filed the instant Application on 27th February, 2019 seeking leave to file a Supplementary Record of Appeal so as to include documents left out during the filing of the record of appeal.
6.
On 7th March 2019, the Respondents in opposition to this Application filed another Preliminary Objection dated 6th March, 2019. It is a replica of the Preliminary Objection filed in opposition to the appeal. The Hon. Deputy Registrar directed parties on 25th March 2019 to file and exchange written submissions on or before 1st April, 2019 in respect of the Application. The Applicants filed their Submissions dated 26th March 2019 in opposition to the Preliminary Objection dated 6th March, 2019.","C. Analysis and Determination
13.
We have considered the parties’ pleadings and submissions concerning the Application, the issues for determination are as follows: -
(a)
Whether the court has jurisdiction to entertain the Application and the appeal.
(b)
Whether the orders sought in the Application can issue
14.
In addressing both issues seriatim, we note that the Respondents challenge this court’s jurisdiction to hear and determine not only the Application but also the appeal generally, on grounds that the appeal is not within the four corners of the court’s express jurisdiction as per the law; that an appeal from the Court of Appeal can lie before this Court either upon certification as a matter of GPI by the Court of Appeal under Article 163(4) (b), or it be filed directly if it involves matters of interpretation and Application of the Constitution under Article 163(4) (a).
15.
Since the Applicants never sought certification under the first limb, the Respondents urge the court to deem that the appeal is then one involving interpretation or Application of the Constitution. And that subject matter of the suit, being the parties’ obligations in a contract and interpretation of contract terms, they argue that these are not matters of constitutional interpretation. That there is no other avenue left to confer this court with jurisdiction. They thus urge the court to dismiss the Application and strike out the appeal with costs for lack of jurisdiction.
16.
The Applicants did not submit extensively on the issue of jurisdiction save on the single averment in their submissions that the court has jurisdiction to hear and determine the appeal.
17.
On our part, we have perused the plaint in Environment and Land Court [ELC] Case No. 51 of 2014 where we note that the issues raised were based on fraud, breach of trust and misrepresentation in a contract. Further the ruling of that court dated 8th Nov 2017 on the Preliminary Objection on the jurisdiction of the court to hear the suit in light of dispute resolution clause 2.5 trigged appeal proceedings. We have also considered Civil Appeal No. 20 of 2018 in the Court of Appeal and which is the basis of the appeal before us. We note that in all of the above, there was no mention of any Article of the Constitution.
18.
We have further perused the petition of appeal before us. The Petitioners in Para 46 state that the appeal is brought under Article 163(4)(a), as guided by the case of Peter Munya vs. Dickson Mwenda Githinji & 2 Others Petition No. 2 of 2014. That the matters before the Court of Appeal also allegedly revolved around interpretation of Articles 50 and 159 of the Constitution.
19.
This court has had the occasion to define what constitutes a Preliminary Objection. In the case of Aviation & Allied Workers Union Kenya vs. Kenya Airways Limited & 3 others [2015] eKLR, Application No. 50 of 2014, held in Para 15;
‘Thus a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.’
20.
Having considered the contents of the preliminary objection of the Respondents, we are satisfied that the challenge on the Court’s jurisdiction in the appeal amounts to an issue capable of being addressed as a preliminary point of law. This is because the jurisdiction of this court is set by the Constitution and the statute. Since the Applicants indicate that they are coming to this court under Article 163(4) (a), they have the duty to demonstrate that the issues in the appeal involve constitutional interpretation and Application and not a mere reference of constitutional provisions in the appeal, as we held in the case of Peter Oduor Ngoge vs. Francis Ole Kaparo & 5 others [2012] eKLR, Petition 2 of 2012.
21.
We have furthermore noted that the first time article of the Constitution was mentioned in this appeal is in the petition of appeal filed before this court. In that regard, we note our holding in the case of Lawrence Nduttu & 6000 Others vs. Kenya Breweries Limited & Anor – SC Petition No. 3 of 2012 [2012 eKLR] and Erad Suppliers & General Contractors Limited Versus National Cereals & Produce Board SC Petition No. 5 of 2012 where we stated that such an issue must have formed an integral part of the issues in the superior court of the first instance and should have formed part of the courts’ decisions through the hierarchy of courts. As we further held in the case of Hassan Ali Joho & Another vs. Suleiman Said Shahbal & 2 Others [2014] eKLR (The Joho case) at paragraph 37, the superior courts below must have interpreted it and made a finding so that the appeal rises through the hierarchy of courts.
22.
We have furthermore found in our past decisions that what amounts to a matter of Constitutional interpretation in instances when the alleged Constitutional issue must have been infused in the matter before the superior courts so that though not specifically raised, it forms and informs the decision of the courts below and thus took a trajectory of constitutional interpretation or Application. In Peter Gatirau Munya vs. Dickson Mwenda Kithinji & Others Supreme Court Application No. 5 of 2014, (Peter Munya Case 1) we held in para 69:
“
…Where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an applicant should demonstrate is that the Court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or Application.”
23.
Having gleaned through all the pleadings before us, we find that the Appellants’ before this court did not raise any constitutional issue either in the Environment and Land Court in the first instance neither was such an issue addressed in the findings of the Court of Appeal. We have also not seen any issue taking a constitutional trajectory in either of the two courts. It is our view therefore that the issues raised and the arguments presented turned on the terms of the contract which was the subject of the suit and on the interpretation of not any constitutional provision. In fact, there was no effort demonstrated by the applicant as to the existence of such a constitutional trajectory.
24.
In light of the findings above, observation, we hereby find that the preliminary objection has merit and is hereby upheld.
25.
In the circumstances, we make the following orders:
(a)
The Preliminary Objection is hereby allowed.
(b)
The petition of appeal dated 25th October 2018 and filed on 31st October 2018 is hereby struck out.
(c)
The Applicants shall bear the costs of the appeal.
",Allowed ,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/15/eng@2020-01-24
Petition 22 of 2017,County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Proposed Interested Party) (Petition 22 of 2017) [2020] KESC 58 (KLR) (23 January 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",23 January 2020,2020.0,Nairobi,Civil,County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission,[2020] KESC 58 (KLR)               ,,"A. Introduction
1.
The Applicant’s Notice of Motion under Certificate of Urgency dated 19th October 2018, filed on 31st October 2018, is anchored on Articles 25(c), 50(1), 127 (1), 6(e) (i) of the Constitution of Kenya; Sections 3 and 24 (1) of the Supreme Court Act, 2012 and Rules 3 and 25(1) of the Supreme Court Rules 2012.
2.
The Applicant seeks joinder in Petition No 22 of 2017, The County Assemblies Forum vs Hon. Attorney General & 2 Others in the capacity of Interested Party.
3.
The Applicant thus seeks to move the Court for orders THAT:
1.
This Honourable Court do grant leave to the Applicant to be enjoined as an interested party to these proceedings.
2.
This Honourable Court be pleased to make such order(s) and/ or directions(s) as it may deem necessary in the circumstances.
","C. Analysis
12.
The provisions of the law for enjoinment of an interested party are found in Section 23 of the Supreme Court Act, 2011 in the following terms:
(1)
Any person entitled to join as a party or liable to be joined as a party in any proceedings before the Court may, on notice to all parties, at any stage of the proceedings, apply for leave to intervene as a party.
“(2)
An application under this Rule shall contain information on—
(a)
the identity of the person interested in the proceeding;
(b)
a description of that person’s interest in the proceeding;
(c)
any prejudice that the person interested in the proceeding would suffer if the intervention were denied; and
(d)
the grounds or submissions to be advanced by the person interested in the proceeding, their relevance to the proceeding and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties”.
13.
These provisions have been previously considered by the Court and the Court has pronounced itself on its discretionary power to admit an interested party. The principles set out in paragraph 37 of Francis Karioki Muruatetu & Another v Republic & 5 others, Petition 15 as consolidated with 16 of 2013; [2016] eKLR thus demonstrate elements applicable where a party seeks to be enjoined in proceedings in that capacity. They are, that;
(i)
The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
(ii)
The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
(iii)
Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.
14.
Applying the above elements to the present Application and noting that the same is not opposed, we are satisfied that the Application is merited and the Applicant ought to be admitted as an interested party.
D. Orders
15.
Consequently, we make the following Orders:
(i)
The Application dated 19th October 2018 seeking joinder of the Parliamentary Service Commission as an Interested Party be and is hereby is allowed.
(ii)
Each Party shall bear their own respective costs.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/58/eng@2020-01-23
Reference 1 of 2018,"County Assembly of Mandera County v Governor, Mandera County & another (Reference 1 of 2018) [2020] KESC 57 (KLR) (Civ) (23 January 2020) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",23 January 2020,2020.0,Nairobi,Civil,"County Assembly of Mandera County v Governor, Mandera County & another",[2020] KESC 57 (KLR)               ,,"
1.
(Being an application by the Intended Interested Parties/Applicants seeking to be enjoined as Interested Parties in the Reference filed by the County Assembly of Mandera County for an advisory opinion under Article 163(6) of the Constitution as well as an application by the Intended Interested Parties/Applicants for the dismissal of the Reference)
2.
Upon perusing the Notice of Motion dated 2nd August 2018 and lodged on 3rd August 2018 by the Governor, Mandera County and the County Government of Mandera, pursuant to the provisions of Section 25 of the Supreme Court Rules, 2012 seeking to be enjoined in the Reference as Interested Parties and also for dismissal of the Reference herein; and
3.
Upon reading the Affidavit of Mr. Anzal Rashid Yarrow, the Legal Counsel, County Government of Mandera County, sworn on the 3rd August, 2018; and
4.
Upon perusing the grounds adduced by the Applicants in support of the orders to be enjoined as Interested Parties wherein the 1st and 2nd Applicants, the Governor and County Government of Mandera County respectively, seek to participate in the Reference herein and submit to the Court on; (i) the procedure for appointment of Members of the Executive Committee; (ii) whether there is a lacunae in law where a County Assembly fails to approve the nominees for a County Executive Committee; and (iii) whether this is a matter that can be resolved by the advice of the Attorney General before approaching this Court; and
5.
Upon considering the arguments made by the Proposed Interested Parties in which it is contended that the Applicants have a direct and legitimate interest in the present petition the 1st Proposed Interested Party being the appointing officer of the Members of County Executive Committee for Mandera, and the 2nd Proposed Interested Party being the County Government in respect to whom the appointees were being appointed; and","Upon considering that the 1st and 2nd Proposed Interested Parties, being the appointing officer of the Members of County Executive Committee and the County Government in respect of whom the appointees were being appointed respectively, will be prejudiced if they are not enjoined and that they have an identifiable stake in the matter in line with the criteria laid down in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2015] eKLR and Francis Karioki Muruatetu & another v Republic & 5 others, Supreme Court Petition No. 15 & 16 of 2015 (consolidated), [2016] eKLR; and
8.
Having considered the Application, by a unanimous decision of this Court, we find that the prayer to have the Intended Interested Parties/Applicants enjoined as interested parties is merited and is consequently allowed; and
9.
Further,noting that the Intended Interested Parties/Applicants have also prayed and submitted that the Reference herein ought to be dismissed because it is sub-judice a Marsabit High Court Constitutional Petition No.7 of 2018, Simba Hasheen Gellow vs The Honourable Governor of the County Government of Mandera and 2 others and that the Attorney General has already offered legal advice on the opinion being sought in the Reference; and
10.
Notingthe response by the County Government of Mandera that Petition No. 7 of 2018 aforesaid does not raise similar issues as are being raised in the Reference and that the Intended Interested Parties/Applicants lack capacity to seek orders of dismissal of the Reference; and
11.
[10] Having considered the said prayer, we unanimously find that a party yet to be enjoined in a matter such as the present Reference, lacks the capacity to seek any substantive orders in it and that the prayer aforesaid is premature, the Prayer for dismissal of the Reference is consequently struck out.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/57/eng@2020-01-23
Civil Application 4 of 2019,"Fugicha v Methodist Church in Kenya (Through its registered Trustees) & 3 others (Civil Application 4 of 2019) [2020] KESC 55 (KLR) (23 January 2020) (Ruling) (with dissent - JB Ojwang, SCJ)",Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",23 January 2020,2020.0,Nairobi,Civil,Fugicha v Methodist Church in Kenya (Through its registered Trustees) & 3 others,[2020] KESC 55 (KLR)               ,,"
A. Introduction
1.
This is an application under certificate of urgency dated February 7, 2019. The application is anchored on articles 163(1), 159(2)(d) and (e) of the Constitution, sections 3 and 21 (2) of the Supreme Court Act, rules 20(4), 20 (4A) and 26 of the Supreme Court Rules, rules 3(5) (a)and (8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and all other enabling provisions of Law.
2.
The applicant seeks orders that:
(a)
The application be certified urgent and be heard ex-parte in the first instance.
(b)
This court has inherent powers to reviews its judgment so as to meet the ends of justice.
(c)
This court be pleased to review or set its judgment of January 23, 2019.
(d)
This court review of its judgment delivered on January 23, 2019 to re-asses the submission on the record and determine the appeal on the basis of the 1st respondent/ applicant’s opposition to the petitioner’s High Court petition as an interested party.
(e)
This court be pleased upon review of its judgment delivered on the January 23, 2019 to clarify its said decision and its position on the High Court decision.
3.
The application is supported by the affidavit of Mohammed Fugicha.
4.
In opposing the application, the 3rd and 4th respondents have filed grounds of opposition dated March 1, 2019.
5.
Similarly, the 2nd respondent has filed grounds of opposition dated March 12, 2019 to oppose the application for review.","C. Analysis
22.
We deem it necessary to address the issue of jurisdiction in limine. In a nutshell, in addressing that, issue, the respondents contention is that this court does not have jurisdiction to review, set aside and or vacate its judgment save as provided under section 20 (4) of the Supreme Court Act which is not applicable in this matter. Further that, the present application does not meet the conditions set out in the Outa Case. The applicant on the other hand is emphatic that this court can expand the criteria set out in the Outa case for the development of the law, to clarify a mistake by judicial fallibility, and to put uncertainties into context.
23.
The legal position as regards this court’s power to review its own decision was settled in the Outa case. That case, set out circumstances in which this court can vary any of its judgments, rulings or orders, limiting them to instances where;
(i)
the judgment, ruling, or order, is obtained, by fraud or deceit;
(ii)
the judgment, ruling, or order, is a nullity, such as, when the court itself was not competent;
(iii)
the court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto;
(iv)
the judgment or ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.
24.
It is apparent that the applicant in this matter has not met the conditions precedent set out in the Outa case; has not demonstrated where or if at all the judgement he seeks to review was obtained fraudulently, deceitfully, was a nullity, was made under a mistaken belief that the parties had consented thereto, was rendered on the basis of a repealed law or as a result of a deliberately concealed statutory provision.
25.
It is also clear that the applicant intends to appeal this matter in the form of review. The process of review was not intended to give the party an opportunity to appeal, and where review it is sought, the party has to demonstrate to the satisfaction of the court, how if at all, it erred in the exercise of its discretion.
26.
We must also emphasize that this court was clear in its judgement in the present matter that, should a party seek to litigate the issues of the right to wear a hijab, they ought to institute fresh proceedings at the High Court. We specifically stated;
(59)
In the same breadth, we recognize that the issue as contained in the impugned cross petition is an important national issue, that will provide a jurisprudential moment for this court to pronounce itself upon in the future. However, to do so, it is imperative that the matter ought to reach us in the proper manner, so that when a party seeks redress from this court, they ought to have had the matter properly instituted, the issues canvassed and determined in the professionally competent chain of courts leading up to this apex court. In view of this, it is our recommendation that should any party wish to pursue this issue, they ought to consider instituting the matter formally at the High Court.”
In effect, the door is open for the applicant to specifically seek a determination of the issues he has raised in the present application. That door is however at the High Court and not in this court. For avoidance of doubt, we reiterate our position as expressed in our Judgment, that the hijab issue was never one requiring the pronouncement of the High Court, the Court of Appeal nor this court. The issue is indeed important, but it must be addressed by known procedures in our realm and not by ingenuity of counsel, litigants or court.
The Dissenting Ruling of Ojwang, SCJ
I) Introduction
27.
The instant application for review relates, in particular, to the majority Judgment in Methodist Church in Kenya v Mohamed Fugicha & 3 others, Petition No 16 of 2016, which was delivered on 23 January 2019. As I had given a substantive dissenting opinion in the said petition, it will be clear that my perception of the relevant issues, as well as my lines of conviction, are clearly set, and, on this account, do not rest on an even keel with the majority’s ruling in the instant application, by which the 1st respondent in the earlier cause is calling upon the court to review, or set aside its said majority Judgment. The applicant founds his case upon the terms of articles 159 (2) (d) and (e), and 259 (1) of the Constitution of Kenya, 2010; sections 3 and 21 (2) of the Supreme Court Act, 2011 (Act No 7 of 2011); rules 20 (4), 20 (4A) and 26 of the Supreme Court Rules; and rules 3 (5) (a) and (8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; and all other enabling provisions of the law.
(II) Applicant’s Case",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/55/eng@2020-01-23
Petition 11 of 2017,Gitonga v Republic (Petition 11 of 2017) [2020] KESC 61 (KLR) (23 January 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",23 January 2020,2020.0,Nairobi,Criminal,Gitonga v Republic,[2020] KESC 61 (KLR)               ,,"A. Introduction
1.
Before us a Petition of Appeal dated and filed on July 21, 2017, pursuant to article 163(4)(a) of the Constitution. The appellant is challenging the entire judgment and Orders of the Court of Appeal (Waki, Nambuye & Kiage, JJA) at Nyeri in Criminal Appeal No 78 of 2014 delivered on June 7, 2017.
2.
The appellant’s case is premised on five (5) grounds particularly, that the Court of Appeal erred and misdirected itself by; holding that the appellant did not demonstrate that he was willing but unable to obtain legal representation despite the fact that the appellant was never informed of his Constitutional right to legal representation; holding that the State was not under any obligation to provide free legal counsel at the time the appellant’s trial commenced despite the substantial injustice arising from the fact that the appellant was charged with an offence whose penalty is death; upholding the judgments of the High Court and the Magistrate’s Court; failing to properly evaluate the standard and burden of proof in criminal cases; and failing to recognize and apply the principle that lack of or insufficient assistance by counsel is directly injurious to the due process and the Constitutional guarantees to a fair trial in an appropriate case, such as the criminal trial of the appellant.
3.
The appellant has thus sought four (4) declaratory orders namely; that this courthas jurisdiction to entertain additional constitutional questions in relation to existing constitutional questions; that it is mandatory for an accused person in custody to be informed of his right to legal representation; that the fundamental rights of the appellant were gravely violated and that the trial courtis mandated to make an inquiry as to whether an accused person in a serious case deserves an advocate assigned by the State and at the State’s expense. Apart from the declaratory orders, the appellant has also sought two other orders; firstly, to have him discharged or acquitted and second, an order that the Court of Appeal’s judgment be reversed and set aside. The appellant finally sought any other orders that the court would deem fit to grant.
4.
The respondent opposed the Petition by filing written submissions dated September 20, 2019, the substance of which we shall shortly summarize.
B. Background
5.
The appellant, together with two others not before this court(John Bosco Njue and Irene Wawira Muthoni) were charged with the offence of robbery with violence contrary to section296 (2) of the Penal Code before the Senior Resident Magistrate’s Court at Wanguru. The trial court (BM Ochoi, SRM) connected several factual chain links from the evidence tendered and found no coexisting circumstances to weaken that chain of events pointing unerringly to the three accused as the perpetrators of the alleged crime.
6.
Dissatisfied by the decision of the trial court, the appellant, John Bosco Njue and Irene Wawira Muthoni all preferred appeals to the High Court. The High Court (Ong’udi & Githua, JJ) found no reason to overturn the decision of the trial court. The learned judges in their judgement accepted the chain link of events as found by the trial court and laid emphasis on the finding of the deceased’s stolen items in possession of the appellant, John Bosco Njue and Irene Wawira Muthoni in circumstances that they could not explain away. Consequently, the court rejected the defences put forward by the appellant and the co-accused in the same manner as the trial court had done.
7.
Further aggrieved by the decision of the High Court, the appellant, together with his co-accused lodged a second appeal before the Court of Appeal being Criminal Appeal No. 78 of 2014. Specifically, it was the appellant’s case that the learned Judges of the High Court erred in law and fact by: not making a finding that the prosecution contravened Section 46 of the Police Standing Orders during his trial; applying the doctrine of recent possession yet none of the deceased’s items were recovered from him; relying on uncorroborated evidence; relying on the evidence of PW6 who was not a trustworthy witness; not considering his defence; not taking into account the fact that he lacked legal representation in both the Magistrate’s Court and at the High Court; relying on circumstantial evidence to uphold his conviction; applying accomplice evidence to prove that he committed the alleged offence with others; and by failing to consider that none of the elements of robbery with violence under section 296(2) of the Penal Code had been satisfied. On June 7, 2017, the Court of Appeal dismissed the appeal for lack of merit hence the present appeal filed as of right under article 164(3)(a) of the Constitution.
C. Parties’ Submissions
(i) The appellant’s submissions
8.
On the court’s jurisdiction to entertain the Petition, the appellant submitted that the court has jurisdiction to entertain the appealpursuant to article 163(4)(a) as read with article 163(4)(b)(i) of the Constitution. The appellant in that regard seeks interpretation of several articles of the Constitution including articles 20(2), (3), (4) & (5), 22, 23, 25(c), 48, 49(1)(c) and 50(1)(2)(a, b, c, g, h, I, j, k l, q). The appellant submits that the issue of legal representation which led to an unfair trial under article 50 of the Constitution arose at the Court of Appeal and was subject of the Court of Appeal’s determination thus placing his appeal within this court’s jurisdiction. He further anchors his submissions on that issue in three of this court’s decision namely, Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another [2012] eKLR, Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 others [2014] eKLR and Gatirau Peter Munya v Dickson Mwenda & 2 others [2014] eKLR.
9.
Counsel for the appellant, Mr Kanjama, furthermore submitted that the appellant’s right to have legal representation under article 50(2) and elevated by article 25(c) of the Constitution is non-derogable and at no point in time was the appellant ever accorded the said right. Consequently, he added, the appellant’s right to fair trial was gravely violated. Counsel also contended that the right to fair trial cannot be limited and that the trial court was mandated to inform the appellant of his right to legal representation but did not do so. Counsel also faulted the High Court for not looking into the omission.
According to counsel the Court of Appeal also erred in finding that the appellant fully and meaningfully participated in the trial and first appeal and that his belated complaint on non-representation was baseless. On this point, counsel for the appellant cites various international legal instruments such as the Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights 1966, the African Charter on Human and People’s Rights 1969, European Convention on Human Rights and the Basic Principles on the Role of Lawyers 1990. He also relied on several cases in support of his submissions including this Court’s decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR, the US Supreme Court cases of United States v Cronic, 466 US 648 [1984], Gideon v Wainwright, 372 US 335, 372 US 344 [1963], Johnson v Zerbst US 458 [1938], and Powell v Alabama, 287 US 45 [1932] as well as the Court of Appeal’s decision in David Njoroge Macharia v Republic (Criminal Appeal No. 497 of 2007). Counsel in that regard maintained that the appellant was compelled to participate fully in the trial and first appeal proceedings because he had no choice but to defend against the charges against him and that action should not be used against him","E. Analysis
(i) Does the Appeal before this Court meet the constitutional threshold under article 163(4)(a) of the Constitution?
26.
Whereas, it is respondent’s submissions that this court lacks jurisdiction to determine whether the appellant’s right to fair trial was infringed by failure to accord him legal representation at the expense of the State or by failure to inform him of the right to legal representation; The appellant’s view is to the contrary, and argues that this appeal is properly before this Court within the ambit of article 163(4)(a) of the Constitution.
27.
The appellate jurisdiction of this court is rightly captured in article 163(4) of the Constitution of Kenya which states as follows:
“
(4)
Appeals shall lie from the Court of Appeal to the Supreme Court –
a)
As of right in any case involving the interpretation or application of this Constitution; and
b)
In any other case in which the Supreme Court, or Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)
(5)
A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.”
28.
Likewise, section 15(1) of the Supreme Court Act provides that appeals to the Supreme Court shall be heard only with the leave of the court. Section (15)(2) of the same Act on the other hand provides that Sub-Section (1) shall not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution.
29.
Apart from the foregoing constitutional and legal provisions, this Court has ceaselessly stipulated the boundaries of its jurisdiction under article 163(4)(a) of the Constitution in several decisions, which decisions are still applicable. In the Lawrence Nduttu case, a two-Judge Bench of this Court (Tunoi and Wanjala SCJJ) set the guiding principles as follows:
“
28:
The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163 (4) (a).”
30
Further, in the Hassan Joho case this court observed as follows:
“
37:
In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the Superior Courts and has progressed through the normal appellate mechanism so as to reach this court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution.... ” [emphasis added].
31.
The same principle was affirmed in this court’s decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC App No 5 of 2014; [2014] eKLR (Munya 1) where we stated thus:
“
69:
The import of the court’s statement in the Ngoge case is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the Court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.”
32.
In order to determine whether this appeal is proper before us therefore, we must confirm that the issues of Constitutional interpretation and application being raised before us have risen through the normal appellate mechanism so as to reach us. It is in that regard not disputed that the question as to whether the appellant’s right to fair trial was infringed by failure to accord him legal representation at the expense of the state or by failure to inform him of the right to legal representation was raised for the first time at the Court of Appeal. We have also interrogated the record before us and confirmed that the issue was neither raised at the Resident Magistrate’s Court nor at the High Court. None of the articles of the Constitution in the present appeal was also the subject of interpretation and application at the High Court.
33.
This court has in previous decisions emphasized the significance of respecting the hierarchy of the judicial system. For instance, in the Peter Oduor Ngoge v Francis Ole Kaparo & others [2012] eKLR we stated thus:
“
In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.”
34.
Further, in Michael Mungai v Housing Finance Co (K) Ltd & 5 other, SC Appeal/Application 9 of 2015; [2017] eKLR, we specifically stated as follows:
“
14.
The powers of this Court have to be exercised within and in accordance with a specific jurisdiction as provided for in article 163(3) of the Constitution. One cannot ask the Court to exercise its powers in a carte blanche manner. A litigant’s plea must be precise and targeted. One cannot make omnibus prayers to the Court with the expectation that the Court will be merciful to him and decipher them and grant one or either of them. Each of the jurisdictions of the Court has a definite outcome that is predictable: an appeal may lead to an affirmation or overturning of the decision being appealed against; while a reference will definitely lead to an advisory opinion being rendered or declined. Consequently, any matter that comes before this Honourable Court has to be focused and targeted. One must have a cognizable cause of action and a litigation trajectory that can be well traced within the judicial hierarchy in case of an appeal. A litigant cannot therefore, in a haphazard manner, request this Court to review or set aside the orders of the High Court directly. Such a request does not lie within the definite thread of a cause of action that has risen through the judicial hierarchy.”
35.
We thus fault the Court of Appeal for entertaining the question of legal representation as one of the grounds of appeal despite acknowledging that it was never raised in the Courts below. To allow the appellant ignore the normal hierarchy of courts would amount to abuse of the process of Court. We consequently lack jurisdiction to entertain this appeal pursuant to article 163(4)(a) of the Constitution.
36.
Concerning costs, this court has previously settled the law on award of costs, that costs follow the event, and that, a judge has the discretion in awarding costs. This was the decision in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition No 4 of 2012; [2014] eKLR. Noting that the appellant is incarcerated and has no lawful means of paying any costs awarded against him, we order that there should be no order as to costs.
37.
Consequently, the appeal fails and is dismissed.
Orders
38.
Accordingly, and in view of the foregoing reasons the final orders are:
i.
The Petition of appeal dated July 21, 2017be and is hereby dismissed.
ii.
There shall be no order as to costs.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/61/eng@2020-01-23
Petition 4 of 2018,"Kenya Plantation & Agricultural Workers’ Union v Omulama & 9 others (The Kenya Export Floriculture, Horticulture and Allied Workers’ Union (KEFHAU) Represented by its Promoters) (Petition 4 of 2018) [2020] KESC 59 (KLR) (23 January 2020) (Judgment)",Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",23 January 2020,2020.0,Nairobi,Civil,"Kenya Plantation & Agricultural Workers’ Union v Omulama & 9 others (The Kenya Export Floriculture, Horticulture and Allied Workers’ Union (KEFHAU) Represented by its Promoters)",[2020] KESC 59 (KLR)               ,,"A. Introduction
1.
The appellant moved this court via a Petition dated March 6, 2018, being an appeal against the Judgment of the court of Appeal (Githinji, Waki & Kiage JJA) in Kenya Plantation & Agricultural Workers Union v David Benedict Omulama & 9 others, Nairobi Civil Appeal No 141 of 2014 which upheld the Judgment of the Industrial court (now Employment and Labour Relations court) at Nairobi (Monicah Mbaru, J) in Cause No 7 of 2011. the court of Appeal dismissed the appellant's appeal on May 12, 2017.
2.
While certifying this appeal as one involving a matter of general public importance, in Civil Application No Sup 5 of 2017, the learned Judges of Appeal (Warsame, Ouko & Murgor JJA) on February 23, 2018 held themselves thus:
“
We have analyzed the Notice of Motion and the affidavit in support of the application and hold that the intending appellant has met his obligation to identify and concisely set out the specific elements of ""general public importance"" which he attributes to the matter for which certification is sought. Counsel for the applicant outlined clearly that the decision shall affect the labour movement, the work force and the economy if the parameters of registration of trade unions are not set right. In Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Supreme court Petition No 10 of 2013 [2014] eKLR at para 52, it is stated that an appeal to the Supreme court within the terms of article 163(4) should be founded on cogent issues of constitutional controversy. The applicant has demonstrated to our satisfaction that he intends to challenge the interpretation or application of any specific provision in the Constitution and has demonstrated how the issues that were before the High court and the court of Appeal became matters within the ambit of article 163(4) of the Constitution. The Supreme court in Peter Oduor Ngoge v Francis Ole Kaparo & 5 others (supra) stated that a petitioner must rationalize the transmutation of the issue in contention from an ordinary subject of leave to appeal, to a meritorious theme involving the interpretation or application of the Constitution, such that it becomes a matter as of right falling within the appellate jurisdiction of the Supreme court. In the instant case, the applicant has established that this court's reasoning and conclusions in Nairobi Civil Appeal No 141 of 2014 delivered by Hon. Justice Philip Waki, Onesmus Githinji and Patrick Kiage dated 12th May2017 can properly be issues of constitutional interpretation or application, for which under article 143(4)(a) of the Constitution no leave would be required. In totality, however, we are satisfied that the threshold in article 143(4)(b) has been met.” [emphasis added]
3.
The appellant has thus sought orders namely, that the Petition is allowed; the Judgment/Order of the court of Appeal be set aside, and an order be made allowing the appeal with costs including costs of the courts below.
B. Background
4.
On July 17, 2009, the 1st to 9th respondents made an application to the Registrar of Trade Unions for the establishment of a trade union namely, the Kenya Export, Floriculture, Horticulture and Allied Workers’ Union (KEFHAU). The Registrar acknowledged receipt of the application by a letter dated 25thMarch 2010 and notified the 1st to 9th respondents that the application would be placed before the National Labour Board for consideration. Later, the Registrar notified the General Secretary of the Kenya Plantation & Agricultural Workers Union (the appellant) of the pendency of the application aforesaid and inviting objections if any. Thereafter, the said Registrar sent a letter dated 30th August 2011 to the interim secretary of KEFHAU enclosing a notification of refusal of registration in the following terms:
“
The ground of refusal is as follows: -
There is already registered a trade union, sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants sought registration namely:
Kenya Plantation and Agricultural Workers Union”","D. Analysis
26.
The appellant submits that the court of Appeal erred in holding that their right of existence as a general and giant union was a violation of article 41 of the Constitution in the same manner as the 1st to 9th respondent’s Union whose application was made on February 16, 2010 before the promulgation of the Constitution. The 1st to 9th respondents on their part urge that their cause of action arose on 30th August, 2011 when the 10th respondent notified them of the refusal to register their union. We must thus answer the question in line as to whether the trial court applied article 24 of the Constitution retrospectively. In that regard, we note from the record at page 88 that the 1st to 9th respondent’s application for registration for their trade union was received by the 10th respondent on February 16, 2010. We have also taken note of the record at page 66 and 114 that the notification of refusal to register the 1st to 9th respondents’ union was made on August 30, 2011. So then, when did the 1st to 9th respondents’ cause of action against the 10th respondent arise? It is noted from the record (Vol one pages 29, 32 and 46) that the issue in dispute before the then Industrial court was “refusal of registration of the appellants by the Registrar of trade unions”. In light of the observations made from the record, we are inclined to agree with both the trial court and the learned Judges of Appeal that the cause of action was refusal of registration of the appellants by the Registrar of trade unions” and that the same arose on August 30, 2011, a year later after the promulgation of the Constitution 2010. The applicable Constitution was therefore the one of 2010 and not the former and now repealed one. We therefore find no reason to fault the finding of the courts below on this issue.
27.
This finding notwithstanding, this court has previously held that a court of law can in appropriate circumstances apply fall back to the provisions of the Constitution 2010 in determining a dispute that may have crystalized before the promulgation of the Constitution. In Samuel Kamau Macharia & 2 others v Kenya Commercial Bank & 2 others [2012] eKLR, at paragraph 62, this court specifically stated as follows:
“
At the onset, it is important to note that a Constitution is not necessarily subject to the same principles against retrospectivity as ordinary legislation. A Constitution looks forward and backward, vertically and horizontally, as it seeks to re-engineer the social order, in quest of its legitimate object of rendering political goods. In this way, a Constitution may and does embody retrospective provisions, or provisions with retrospective ingredients. However, in interpreting the Constitution to determine whether it permits retrospective application of any of its provisions, a court of law must pay due regard to the language of the Constitution. If the words used in a particular provision are forward-looking, and do not contain even a whiff of retrospectivity, the court ought not to import it into the language of the Constitution. Such caution is still more necessary if the importation of retrospectivity would have the effect of divesting an individual of their rights legitimately acquired before the commencement of the Constitution.”
28.
More recently, in Town Council of Awendo v Nelson O Onyango & 13 others; Abdul Malik Mohamed & 178 others (Interested Parties), SC Pet No 37 of 2014; [2019] eKLR, this court found at paragraph 54, that a court of law can draw insights from the Constitution 2010, for just and fair resolution of a dispute that may have arisen prior to the promulgation of the Constitution 2010. We therefore, find that even if the cause of action would have arisen prior to the 2010 Constitution, the court would have been right to draw insights from the same for the fair determination of the issue before it that is, refusal of registration of the appellants by the Registrar of trade unions.
What are the parameters for registration of a trade union?
29.
We now turn to the main issue for determination, what are the parameters for registration of a trade union? Were they complied with? Were the appellant's rights infringed in the registration of the 1st to 9th respondents’ union? Counsel for the appellant urged that the Learned Judges of Appeal failed to appreciate requirements in sections 12, 13 and 14 of the Labour Relations Act of the condition that there should not be another union in existence that is sufficiently representative of the employees’ interest in the sector. Conversely, it’s the 1st to 9th respondents’ case that their Union was established to represent its members drawn from Export, Floriculture and Allied Sectors covering specific areas set out in their Constitution, areas that are not included in the appellant's Constitution. They also submit that they complied with the provisions of the Labour Relations Act before their union could be registered.
30.
In that context article 41(2)(c) of the Constitution makes provision for the rights of workers as follows:
“
Every person has the right to form, join or participate in the activities and programmes of a trade union.”
31.
Article 36 of the Constitution on the freedom of association provides as follows:
(1)
Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
(2)
A person shall not be compelled to join an association of any kind.
(3)
Any legislation that requires registration of an association of any kind shall provide that--
(a)
registration may not be withheld or withdrawn unreasonably; and
(b)
there shall be a right to have a fair hearing before a registration is cancelled.”
32.
article 24 of the Constitution makes provision for limitation of rights and fundamental freedoms in the following terms:
“
A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including--
(1)
(a)
the nature of the right or fundamental freedom;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e)
the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
(2)
Despite clause (1), a provision in legislation limiting a right or fundamental freedom --
(a)
in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;
(b)
shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c)
shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.
(3)
The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this article have been satisfied.
(4)
The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.
(5)
Despite clause (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service--
(a)
article 31 – Privacy;
(b)
article 36 – Freedom of association;
(c)
article 37 – Assembly, demonstration, picketing and petition;
(d)
article 41 – Labour relations;
(e)
article 43 – Economic and social rights; and
(f)
article 49 – Rights of arrested persons.”
33.
On the requirements for the registration of Trade Unions, the Labour Relations Act, 2007 provides as follows:
“
12.(1)
No person shall recruit members for the purpose of establishing a trade union or employers’ organization unless that person has obtained a certificate from the Registrar issued under this section. …
13.
A trade union or employers’ organization shall apply to the Registrar for registration within six months of receiving a certificate issued under section 12.”
14.
(1)
A trade union may apply for registration if—
(a)
the trade union has applied for registration in accordance with this Act;
(b)
the trade union has adopted a constitution that complies with the requirements of this Act, including the requirements set out in the First Schedule;
(c)
the trade union has an office and postal address within Kenya;
(d)
no other trade union already registered is—
(i)
in the case of a trade union of employers or of employees, sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration; or
(ii)
in the case of an association of trade unions, sufficiently representative of the whole or a substantial proportion of the trade unions eligible for membership thereof:
Provided that the Registrar shall, by notice in the Gazette and in one national daily newspaper with wide circulation, notify any registered trade union, federation of trade unions or employers’ organizations which appear to him to represent the same interest as the applicants of the receipt of such application and shall invite the registered trade union federation of trade unions or employers’ organization concerned to submit in writing, within a period to be specified in the notice, any objections to the registration;",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/59/eng@2020-01-23
Civil Application 23 of 2019,Kenya Revenue Authority v Krish Commodities Limited (Civil Application 23 of 2019) [2020] KESC 60 (KLR) (Civ) (23 January 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",23 January 2020,2020.0,Nairobi,Civil,Kenya Revenue Authority v Krish Commodities Limited,[2020] KESC 60 (KLR)               ,,"A. Introduction
(1)
This is an application by way of a Notice of Motion dated 2nd August, 2019 brought under Articles 159 and 163(4)(a) of the Constitution of Kenya, Section 21(2) and 24 of the Supreme Court Act as well as, Rules 23 and 53 of the Supreme Court Rules 2012. The Applicant seeks the following specific orders:
1.
That the Honourable Court be pleased to grant leave to extend the time limited for filing of the Petition of Appeal.
2.
That the costs of and incidental to this application do abide the result of the said Appeal.
(2)
The Application is premised on several grounds and the supporting Affidavit of Maureen Agutu sworn on 2nd August, 2019.
(3)
The Application is opposed by the Respondent through a Replying Affidavit sworn by Mital Shah, the Director of the Respondent, on 22nd August, 2019.
B. Background
Proceedings at the High Court
(4)
At the High Court, the Respondent filed Misc. Appl. No. 59 of 2013 to challenge the Applicant’s decision, dated 2nd October, 2009, to detain and withhold the Respondent’s ten (10) containers of goods on account of an upaid sum being duty owed to the Applicant of Kshs. 26,215,578/=. The Respondent claimed in that regard that its constitutional right to fair administrative action as guaranteed under Article 47 of the Constitution was infringed by the Applicant. That the Applicant’s conduct was not only ultra vires, but also an abuse of powers occasioning the Applicant irreparable loss and damage. Finally, the Respondent claimed that the Applicant, in detaining its goods acted unfairly, unlawfully and maliciously.
The Applicant on its part denied any wrong doing and maintained that it acted within the provisions of the law, and that the orders of certiorari and prohibition sought by the Respondent the as ex parte Applicant, did not lie.
(5)
The High Court in its Judgment listed one issue for determination namely, whether the demand by the Respondent for the sum of Kshs. 26,215,528/= or any other amounts on account of duty allegedly uncollected due to the application of a lower duty rate was a wrongful and unlawful action, and whether therefore orders of certiorari and prohibition could issue, to quash the demand notice, and prohibit the Respondent from making any demand on account of alleged underpayment of duty/taxes in respect of the various importation of consignments of rice made by the Applicant which were cleared by the Respondent under Entry Nos. 2008 MSA 1524652, 2008 MSA 1624728, 2009 MSA 1583016, 2009 MSA 1050489, 2009 MSA 1717824 and 2009 MSA 1718645.
(6)
On 6th December, 2016, Emukule J held that the Applicant was well within its mandate to inspect and audit the import documents in terms of Section 235 and 236 of the East African Community Customs Management Act (EACCMA), and demand short-levied tax in terms of Section 135 of EACCMA 2004. He consequently exercised his discretion and proceeded to dismiss the Respondent’s application for Judicial Review orders.
","D. Analysis
(22)
Rule 53 of the Supreme Court Rules, 2012 grants this Court discretion to extend time. It provides that:
“
The Court may extend the time limited by these Rules, or by any other decision of the Court.”
(23)
It is the Applicant’s submission in the above context that as soon as the Court of Appeal delivered its Judgment on 27th June, 2018, it filed a Notice of Appeal on 5th July, 2018. Nonetheless, it could not file its appeal within time because it was awaiting the “typed proceedings and decree of the Court of Appeal. During the period of awaiting “typed proceedings and decree”, the time for filing an appeal lapsed. It also urges that the intended appeal is for the benefit of the general public and so the Application should be allowed. The Respondent on the other hand urges that the reasons advanced by the Applicant were not sufficient and, that the Notice of Appeal stood withdrawn upon the lapse of stipulated timelines for filing an appeal, that the Applicant has in any event not pursued extraction of the decree from the Court of Appeal; has delayed in filing submissions in the instant Application and inordinately delaying to file the current application. It also urged that the Applicant has not sought certification that this is a matter of general public interest.
(24)
In addressing the Application, we note that Rule 33(1) of the Supreme Court Rules provides as follows:
“
An appeal to the Court shall be instituted by lodging in the Registry within thirty days of the date of filing of the notice of appeal-
a)
a petition of appeal;
b)
a record of appeal; and
c)
the prescribed fee”.
(25)
Rule 33(4) of the Supreme Court Rules also thus provides:
“
For purposes of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub-rule (3) and shall further contain the following documents relating to the appeal in the first appellate court—
a.
the certificate, if any, certifying that the matter is of general public importance;
b.
the memorandum of appeal;
c.
the record of proceedings; and
d.
the certified decree or order” [emphasis supplied].
(26)
Further, Rule 33(6) of the Supreme Court Rules, provides as follows:
“
Where a document referred to in sub-rule (3) and (4) is omitted from the record of appeal, the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record of appeal.”
(27)
With respect to extension of time, this Court has already set the guiding principles in Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others [SC. Application no. 16 of 2014; [2014] Eklr as follows:
“
… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.
“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:
1.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;
2.
a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3.
whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;
4.
where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;
5.
whether there will be any prejudice suffered by the respondents, if extension is granted;
6.
whether the application has been brought without undue delay; and
7.
whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied]
(28)
Further, in the case of County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR, this Court emphasized the need for an applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court. On the issue of delay occasioned by typed proceedings, we stated as follows:
“
(24)
a ground of delay of getting typed proceedings is not a prima facie panacea for a case of delay whenever it is pleaded. Each case has to be determined on its own merit and all relevant circumstances considered”
(29)
In the present case, we note that the typed proceedings were certified on 2nd of July, 2019 though no certificate of delay from the Deputy Registrar of the Court of Appeal has been attached to enable us ascertain the delay. We also note that other than the request for the typed proceedings made by the Applicant on 5th July, 2018, there is no other follow up from the Applicant on the same.
[30]
Assuming that a certificate of delay was attached herein to confirm that the typed proceedings were issued on the same date they were certified that is, 2nd July, 2019, was the present application filed on time? Was that the only remedy available to the Applicant? We have taken note of the fact that the present application was filed a month later, that is, 2nd August, 2019. The Applicant has not provided a satisfactory explanation for the one-month delay after receipt of the typed proceedings.
(31)
Further, we note that the Applicant did not pursue the procedure provided for under Rule 33(6) of the Supreme Court Rules which allows for filling of the requisite documents late, but without leave of Court. Having filed the Notice of Appeal on 5th July, 2018, the last day for filing the Appeal was 19th July, 2018. Thereafter, the Applicant had a further fifteen days (until 3rd of August, 2018) to file a supplementary record without leave. This therefore means that the Applicant ought to have filed the Appeal and the record with the documents that were available as a sign of diligence, then later seek leave of this Court to file the supplementary record out of time. Consequently, it is our finding that the Applicant has not satisfactorily explained the inordinate delay of one year to warrant exercise of this Court’s discretion to enlarge time.
(32)
We have also interrogated the Court of Appeal’s decision which was to the effect that EACCMA was applicable in Kenya, and that the learned Judge of the High Court had failed to correctly identify the issues for determination; that the Respondent was not treated fairly and reasonably and that the Applicant’s conduct to detain the Respondent’s containers was an abuse of the Applicant’s powers. We also do not see how, even if certification had been obtained (and it has not), any of these findings affect the interest of the general public to enable us exercise our discretion to extend time to file the appeal. Neither do these issues require an interpretation or application of the Constitution.
(33)
The upshot of the above is that we are inclined to disallow the application for extension of time with costs to the Respondent.
Orders
(34)
Consequently, we make the following Orders
i.
The Notice of Motion dated 2nd August, 2019 be and is hereby disallowed.
ii.
The Applicant shall bear the costs of the Respondent.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/60/eng@2020-01-23
Civil Application 17 of 2019,Attorney General v Zinj Limited (Civil Application 17 of 2019) [2020] KESC 63 (KLR) (Civ) (15 January 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",15 January 2020,2020.0,Nairobi,Civil,Attorney General v Zinj Limited,[2020] KESC 63 (KLR)               ,,"1.
Upon perusing the Notice of Motion dated 28th May, 2019 and filed on the same day seeking orders of enlargement of time to serve a notice and record of appeal against the Judgment and Orders of the Court of Appeal delivered on 20th March 2019 in Civil Appeal no 56 of 2018 and brought under the provisions of Articles 159(2)(d) and 163(4) of the Constitution, Section 3 of the Supreme Court Act, Rules 26 and 53 of the Supreme Court Rules, 2012 and;
2.
Upon reading the Applicant’s Supporting Affidavit sworn by Ruth Chepkemboi Lutta on 24th April 2019 and;
3.
Upon considering the written submissions filed by the Applicant on 21st June, 2018 wherein it is contended that the delay in serving the notice and record of Appeal was as a result of apparent confusion between the Attorney General’s Nairobi and Malindi offices as to where the requisite service was to be effected and;
4.
Noting the Applicant’s further submission that, while the time for effecting service under Rule 32(1) of this Court’s Rules lapsed on 10th April 2019, service of the notice and record of appeal was effected on 11th April 2019 and therefore the delay was only of one day and;
5.
Further noting the submission that no prejudice would be caused to the Respondent if time is enlarged as prayed and that the intended appeal has high chances of success as demonstrated by the contents of the Memorandum of Appeal and;
6.
Noting from the record that the Application is not directly responded to but instead, the Respondent, by a Notice of Motion application dated 6th September 2019 and premised on Rule 37(1) of this Court’s Rules, seeks orders of dismissal of the Applicant’s Motion dated 28th May 2019 as well as a striking out of the Notice of Appeal dated 1st April 2019 on the grounds that:
a)
The Appellant herein served the Applicant/Respondent with a Notice of Appeal dated 1st April, 2019 and lodged on 3rd April, 2019.
b)
The said Notice of Appeal was lodged out of time as per Supreme Court Rule 31.
c)
The Appellant’s Application dated 24th April, 2019 came up for mention on 17th June, 2019 before the Deputy Registrar of this Court, when parties agreed to enter into a consent in favour of the Appellant’s Application and that the same consent be lodged in Court.
d)
On 18th June, 2019 the Applicant/Respondent through its Advocates forwarded a consent in triplicate to the Appellant’s Advocate for filing.
e)
Since then the Appellant has failed and/or neglected to execute the said consent and lodge it in Court for adoption.
f)
The Appellant has failed and/or refused to file the requisite record of appeal subsequent upon the Notice of Appeal aforesaid, contrary to law; and no reasonable explanation has been offered thereto.
g)
The Notice of Appeal dated 1st April, 2019 and lodged on 3rd April, 2019 is frivolous, vexatious and an abuse of the Court process, in that; the said Notice of Appeal was solely intended to stay the execution of the Judgment at the Court of Appeal delivered on 20th day of March, 2019 by hon Justice A. Visram, W. Karanja and M. K. Koome at Malindi with no intention to pursue an appeal, at all.
h)
On the whole, the Notice of Appeal herein is highly prejudicial to the Applicant/Respondent, it is unjust and unfair; and there are sufficient reasons warranting the orders sought hereby.
i)
The Application has been brought without any unreasonable delay.
7.
Further noting that the above grounds are repeated in the Supporting Affidavit sworn on 6th September 2019 by one, Mohamed Madhubuti, a Director of the Respondent company and extrapolated in the submissions filed on 26th September 2019 and;
8.
Upon reading the Applicant’s Replying Affidavit sworn on 23rd September 2019 by Rita Chepkemboi Lutta and Submissions filed on 11th October 2019 in which it was deponed that the Applicant, at all times, acted in good faith; has explained the delay in not serving the notice and record of appeal on time; has a genuine and credible appeal predicated on Article 40 of the Constitution and that therefore his application ought to be allowed and;","Having considered the two related Applications before us, we now opine as follows:
a)
The Application dated 28th May 2019 satisfies the principles set out in the cases of Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 7 Others Application no 16 of 2014 and Hassan Nyanje Charo v Khatib Mwashetani & 3 Others SC Application no 15 of 2014; on extension of time by this Court as well as;
b)
The principles in Board of Governors, Moi High School, Kabarak & Another v Malcom Bell SC Petition no 6 and 7 of 2013 as affirmed in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others Application no 5 of 2014 and Wycliffe Oparanya Ambetsa v the Director of Public Prosecutions SC Petition no 14 of 2016 as the reasons for the one day delay in serving the notice and record of appeal have been satisfactorily explained and the delay is not inordinate in any event.
c)
Once the Application dated 28th May 2019 has been granted, it means that we see no merit in the Application dated 6th September 2019 because non-execution of a Consent Order by one party does not of itself connote bad faith – a party can change its mind prior to execution of any Consent Order. Furthermore, no prejudice has been caused to the Respondent by the non-execution of the Consent Order on an application it has never responded to. In effect, its own application is misconceived on all fronts.
10.
In the circumstances, we now order as follows:
a)
The Application dated 28th May 2019 is hereby allowed and time to serve the Applicant’s Notice and Record of Appeal is hereby enlarged for a further seven (7) days from the date of this Ruling.
b)
The Application dated 6th September 2019 is hereby dismissed.
c)
Each party shall bear its costs of both Applications.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/63/eng@2020-01-15
Petition 7 of 2019,Asanyo & 3 others v Attorney-General (Petition 7 of 2019) [2020] KESC 62 (KLR) (10 January 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",10 January 2020,2020.0,Nairobi,Civil,Asanyo & 3 others v Attorney-General,[2020] KESC 62 (KLR)               ,,"A. Introduction
1.
The petition of appeal before the court is filed under article 163(4)(a) and (7) of the Constitution, contesting the decision of the Court of Appeal dated January 22, 2019. Principally, the petitioners contest the Court of Appeal’s directions, which required them to file a formal application seeking compliance with a Supreme Court order, with the respondents being given a right of reply. They urge that the Court of Appeal’s directions infringe on the doctrine of functus officio, in that they amount to a re-opening of litigation on a matter that has been heard with finality. The petitioners contend, further, that the Court of Appeal’s directions contravene article 163(7) of the Constitution, which requires all other courts to comply with the decisions of the Supreme Court.
B. Background
2.
This is not the first time the matter is being brought before this court. The petitioners herein had previously filed in this court Petition No 21 of 2015 - challenging two decisions of the Court of Appeal, both arising from Civil Appeal No 260 of 2014. On the one hand, the petitioners faulted the appellate court for declining to adopt a consent order dated September 18, 2015. On the other hand, they sought to set aside the judgment of that court, which had disposed of the substantive matter in disregard of the consent order. Upon considering the matter, on November 20, 2018, this court held that the Court of Appeal should have adopted the consent of the parties. The court also declared the judgement of the Court of Appeal to be a nullity, and void ab initio, since one of the judges failed to deliver his reasoning, yet such non-delivery did not fall within the regular legal exceptions.
3.
Ultimately, the court gave the following Order:
“
(1)
The Petition of Appeal dated December 21, 2015 is hereby allowed in the following specific terms:
(a)
A declaration is hereby made that the Court of Appeal judgment dated November 13, 2015 in Nairobi Civil Appeal No 260 of 2014 is null and void.
(b)
The ruling of the Court of Appeal dated November 12, 2015in Nairobi Civil Appeal No 260 of 2014 is hereby set aside.
(c)
An order do hereby issue that this matter be remitted back to the Court of Appeal for the adoption of the consent filed by parties on September 18, 2015, on a priority basis.
(2)
Each party shall bear its own costs”.
4.
Pursuant to the foregoing order, on November 21, 2018, the petitioners wrote a letter to the President of the Court of Appeal, requesting him to constitute a three-Judge Bench, for purposes of adoption of the consent Order filed by the parties before that Court on September 18, 2015.
5.
The matter was first mentioned before the Court of Appeal on January 14, 2019. On that occasion, the Attorney-General opposed the adoption of the consent. He urged that the consent was recorded during the term of the retired Attorney-General, a position that has since changed. After hearing the parties, the Presiding Judge adjourned the matter, so that he could familiarize himself with the case.
6.
During the second mention of January 22, 2019, the Bench (Waki, Musinga & Gatembu JJA) rendered a rulingin the following terms:
“
After hearing brief submissions…it dawned on us that the matter was contentious and may not simply be a matter for a ‘mention’. We made an orderfor further mention today, with a view to giving further directions after the perusal of the record. We have done so, and even found a copy of the Judgment of Kiage, JA dated November 13, 2015which the Supreme Court found was non-existent. In our view, this compounds the matter. Considering the further contentions raised earlier by counsel on both sides, we think it is desirable that the respondents in this appeal (the petitioners herein) approach the Court with a formal application, with a right of reply by the Attorney-General. In view of those perceived complications, we also think the matter should be placed before the same Bench that dealt with the appeal, now that they are all based in Nairobi, that is to say, Ouko (P), Kiage & Murgor JJ A.”
7.
It is this Ruling that triggered the filing of the present appeal. The appeal is anchored on the following grounds:
(i)
that the learned Judges of Appeal infringed the doctrine of functus officio, when they purported to reopen the matter for a hearing of the adoption-of-consent, yet their Judgment had been declared null and void by the Supreme Court, and finality had been attained;
(ii)
that the respondent has changed his position as regards the said consent;
(iii)
that the learned Judges of Appeal, in failing to allow the parties to adopt the consent as directed by this honourable court, violated the principle laid down under article 163(7) of the Constitution, which provides that all courts are bound by the decisions of the Supreme Court; and
(iv)
that this court has the requisite jurisdiction to hear and determine this matter under article 163(4)(a) of the Constitution.
8.
The petitioners seek the following reliefs:
(a)
The entire orderof the Court of Appeal (Waki, Musinga & Gatembu JJA) dated January 22, 2019, in Civil Appeal No 260 of 2014, be set aside.
(b)
this court be pleased to adopt the consent letter dated September 11, 2015, and filed on September 18, 2015.
(c)
Any other orderas this court may deem fit, in the circumstances.
","E. Analysis
(a) The Question of Jurisdiction
16.
It is the petitioners’ case that this court is clothed with the requisite jurisdiction to hear and determine the matter at hand. In that behalf, learned counsel rely on the case of Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 others, Supreme Court Petition No 10 of 2013 [2014] eKLR, and Erad Suppliers & General Contractors Limited v. National Cereals & Produce Board, Supreme Court Petition No 5 of 2012. It is contended that the present matter raises weighty issues of interpretation and application of the Constitution: specifically, whether or not the appellate court can reject a determination by the Supreme Court, in view of article 163(7), which ordains final pronouncement by the apex Court.
17.
The respondent, taking a divergent view, argues that this appeal is only concerned with directions given during a mention before the appellate court, which courtis yet to take a decision regarding the adoption of the consent. It is contended that the petitioners’ rights have not been infringed, and that it is, therefore, premature to invoke the jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution.
18.
The operative provision of the Constitution is article 163(4)(a), which provides that an appeal lies from the Court of Appeal to the Supreme Court
“
as of right in any case involving the interpretation or application of the Constitution”.
this court has already determined the import, scope, and limits of its appellate jurisdiction under article 163(4)(a) of the Constitution in a number of cases: Samuel Kamau Macharia and another v Kenya Commercial Bank and 2 others [2012] eKLR; Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & Another [2012] eKLR; Peter Oduor Ngoge v. Francis Ole Kaparo & 5 others [2012] eKLR; Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others [2014] eKLR; Evans Odhiambo Kidero & 4 others v Ferdinand Ndung’u Waititu & 4 others [2014] eKLR; Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2013] eKLR — among others.
19.
As we have observed in such decisions, the jurisdiction of this court is limited, and flows from the terms of the Constitution and the relevant legislation. Occasionally, however, there will arise situations in which the jurisdiction of the court is not quite so sharply defined, in which case it devolves to the court to ascertain, on a case-by-case basis, whether jurisdiction may properly be assumed.
20.
It is to be noted that the present appeal does not stem from a subject-matter that was before the High Court; but it is the petitioner’s case that the manner in which the appellate courthas conducted itself not only goes against this court’s determination, and against its guiding principle under the law (specifically, article 163 (7) of the Constitution), but also infringes the well-known doctrine of functus officio.
21.
We recall that when the matter first came up before this court, we did address ourselves to the question of jurisdiction: and we duly noted that the appeal, in its essence, did not flow from the subject-matter that had featured before the trial court. The grievance of the petitioners had its origin in the appellate court; and it was our perception, in such a context, that the Supreme Court would have to adopt a pragmatic approach in relation to the issue of jurisdiction.
22.
We recall our decision in the Joho case where we did emphasize that each case was to be evaluated on its own facts; and we observed that several factors, in that instance, merited consideration before we could assume jurisdiction under article 163(4)(a) of the Constitution. We thus remarked (at para. 37):
“
In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the superior courts, and has progressed through the normal appellate mechanism so as to reach this court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution. Indeed, ordinarily, in our view, a question regarding the interpretation or application of the Constitution may arise from a multiplicity of factors and interrelationships in the various facets of the law. Consequently, the Constitution should be interpreted broadly and liberally, so as to capture the principles and values embodied in it.”
23.
The petitioner herein raises the question as to the Court of Appeal being bound by the decision of the Supreme Court, so that the action taken by that court would amount to reopening and rehearing the matter. article 163(7) of the Constitution establishes the principle upon which rests the authority of judicial decisions as precedent in subsequent litigation, guiding judges who are bound to follow the same. Courts and tribunals exercising judicial authority are duty-bound to follow this principle. In Geoffrey M Asanyo & 3 others v Attorney-General, Sup Ct Pet No 21 of 2015 [2018] eKLR, we thus stated (at para. 61):
“
It thus emerges that a concise reading of the judicial principles in article 159(2) of the Constitution would show that they are non-derogable, and have to be adhered to by all courts and tribunals exercising judicial power/authority. Where there is, therefore, a prima facie case of derogation, it behoves this court to intervene, so as to safeguard the Constitution, within its jurisdiction under article 163(4)(a). This was well stated in the Joho case [paragraphs 51 & 52] where the Court expressed itself thus:
In defending the Constitution and the aspirations of the Kenyan people, this court must always be forward-looking, bearing in mind the consequences of legal uncertainty upon the enforcement of any provision of the Constitution. This aspect of defending the Constitution is replicated under article 163(4)(a), which allows appeals from the Court of Appeal to the Supreme Court as of right, in any case involving the interpretation or application of the Constitution. Such is the approach that this court in hearing this appeal must seek to apply.
Applying a principled reading of the Constitution, this court responds to the demands of justice by adjudicating upon issues that tend to bring the interpretation or application of the Constitution into question. However, it is to be affirmed that any appeal admissible within the terms of article 163(4)(a) is one founded upon cogent issues of constitutional controversy. The determination that a particular matter bears an issue or issues of constitutional controversy properly falls to the discretion of this court, in furtherance of the objects laid out under section3 of the Supreme Court Act, 2011 (Act No 7 of 2011)’” [emphasis supplied].
24.
In that matter, we found that in spite of the fact that the issue before the court had not been argued in the Court of Appeal, it devolved to this court’s inherent jurisdiction to set right any jurisdictional wrongs committed by other superior courts. We thus observed (para. 62 – 63):
“
In that context, the appellants submitted that despite filing a consent which would have settled the matter in line with article 159(2), on the constitutional principle of promotion of alternative forms of dispute resolution, the Court of Appeal disregarded it. We have no doubt that, whereas the issue before us may not have been articulated at the Court of Appeal, the inherent jurisdiction of this court to right jurisdictional wrongs committed by the Superior Courts in executing their constitutional mandates, would necessitate that this court should assume jurisdiction and interrogate those alleged wrongs. In stating so, we reiterate our holding in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others, Petition No 6 of 2014; [2017] eKLR:
“
The [Supreme] Court is clothed with inherent powers which it may invoke, if circumstances so demand, to do justice. The Constitution from which this court, and indeed all courtsin the land, derive their legitimacy decrees that we must do justice to all.""
We further reiterate that this court should only depart from the principle that issues of constitutional interpretation must rise through the Superior Courts to this court, in the clearest of cases, and the exception to that principle should be carefully considered by the Court in the manner we have expressed herein....”
25.
We see no reason to depart from this reasoning, and are in agreement with the petitioners that the dispute herein would ordinarily raise questions as to the application and interpretation of the Constitution, warranting entertainment by this court.
(b) Court of Appeal’s Order of 22 January 2019: Does it offend article 163(7) of the Constitution?
26.
article 163 (7) of the Constitution provides that
“
All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.”
The nature of that provision is absolute. this court expounded this principle in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, as follows (para. 196):
“
article 163 (7) of the Constitution is the embodiment of the time-hallowed common law doctrine of stare decisis. It holds that the precedents set by this court are binding on all other courts in the land. The application, utility and purpose of this constitutional imperative are matters already considered in several decisions of this court: Jasbir Singh Rai v Tarlochan Singh Rai & others, and quite recently, in George Mike Wanjohi v Steven Kariuki & others Petition No 2A of 2014.
In addition to the benchmark decisions to which this court adverted in Wanjohi v Kariuki (supra), regarding the importance of the doctrine of stare decisis, we would echo the dictum in Housen v Nikoaisen (2002) 2 SCR:
“
It is fundamental to the administration of justice that the authority of decisions be scrupulously respected by all courts upon which they are binding. Without this uniform and consistent adherence, the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it undermined. Nothing is more important than that the law as pronounced … should be accepted and applied as our tradition requires; and even at the risk of that fallibility to which all Judges are liable, we must maintain the complete integrity of relationships between the courts’.”
27.
In Kidero & 5 others v. Waititu and others, Sup Ct Petition No 18 of 2014 (Consolidated with Petition No 20 of 2014), Njoki Ndungu, SCJ, in her concurring opinion, made the following pertinent remarks (para 236):
“
The principle of stare decisis in Kenya unlike other jurisdictions is a constitutional requirement aimed at enhancing certainty and predictability in the legal system. The articles of establishment and jurisdiction reveal the Court’s vital essence and the decisions of this court protect settled anticipations by ensuring that the Constitution is upheld and enforced, and that the aspirations of the Kenyan people embodied in a system of constitutional governance are legitimized. The constitutional contours of article 163(7) oblige this court to settle complex issues of constitutional and legal controversy, and to give jurisprudential guidance to the lower Courts. In the exercise of our mandate, we determine the constitutional legality of statutes and other political acts to produce judicially-settled principles that consolidate the rule of law and the operation of government, and the political disposition, particularly in the settlement of electoral disputes. As a Court entrusted with the final onus of settling constitutional controversies, one of our principal duties is the enforcement of constitutional norms.”",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/62/eng@2020-01-10
Petition 12 of 2019,Gwer & 5 others v Kenya Medical Research Institute & 3 others (Petition 12 of 2019) [2020] KESC 66 (KLR) (Civ) (10 January 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",10 January 2020,2020.0,Nairobi,Civil,Gwer & 5 others v Kenya Medical Research Institute & 3 others,[2020] KESC 66 (KLR)               ,,"A. Introduction
1.
This is an appeal from the Judgment of the Court of Appeal, dated 9 November 2018, by which the Judgment and Decree of the Employment and Labour Relations Court dated 18 July 2014 had been set aside. The trial Court had found that the petitioners had suffered discrimination in their employment, at the hands of the 1st respondent, and had awarded each petitioner 5 million Shillings. The petition is dated 19 March 2019, and is premised on article 163(4)(a) of the Constitution.
B. Background
2.
The petitioners had been employees of the 1st respondent under various contracts renewed and extended from time to time, over a period of several years. They had also been attached to the KEMRI-Wellcome Trust Research Programme, hosted by 1st respondent, as clinical researchers, and were pursuing post-graduate studies leading to the award of the degree of Doctor of Philosophy, in their fields of research. The said programme belonged to Oxford University in England, and was operated through the Nuffield Department of Medicine, as one of its global health centres, founded by the Wellcome Trust.
3.
The 2nd and 3rd respondents have been taking a passive posture, and have not participated in this appeal. The 4th respondent was enjoined as an interested party, in its capacity as a trade union, during the trial proceedings, and it has consistently supported the petitioners’ case.
4.
Before the trial Court, the petitioners alleged contravention of articles 3, 10, 27, 28, 40, 41, 73(1)(a), and 156 of the Constitution by their employer, Kenya Medical Research Institute (KEMRI). They contended, inter alia, that their contracts under the programme, which was later subsumed under KEMRI (1st respondent), allowed discrimination against them, and treated them unequally, on account of their race, in various respects, including in the award of Wellcome Trust Research grants, which were skewed in favour of European Economic Area residents and “white expatriates”, at the expense of “equally or more qualified local blacks”; that there was prejudice and condescension towards local African workers, as well as lack of commitment to racial equality; that there was a violation of their right to fair labour practices, contrary to the terms of article 41 (1) of the Constitution ¾ in particular by way of their extremely short multi-contracts; that there was a violation of rules of natural justice, through unfair dismissal without a hearing and without reasons; that there was conflict in the setting of contracting authority, with contracts from both KEMRI and the Programme, leading to an unclear chain of command; that there were differential gratuity and staff guidelines between the two entities, and a curtailing of the doctors’ right to join a trade union of their choice; that there was an unfavourable working environment, leading to or involving career stagnation for doctors; that there was interference with their training opportunities, and with their access to clinical funds; that they were victimised through suspension, for raising these grievances; that they were subjected to improper, indefinite leave, and were victimised by violation of article 40 of the Constitution, regarding their right to intellectual property; and that they were subjected to loss of dignity, in violation of articles 28, 29 and 30 of the Constitution.
5.
The Employment and Labour Relations Court (Nduma, J), in a Judgment delivered on 18 July 2014, allowed the petition, holding as follows:
(a)
That, the 1st respondent’s conduct amounts to discrimination against the petitioners, under article 27 (4) of the Constitution.
(b)
That the 1st respondent’s conduct, acts and/or omissions are unlawful, illegal and/or unfair, and the same violate articles 27 (1), 28, 29(d) & (f), 35(1)(b), 40(1) and 41(1) & (2) of the Constitution.
(c)
That each of the petitioners is entitled to compensation for the said violations under article 23 of the Constitution, in the sum of Kes 5 million within thirty (30) days of the Judgment.
(d)
That the petitioners are entitled to access all the outcomes of their scientific research, and to the credit and benefit attached to the said outcomes, under articles 35 and 40 of the Constitution.
(e)
That each of the petitioners is entitled to a certificate of service, acknowledging the service and scientific outcomes attributed to their research and work within 30 days from the date of the Judgment.
(f)
The 1st respondent to pay interest at Court rates on item (c) above, as from the date of this Judgment, in full.
(g)
The 1st respondent to pay costs of the petition.
6.
Aggrieved by the trial Court’s Judgment, the 1st respondent appealed to the Court of Appeal, which allowed the appeal in a Judgment dated 8 February 2019, and set aside the Judgment and Decree, in the following terms:
(a)
The trial Judge misdirected himself in certain factual or legal matters; considered matters he ought not to have considered; failed to consider matters he ought to have considered and, therefore, arrived at an erroneous decision; and he was clearly wrong in the exercise of discretion.
(b)
The trial Court should not have decided the case on the basis of affidavit evidence, as more light and more accurate picture would have been attained, had it proceeded by way of viva voce evidence.
(c)
The replying affidavit of Margaret Rigiro, with its annexures, which was 210-page, substantive, detailed response to the petitioners’ case, is not referred to or mentioned in the Judgment; and similarly overlooked was her “Further Supplementary Affidavit”, sworn on 30 October 2012, indicating that KEMRI paid the doctors all contractually-agreed remuneration, including that for periods when they did not work.
(d)
The omission (stated above) occasioned a patent injustice, and was the mark of an unfair trial.
(e)
the trial Court was wrong in finding that the 1st respondent violated article 35(1)(b) of the Constitution, as the same was not pleaded by the petitioners.
(f)
Had the Judge evaluated the replying affidavit of Magaret Rigiro, he would have found that KEMRI did not directly employ foreign researchers, and those visiting retained their career structures and terms of employment from their home institutes and universities, over which KEMRI had no control; the programme had trained more than a score of senior legal researchers; KEMRI had in place an extremely well-funded remuneration structure that was competitive, and superior to that which the doctors’ peers were paid, in the public sector or elsewhere, and any differential with what the expatriates were paid was on the basis of their different contracts with third parties, to which KEMRI was not privy; KEMRI offered benefits to doctors not expressly stipulated in their contracts, but which were similar to those it offered to all employees of similar positions, at great cost to itself.
(g)
The doctors did not discharge their burden of proving that any differentials in pay were unreasonable, unaccountable, or discriminatory.
(h)
It is not the case that any differential treatment is, ipso facto, discriminatory; for a differentiation of treatment to be unConstitutional and impermissible, it has to be based on any of the prohibited grounds under article 27 of the Constitution.
(i)
The trial Judge failed to pay heed to the provisions of section 32 (1) of the Industrial Property Act, which provides that the right to a patent for an invention in the course of execution of an employment contract, shall belong to the employer. The Judge was under duty to inquire if there was a basis for departing from this general rule.
(j)
There was no basis for the award of damages made by the trial Court.","D. Analysis And Determination
39.
We have attentively considered all submissions from the parties, as well as their depositions and lists of authorities. Due credit goes to learned counsel, who have generously supplied the Court with informative records and works on novel aspects of the intriguing subject of “indirect discrimination”.
40.
In our considered view, the following are issues for determination:
(a)
whether discrimination in the course of employment had characterized the operations of the 1st respondent?
(b)
who has the onus of proof in discrimination cases?
(c)
were the petitioners’ rights to intellectual property violated by the 1st respondent?
(d)
what was the effect of the non-determination of a cross-appeal by the Appellate Court?
41.
It is the petitioners’ contention that the 1st respondent had subjected them to discrimination in employment. They aver that there was discrimination in the dispensation of international jobs; in awarding grants from the Wellcome Trust; in the distribution of scientific positions with access to funding, to career-progression for African workers, and to equal pay for equal work; lack of commitment to racial equality, as well as a lack of a policy to ensure racial equality; and that there was prejudice against local African workers. They refer to the position alleged, as that of institutional discrimination by 1st respondent.
42.
The petitioners have urged the Court to appreciate that, the ascertainment of “indirect discrimination” is problematic, as it is so unique in its manifestation ¾ and therefore, difficult to prove. They have urged the court to focus on the outcome of indirect discrimination, which they contend, reflects itself in systematic inequalities in society.
43.
The 1st respondent, on the other hand, has refuted the claims of institutional discrimination. For this party, it is submitted that the particulars of institutional discrimination in the petition are novel issues, not at all pleaded at the trial Court; and that parties must be bound by their pleadings. The 1st respondent also relies upon the supplementary affidavit by Dr Solomon Mpoke, which affirms that there had been, indeed, anti-discrimination policies guiding the operations of KEMRI. The party submits further, that all allegations by the petitioners had drawn proper responses through the affidavit of Margaret Rigoro, as well as the supplementary affidavit of Dr Solomon Mpoke.
44.
The Court of Appeal affirmed that the trial Court had failed to consider both the replying affidavit by Margaret Rigoro and the supplementary affidavit of Dr Solomon Mpoke, even though the two affidavits contained the crucial response by the petitioners. We have gleaned the essentials of the trial Court Judgment, and we agree with the Appellate Court, that the two affidavits were entirely overlooked. We have perused the said affidavit of Margaret Rigoro, the legal officer of the 1st respondent, dated 27 April 2012. Annexed to this affidavit is a copy of the memorandum of understanding between KEMRI and Wellcome Trust (marked MR-1); a copy on guidelines and policies on harassment in the work-place (marked MR-2); staff terms and conditions (marked MR-3); e-mail communications on equal work, equal pay and equal opportunity; reviewed salary scales for researchers (marked MR-10). There are nine other annexures in this affidavit, attempting to respond to the allegations made by the petitioners. Similarly, the supplementary affidavit by Dr. Solomon Mpoke is accompanied by a certain number of annexures. The depositions of the two have given details of how the foreign researchers were employed; the mode of engagement between KEMRI and the Wellcome Trust; investigations upon the issues raised by the petitioners; responses on racial-discrimination claims; responses on allegations made regarding training and career stagnation; capacity development under the programme; nature of employment for the petitioners; and other related matters. It is unfortunate that the trial court did not consider these affidavits. Such issues, it is our perception, went to the very core of the work-relations between the petitioners and the 1st respondent, and, consequently, they would be the very basis of the legal reference-points defining the scenario of rights, justice, fair-play, and constitutional entitlements marking the state of employment relations.
45.
The petitioners, though blaming the Appellate Court for considering the affidavit of the 1st respondent while overlooking their evidence, have not shown precisely how that Court ignored their evidence.
46.
The petitioners contest the Appellate Court’s finding that they failed to discharge their burden of proof, that any differentials in pay were unreasonable, unaccountable, and therefore, discriminatory. The petitioners urge that once they proved what they perceived as a prima facie case, the burden ought to have shifted to the 1st respondent, to establish that discrimination played no part in the employment set-up. According to the petitioners, the onus of proof, in discrimination cases, ultimately lies with “the violator”, once the complainant raises the issue of discrimination. The Appellate Court held that it was incumbent upon the petitioners to prove that they were treated differently, that they suffered prejudice, on account only of their skin-colour, or racial background.
47.
It is a timeless rule of the common law tradition Kenya’s juristic heritage and one of fair and pragmatic conception, that the party making an averment in validation of a claim, is always the one to establish the plain veracity of the claim. In civil claims, the standard of proof is the “balance of probability”. Balance of probability is a concept deeply linked to the perceptible fact-scenario: so there has to be evidence, on the basis of which the Court can determine that it was more probable than not, that the respondent bore responsibility, in whole or in part.
48.
The petitioners’ case is set around the constitutional right of freedom from discrimination Constitution of Kenya, 2010, article 27). It is already the standpoint of this Court, as regards standard of proof, that this assumes a higher level in respect of Constitutional safeguards, than in the case of the ordinary civil-claim balance of probability. The explanation is that, virtually all constitutional rights-safeguards bear generalities, or qualifications, which call for scrupulous individual appraisal for each case. This is the context in which the rights-claim in the instant case, founded upon racial discrimination, is to be seen.
49.
Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
50.
This Court in Raila Odinga & others v Independent Electoral & Boundaries Commission & others, Petition No 5 of 2013, restated the basic rule on the shifting of the evidential burden, in these terms:
…a petitioner should be under obligation to discharge the initial burden of proof before the Respondents are invited to bear the evidential burden….”
51.
In the foregoing context, it is clear to us that the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the Court, in discharge of the evidential burden establishing their treatment at the hands of 1st respondent as unconstitutional. Only with this threshold transcended, would the burden fall to 1st respondent to prove the contrary. In the light of the turn of events at both of the Superior Courts below, it is clear to us that, by no means, did the burden of proof shift to 1st respondent.
52.
The allegations of discrimination are captured in various e-mails, affidavits, and the petition itself. The petitioners have not denied that they were engaged in an employment contract with the 1st respondent, which contract expressly stipulated the terms of engagement. The affidavit of Magaret Rigoro brings this out, and also explains how foreign researchers were engaged by the 1st respondent, even though 1st respondent had no control over the terms of their employment. This has not been controverted by the petitioners, who merely claim that such lack of control had exposed them to discrimination.
53.
In spite of the commonplace that proof of “indirect discrimination” is difficult, the petitioners ought to have provided sufficient evidence before the court, to enable it to make a determination. The 1st respondent, by a more positive scheme, went ahead to counter the bare allegations. The petitioners failed, in this regard, to discharge their initial burden of proof.
54.
The petitioners have alleged that their right to property, under article 40 of the Constitution, was violated by the 1st respondent. They have asked the Court to determine whether innovations made when an employee is not in employment belongs to the employer, under section 13(2) of the Industrial Property Act, or not. They claim that the 5th petitioner made some innovations at a time when he was out of employment, during one of the several multiple contract-gaps. They have provided e-mail conversation with one Alex Aiken, who offers to pay a consultancy fee, so that an IT expert can gain access, and transfer information from IMRS (Integrated Records System), that the 5th petitioner had developed. The petitioners have also claimed that the 1st respondent has, on many other occasions, compromised their right to intellectual property by way of “disregard syndrome”, “Mathew Effect”, “citation amnesia” ¾ and this, they perceive as the hallmark of “indirect discrimination” in a scientific setting, offending section 5(8) of the Employment Act.
55.
The 1st respondent, in response, states that the allegation that 5th petitioner, Dr. Moses Nderitu, made some innovation while being out of employment, was not part of the issues pleaded at the Employment and Labour Court. Besides, 1st respondent urged that, at the material time, the petitioners were working as employees of KEMRI, while also being PhD students supported by KEMRI, working under experienced mentors or researchers ¾ all in their capacity as employees of KEMRI.
56.
The Appellate Court was guided by clause 13 of the petitioners’ contract of employment, which provided that any intellectual property, including patents and copyrights arising in the course of KEMRI operations, shall belong to the Institute. The Appellate Court also relied on the terms of section 32(1) of the Industrial Property Act, which provides that in the absence of contractual provisions to the contrary, the right to a patent for an invention made in the course of performance of a task under the employment contract, shall belong to the person who commissioned the work, namely, the employer.
57.
section 32 (5) of the said Act provides for the entitlement of the employee, as follows: “Inventions made without any relation to an employment or service contract and without the use of the employer’s resources, data, means, materials, installations or equipment shall belong solely to the employee or the person commissioned.”
58.
It is evident, in our view, given the foregoing statutory provisions, that the Appellate Court did take the valid and proper standpoint in law: it behoved the petitioners to show that their claim fell within the terms of section 32(5) of the Industrial Property Act, as a basis of claim against 1st respondent.
59.
The petitioners’ claim in respect of Dr. Moses Ndiritu, however, raises its own difficulty. A look at the suit before the Employment and Labour Relations Court shows that, the claim that Dr. Ndiritu had made innovations falling outside the employment framework under KEMRI, did not feature at all in the pleadings. This fact negates a crucial judicial-process element, which is vital in the quest for justice: and, accordingly, we would not allow a fresh claim at this ultimate appellate stage.
60.
We have considered e-mail communications in respect of which the petitioners alleged violations of intellectual property rights. It is not, however, possible to ascertain the point in time when such alleged innovations were made, or the manner in which they were made ¾ so as to enable us to relate them to the period of the employment-relationship with 1st respondent. The particulars of such violations are also inadequately focussed, in their formulation; and this renders it difficult for the Court to relate them to the petitioners herein. The overall effect is that the petitioners did not establish the claim, that they had made innovations of the nature of industrial property, outside their employment, and which 1st respondent did compromise.
61.
The last issue is the failure by the Court of Appeal to determine the cross-appeal filed by the 4th respondent. The Appellate Court did, indeed, make reference to the cross-appeal in its Judgment, though without determining it. The petitioners and the 4th respondent argue that this is denial of justice.
62.
We have considered the details of the cross-appeal, dated 9 January 2019. Its claim is that the trial Judge erred in failing to calculate and to award benefits such as payment for unfair termination of services, payments in lieu of leave; unpaid salary in lieu of notice, and other outstanding payments. It emerges that the trial Court declined to consider the issue of unfair termination, as the contract involving the petitioners had already ended.
63.
The 1st respondent has urged that the cross-appeal was inter-related with the main appeal, and that it necessarily collapsed, with the dismissal of the appeal. There is no doubt that, for the regularity and normalcy of the trial process, the cross-appeal ought to have been determined. As such an opportunity was missed, the proper question now before this Court is: is there a remedy to be granted?
64.
No doubt exists, that the contract involving the petitioners had come to an end. Indeed, the petitioners have not denied that they were magnanimously paid, even for the period during which they rendered no work. This is clear from the Judgment of the Court of Appeal. The Appellate Court, however, had not clearly stated that the cross-appeal lacked merit. If we were now to refer this cross-appeal back to the Appellate Court, for determination, we would not expect anything different. The petitioners having failed to discharge their evidential burden, the plea of unfair process stood unproven, and there was no material before the Court to show unfair determination. In our view of the goals of justice, we see no need to refer the cross-appeal back to the Appellate Court.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/66/eng@2020-01-10
Petition 8 of 2016,Kensalt Limited v Water Resources Management Authority (Petition 8 of 2016) [2020] KESC 67 (KLR) (10 January 2020) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",10 January 2020,2020.0,Nairobi,Civil,Kensalt Limited v Water Resources Management Authority,[2020] KESC 67 (KLR)               ,,"A. Introduction
1.
The respondent raises a preliminary objection (dated 2 November 2016), contesting the jurisdiction of this Court to hear and determine the petition of appeal dated 6 June 2016. It is contended that the petition does not disclose any issue involving the interpretation or application of the Constitution, yet leave to appeal has not been secured from either the Court of Appeal or the Supreme Court, in the terms of Article 163(4) (b) of the Constitution.
B. Background
2.
The respondent, on 21 November 2013, filed a suit in the Environment & Land Court (ELC) at Malindi, against the petitioner, claiming the sum of Kshs.270,295,759.90, as water charges allegedly due, for the use of water in the respondent’s salt-manufacturing process.
3.
The petitioner herein, by Notice of Motion of 17 January 2014, under Order 2, Rule 15 (a) and (d) of the Civil Procedure Rules, sought to have the plaint struck out, and the ELC proceedings dismissed, on the ground that the respondent lacked locus standi to bring the said suit, as it had no mandate whether by the Water Act or the Constitution, or any other law, to levy charges for the use of sea-water. The petitioner urged that, for such lack of locus standi, the ELC lacked jurisdiction to conduct the proceedings; entertain the ELC proceedings; that sea water was “res nullius”, and incapable of ownership whether in law or equity; and that the respondent lacked constitutional authority to levy a tax, in the absence of an express provision permitting it to do so either under the Water Act, or the Water Resources Management Rules 2007 (the Water Rules).
4.
By its Ruling of 17 October 2014, the ELC (Angote J.) allowed the application by the petitioner, and struck out the ELC proceedings on all the grounds except the one that sea-water was “res nullius”.
5.
Aggrieved by the ELC Judgment, the respondent filed Civil Appeal No. 9 of 2015, against the decision of the ELC. The petitioner, for its part, lodged a cross-appeal, limited to challenging the ELC finding that sea-water was not “res nullius”.
6.
The Court of Appeal (Makhandia, Ouko, and M’inoti JJA) at Malindi delivered its Judgment on 22 April 2016, setting aside the Ruling and Order of the trial Court, and directing that the matter be heard on its merits by a different Judge. The Appellate Court observed that the respondent’s case raised triable issues which could only be determined through a full hearing.
","D. Analysis and Determination
20.
The sole question for determination is whether the petition dated 6 June 2016 has been properly brought under Article 163 (4) (a) of the Constitution. This Court has already set clear precedents to guide the application of Article 163 (4) (a) of the Constitution, which relates to jurisdiction. The applicability of the guidelines embodied in such precedents will depend on the facts of each case.
21.
In the Erad Suppliers & General Contractors Ltd case (supra)  this Court held that, for an appeal to be admissible under Article 163(4) (a), a petitioner must demonstrate that the matter coming on appeal was subject to litigation before the High Court, and has risen through the judicial hierarchy on appeal. In the Lenny Kivuti case (supra) and Gatirau Peter Munya (supra), we set out the guiding principles for entertaining appeals under Article 163 (4) (a). In the SAJ case (supra), the Court addressed the issue of injustice, as it may flow from an appeal brought under Article 163(4) (b).
22.
We have attentively considered the content of the plaint at ELC; the application to strike out the plaint; and the appeal before the Appellate Court: and it is apparent to us that the issues in controversy between the parties are novel and complex, and are vigorously contested. The trial Court, however, in its Ruling of 17 October 2014, did strike out the suit.
23.
t is the petitioner’s standpoint that the matter did entail issues of constitutional application and interpretation, at the trial Court. Upon perusing the Ruling of the trial Court, we find that it addresses various articles of the Constitution, before arriving at the conclusion that the respondent lacks the mandate to regulate the use of the sea’s resources. These include Articles 62(1) and (3); 67 (2) (a); 206; 210; and 260. It is no less clear, however, that the Appellate Court had not interpreted or applied the Constitution. But the petitioner submits that, non-determination of fundamental issues by the Court of Appeal, is a proper basis for lodging the petition as a matter of right.
24.
It is necessary for us to consider the context in which various articles of the Constitution were applied or interpreted by the trial Court. The application that led to the respondent’s suit being struck out, was brought under Order 2, Rule 15 (1) of the Civil Procedure Rules, whereunder no evidence was admissible. As rightly held by the Appellate Court, the remedy of striking out pleadings is resorted to most sparingly, and as a last resort; the alternative being a recourse to Rule 15(1), which gives an exception. The trial Judge, however, engaged in a mini-trial, and decided upon substantial issues between the parties: and this led the Appellate Court to observe, quite rightly, that the parties’ ultimate rights are not to be decided at an interlocutory stage, except in the clearest of circumstances, and that the trial Court was only required to decide whether the respondent’s case disclosed a reasonable cause of action, or was an abuse of Court process. No less clear is it to us, that the trial Judge did misapprehend the import of the application before him. This is the context in which the trial Court applied various articles of the Constitution.
25.
In SAJ v. AOG & 2 Others PARA 2013. eKLR, this Court held that its jurisdiction can only be invoked when substantive matters in the appellant’s petition have been answered. Although the Court was, in that case, dealing with jurisdiction under Article 163 (4) (b), the decision is relevant in this case. The trial Court had acted upon pleadings without an oral hearing, to determine a contested action; and this is the basis of our view that, substantive matters in the plaint and the petition have not been answered in the proper forum. There had been triable issues that warranted full trial — these emerging from the issues listed for determination by the trial Court. Such questions as: whether or not the respondent had the power to regulate the use of sea-water, or levy charges for its use; whether sea-water is res nullius, and who, between the appellant and NLC, had power to regulate the use of the water-resource — should have been determined on merits, at the trial. As rightly, in our view, perceived by the Appellate Court, an expert witness would have been called to give evidence, in due conduct of proceedings. Only in these circumstances should the trial Court have applied various articles of the Constitution, in resolving issues of rights between the parties. It emerges, consequently, that the determination made by the trial Court was premature.
26.
It was premature to determine the rights of the parties at the interlocutory stage — a position which remains unaffected by any numbers of reference made to articles of the Constitution. It would, in our view, cause injustice to ascribe such matters to Article 163 (4) of the Constitution, as the issues in controversy between the parties may not be determined on merit. We are in agreement with the Appellate Court, that the issues raised ought to have gone to trial.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/67/eng@2020-01-10
Petition 2 of 2019,SGS Kenya Limited v Energy Regulatory Commission & 2 others (Petition 2 of 2019) [2020] KESC 64 (KLR) (10 January 2020) (Judgment),Judgement,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",10 January 2020,2020.0,Nairobi,Civil,SGS Kenya Limited v Energy Regulatory Commission & 2 others,[2020] KESC 64 (KLR)               ,,"A. Introduction
1.
This is an appeal from a Judgment of the Court of Appeal, dated May 11, 2018, in Civil Appeal No 341 of 2017, which set aside the Judgement and decree of the High Court at Nairobi by (Mativo, J), dated September 22, 2017. The High Court (in JR Misc. Application No 496 of 2017) had quashed the decision of the Public Procurement Administrative Review Board (PPARB), which upheld the decision of the Energy Regulatory Commission to terminate the award of Tender Number ERC/PROC/4/2/16-17/119, won by the petitioner herein. The Judgment of the Court of Appeal had the effect of sustaining the termination of the tender-award, on the ground that the applicable terms of reference did not include the possibility of emergent technical conditions.
B. Background
2.
The 1st respondent, Energy Regulatory Commission, is a public body established under the Energy Act, 2006. Its mandate includes the regulation of electrical energy, petroleum and related products, renewable energy, and other forms of energy. On or about May 12, 2017, the 1st respondent floated tender number ERC/PROC/4/3/16-17/119, for the marking and monitoring of petroleum products, a service meant to curb adulteration of fuel. The tender attracted 3 bids. These were opened on May 31, 2017, with the responding firms being SILPA SA, Intertek Testing Services (EA) Ltd, and SGS Kenya Ltd (SGS).
3.
The 1st respondent appointed an evaluation committee which duly evaluated the bids, on the basis of technical and financial criteria. The evaluation committee recommended, on June 30, 2017, that the contract for the provision of petroleum-marking and monitoring services be awarded to SGS (the petitioner), at an annual cost of US$ 2,760,844.72. This was on the basis that SGS had attained the highest score, and had been the lowest bidder. The Commission, in the course of its recommendation upon the bids received, thus remarked in its evaluation report:
General Observation
(a)
The increasing need of detection of adulteration by use of Jet 1 ought to have been captured in the terms of reference for this tender. This is so because Jet A1 is never marked unlike illuminating kerosene and there is reliable information that the perpetrators of adulteration have now shifted to the use of jet A1 as an adulterant for diesel. Further, the Commission is now aware of an existing technology that can easily detect Jet A1 in motor fuel.
(b)
The team also noted the need for a detailed explanation of how the test-results from the monitoring teams are to be transmitted to the client. To this end . . . the advantage of use of a real-time and tamper-proof mechanism that would provide more authentic results”.
4.
Taking into account the existence of the technology referred to in the general observations, the 1st respondent’s Acting Director for Petroleum, gave an opinion on July 7, 2017, recommending to the Acting Director-General, that the procurement process be terminated, and then re-commenced, with the requirement that the said technological elements be incorporated in the tender, and with reference to the monitoring of the petroleum service. The Acting Director-General considered this opinion, as well as that of the Head of Procurement, and on that basis, approved the recommendation for termination, by virtue of section 63(1)(a) of the Act. The decision to terminate the tender was communicated to all bidders, as required by section 63(4) of the Act.
5.
SGS was aggrieved by the decision to terminate the tender, and filed a request for review, before the Public Procurement Administrative Review Board (2nd respondent), seeking Orders that the said tender-termination be annulled. SGS asked that it be awarded the tender; and in the alternative, SGS sought that the 1st respondent be directed to proceed with the tender and complete the process. The Board, by its decision of 1st August 2017, disallowed the request for review. It also gave the liberty to re-advertise the tender, for the provision of the petroleum marking services.
6.
SGS thereafter moved to the High Court, seeking leave to file a judicial review application. In its motion filed on August 16, 2017, SGS sought Orders of:
(a)
Certiorari, to remove in to the High Court and quash the Board’s decision;
(b)
Prohibition, to countermand the decision of the 1st respondent to proceed with a new tender process;
(c)
Prohibition, to prohibit the 1st respondent from entering into or signing any contract with any third party on the basis of a new tender; and
(d)
Mandamus, directing 1st respondent to proceed with the old tender, including award of the contract to SGS.
7.
Mativo J heard the judicial review proceedings, culminating in a Judgment dated September 25, 2017, bearing the following Orders:
(a)
an orderof certiorari to remove into the High Court to quash the decision and Ruling delivered by the Public Procurement Administrative Review Board on August 1, 2017, in Application No 64 of 2017 (SGS Kenya Limited v. Energy Regulatory Commission);
(b)
an Order of Prohibition to remove into the High Court and quash the decision of the Energy Regulatory Commission, to proceed with the tender process in Tender Number ERC/PROC/4/3/17-18/016 for the provision of Marking and Monitoring Petroleum Products;
(c)
an orderof prohibitiondirected to the Energy Regulatory Commission, prohibiting it, directly and /or through its servant and/or agents, from entering and /or signing any contract with any third party, concerning tender number ERC/PROC/4/3/17-18/016, for the provision of Marking and Monitoring of Petroleum Products;
(d)
an ordermandamus directing the Energy Regulatory Commission to proceed with the tender process in tender number ERC/PROC/4/3/16-17/119, for the provision of Marking and Monitoring of Petroleum Products in conformity with the recommendation of its evaluation committee, for the award of the tender/contract to SGS Kenya Limited;
(e)
each party to bear its own costs.
8.
Aggrieved by the Judgment of the High Court, 1st respondent lodged an appeal in the Court of Appeal. The appellate court, in a Judgment dated May 11, 2018, allowed the appeal, setting aside the Orders of the High Court, and substituting them with an Order dismissing the substantive motion with costs.
9.
The Court of Appeal faulted the High Court judge for determining a judicial review matter as if it was an appeal, and for going into the merits of a decision already taken. The appellate court held it to be improper for the High Court to make value judgment regarding the evidence; to weigh the same, and to minutely examine it, to determine whether it reached a certain standard of acceptance.The court found that the High Court had occasioned room for abuse of its power, by usurping the competences of the Public Procurement Administrative Review Board.
10.
The appellate court held that, in a judicial review matter, the court’s mandate is limited to procedural improprieties, and extends not to the merits of a decision. It held that the Board had been duly mindful of its own earlier decision in Avante International INC v IEBC (Review No 19 of 2017): it took into consideration the nature and weight of the opinion on technological change, which the 1st respondent had acted upon; and the Board’s reasoning exhibited a fidelity to practicality and to good sense. Consequently, the appellate court held, the judge ought to have shown greater deference to the Board’s decision, and should have been more circumspect in its view of such a decision, bearing in mind the specializations of the Board. The appellate court held that the 1st respondent did not bear a statutory duty to award the tender to SGS, or to any other entity, so as to attract the compulsive force of mandamus.
11.
Aggrieved by the Judgment of the Court of Appeal, the petitioner sought to have the matter certified as one of general public importance under article 163(4)(b) of the Constitution an application which was allowed by the Appellate Court on December 19, 2019, upon a single issue: whether tribunals are bound by the doctrine of stare decisis. The petitioner filed a petition of appeal in this court, thereafter, on January 22, 201","E. Analysis And Determination
37.
Learned Senior Counsel, Mr. Muite, had urged the court to consider the instant appeal under the terms of article 163(4)(a) as well as (b). Not only, according to him, has this case been certified by Court of Appeal as involving “matter of general public importance”, (ie Clause (b)), it also involves issues of interpretation and application of the Constitution (in accord with clause (a)). In Fahim Yasin Twaha v. Timamy Issa Abdalla & 2 Others [2015]eKLR, this court in resolving a similar issue, held as follows (paras 39 and 41):
(i)
“The two avenues of the appellate jurisdiction of this court are distinct. Firstly, an appraisal of the nature of an appeal as involving matter of constitutional interpretation and/or application, signals access to the Supreme Court ‘as of right’; and no form of authorization or leave from the Court of Appeal, or the Supreme Court is required at the beginning….”
(ii)
“Suffice it to say that the path that a litigant takes is determined on the basis of the subject-matter, as has been held by the superior courts. Once the Court of Appeal renders its decision, the litigant is able to elect which course to follow. This decision is taken in advance, as it is the basis of determination on whether to seek certification first, or proceed straight to the Supreme Court. Thus, the decision on how to proceed, rests on the character of the issues involved in the subject matter, rather than on such procedural shortfalls as may have afflicted a litigant’s progress. It follows that where a party has elected the path to the Supreme Court ‘as of right’, that matter cannot be ‘converted’ to one where certification is required, just because time for filing ‘an appeal as of right’ has lapsed…”
38.
It is clear to us that the petition of appeal has been brought under article 163(4)(b) of the Constitution. We have also taken note that the written submissions have not incorporated arguments on article 163(4)(a). The new line of submissions only came up during the highlighting stage.
39.
Such a scenario comports with our Ruling of February 12, 2019, when the petitioner herein was seeking to stay the Judgment of the Court of Appeal. We held, on that occasion, that the application was properly before us, having been certified by the appellate court as raising a single question of great public importance: whether tribunals are bound by the doctrine of stare decisis. We do not intend to belabour this issue. The petitioner herein elected to proceed under the second limb.
40.
The petitioner approached the High Court by way of the prescribed procedures under Judicial Review, which revolve around the paths followed in decision-making. Such a course, as the appellate court properly held, is not concerned with the merits of the decision in question. The law in this regard, which falls under the umbrella of basic “Administrative Law”, is clear enough, and it is unnecessary to belabour the point.
41.
So we turn to the single issue before us: are the Tribunals bound by the doctrine of stare decisis? The petitioner has contended that the Review Board failed to follow its own decision in Avante, without any explanation. According to the petitioners, stare decisis applies to quasi-judicial tribunals, to the intent that there be uniformity/consistency, predictability, and certainty in law, in general terms. The 1st respondent, quite to the contrary, has argued that tribunals are not bound by their previous decisions such being only persuasive; and that each tribunal-task is to be determined on the basis of the facts before it.
42.
From the two contending propositions, it emerges, in our view, that tribunals, in their primary category, are specialized bodies charged with programming and regulatory tasks of the socio-economic, administrative and operational domains. Membership in such tribunals generally reflects the essential skills required for the specific tasks in view. The Public Procurement Administrative Review Board falls within this category. It is endowed with requisite experience from its membership, and has access to relevant information and expertise, to enable it to dispose of matters related to procurement. The question is: whether it is bound by its previous decision, as it takes decisions on different matters lately coming up.
43.
Such a variegated range of implementation scenarios, it is apparent to us, calls for flexibility in the regulatory scheme. In principle, matters on the agenda of an administrative tribunal will merit determination on the basis of the claims of each case, and will depend on the special factual dynamics. The relevant factors of materiality, and of urgency, will require individualised response in many cases: and in these circumstances, a strict application of standard rules of procedure or evidence may negate the fundamental policy-object. On this account, the specialized tribunal should have the capacity to identify relevant factors of merit; be able to apply pertinent skills; and have the liberty to prescribe solutions, depending on the facts of each case. Such a tribunal should fully take into account any factors of change, in relation to different cases occurring at different times: without being bound by some particular determination of the past.
44.
We would agree with the 1st respondent, that administrative decision-makers should have significant flexibility, in responding to changes that affect the subject-matter before them. Matters before an administrative tribunal should be determined on a case-to-case basis, depending on the facts in place.
45.
The petitioner has asked this court to consider if it was entitled to Orders of judicial review. It is argued that, failure to do so would render the petition a bare academic exercise. It is the case, however, that the petitioner has engaged this court in an essentially academic exercise. This prayer has exceeded the leave and certification granted by the Court of Appeal, within the terms of article 163(4)(b) of the Constitution. We have, however, observed that the appellate court was right in its finding that the High Court should not have gone to the merits of the Review Board decision as if it was an appeal, nor granted the Order of mandamus, since the 1st respondent did not owe any delimited statutory duty to the petitioner.
46.
The petition of appeal lacks merit.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/64/eng@2020-01-10
Petition 6 of 2016,Manchester Outfitters (Suiting Division) Ltd (Now known as King Wollen Mills Ltd) & another v Standard Chartered Financial Services Ltd & 2 others (Petition 6 of 2016) [2019] KESC 7 (KLR) (20 December 2019) (Judgment),Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",20 December 2019,2019.0,Nairobi,Civil,Manchester Outfitters (Suiting Division) Ltd (Now known as King Wollen Mills Ltd) & another v Standard Chartered Financial Services Ltd & 2 others ,[2019] KESC 7 (KLR)               ,,"A. Background
1.
The origin of this appeal can be traced to HCCC No 5002 of 1990, where the 1st and 2nd petitioners (as the 1st and 2nd plaintiffs) had filed a suit challenging the appointment of the 1st and 2nd respondents (as 1st and 2nd defendants) as receiver managers under a debenture. In the suit dated September 5, 1990, the 1st and 2nd petitioners further sought to impugn the debenture and the securities thereunder which had formed the basis of the appointment of the 1st and 2nd respondents. In the re-re-amended plaint dated November 18, 1992, the 1st and 2nd petitioners sought;
(i)
A declaration that the 1st defendant (1st respondent) is not entitled to enforce the provisions of the debenture and an injunction to restrain the 1st defendant from seeking to enforce the debenture and a mandatory injunction that the 1st defendant do restore the premises to the 1st plaintiff;
(ii)
Further, in the alternative, a declaration that the calling of the 1st plaintiff’s indebtedness and the appointment of the receivers and managers constituted a breach of agreement;
(iii)
Further or in further alternative, the appointment of the receivers and managers under the purported debenture be set aside as the appointment was made maliciously, in bad faith and for improper motives; and
(iv)
The appointment of receivers and managers was wrongful and constituted a trespass and the 1st plaintiff suffered loss and damage and is entitled to an order as to inquiry of damages.
2.
In response to the 1st and 2nd petitioners’ claim, the 1st respondent filed a defence to the re-re-amended plaint and amended counterclaim dated November 25, 1992. Further to contesting that the appointment of the 2nd respondent as receiver manager was lawful pursuant to the debenture dated April 5, 1982, the 2nd and 3rd respondents claimed Kshs 2,337,161.75 and interest thereon at 10% per annum being their expenses for services rendered under the debenture. The 1st respondent on its part sought a declaration that the debenture dated April 5, 1982 was a valid and subsisting security for the indebtedness of the 1st petitioner to the 1st respondent, and furthermore, made a claim for Kshs 24,908,418 with interest thereon at 10% per annum being the outstanding balance on the loan facilities to the 1st and 2nd petitioners .
3.
The court (Githinji, J as he then was) heard the matter and rendered his Judgment on July 30, 1999. He dismissed the suit by the 1st and 2nd Petitioners in its entirety and allowed the Counterclaim as filed by the 1st and 2nd respondents.
4.
Aggrieved by the Judgment of the High Court, the 1st and 2nd petitioners moved to the Court of Appeal and filed Civil Appeal No 88 of 2000. In the appeal, they sought the setting aside of the Judgment by the High Court, or in the alternative, an order remitting the matter to the High Court for re-hearing before a different judge. It was noted that during the pendency of the appeal and following the dismissal of several interlocutory pleadings, the respondents had sold off the properties and assets of the 1st and 2nd petitioners in recovery of the 1st respondent’s funds.
5.
The Court of Appeal (Tunoi, Lakha & Owuor JJA) delivered its judgment on October 4, 2002. By a majority decision (with Tunoi JA dissenting), the court allowed the appeal and consequently awarded the 1st petitioner, inter alia, a sum of Kshs 251,000,000 plus interest at 14% per annum from 1st August 2002, which payment was to be made within 30 days. The damages awarded to the 1st petitioner were largely based on a valuation report that had been admitted to the court de bene esse from the bar by counsel for the 1st petitioner.
6.
Being aggrieved by that decision, the respondents attempted to seek recourse before the COMESA Court of Justice. Their contention before that court was that the appellate court had acted in excess of its jurisdiction and violated the rules of natural justice, in particular the respondents’ right to fair hearing. They however, withdrew the matter from the COMESA Court on July 20, 2006.
7.
On August 18, 2006, the respondents then filed an application in the Court of Appeal being Civil Application No Nai 224 of 2006 in which they sought a declaration of nullity and setting aside of the Judgment of the Court dated October 4, 2002. The application was premised on the provisions of sections 64 and 77(9) of the repealed Constitution, section 3 of the Judicature Act and rule 1(2) of the Court of Appeal Rules, 1987 (repealed). Essentially, the application sought to re-open and re-examine the previous Judgment by the appellate court.
8.
The central ground upon which the application was premised was that there was bias in the judgmentissued by the court, which bias arose from the fact that Lakha JA (as he then was) while an advocate and before joining the Bench, had been instructed by the petitioners to represent them when the matter was before the High Court. It was also noted that the said Lakha JA had however declined the instructions and had been subsequently removed by the Chief Justice from an earlier constituted bench involving the same parties for this same reason.
9.
On April 18, 2007, the petitioners filed their replying affidavitin opposition to the application. On May 21, 2007, they further filed a notice of preliminary objectioncontending that the appellate court lacked the requisite jurisdiction to review its judgments. The preliminary objectionwas dismissed.
10.
On April 8, 2016, the appellate Court (Karanja, Okwengu, Mwera, GBM Kariuki & Mwilu JJA) delivered its Ruling on the application for review of the Judgment. They set aside the said judgment of the appellate court dated October 4, 2002, and ordered that Civil Appeal No 88 of 2000 be heard fresh, notwithstanding that the same had been determined finally and upon all the issues that had arisen for determination.
","C. Analysis and Determination
23.
Upon considering the arguments by the respective parties and their submissions, we deem that the following issues fall for determination;
(i)
Whether this court has jurisdiction to hear and determine the instant petition; and
(ii)
Whether the Court of Appeal has the jurisdiction to review its decisions.
(iii)
What reliefs are to issue including on costs?
(i) Jurisdiction of this court
24.
In the Matter of the Interim Independent Electoral Commission (supra) the issue of the jurisdiction of this court was settled. Further, in the SK Macharia case, we rendered ourselves as follows;
“
A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. This court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
25.
Further, in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC Application No 5 of 2014; 2014 eKLR on the issue of jurisdiction, this court held:
“
The import of the court’s statement in the Ngoge case is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.”
26.
Have the 1st and 2nd petitioners demonstrated that the issues they raise before this court fall within the ambit of constitutional application or interpretation? The main issue in contention in the appeal is whether the Court of Appeal had the residual jurisdiction to review its previous decisions and/or judgments? In that regard, the 1st and 2nd petitioners submitted that sections 64(1) and 79(9) of the repealed Constitution, section 3 of the Appellate Jurisdiction Act, section 3 of the Judicature Act and rule 1(2) of the Court of Appeal Rules, 1987 had been relied upon in making the application for review in Civil Application No Nai 224 of 2006. These provisions, they argued, had either been repealed or amended after the enactment of the Constitution, 2010, and that the court therefore, could not make a determination based on non-existent law.
27.
On their part, the 1st and 2nd respondents contend that the promulgation of the Constitution, 2010, did not leave a vacuum, but that by dint of sections 7 and 22 of the Sixth Schedule, as well as articles 262 and 263, a transitional mechanism which regulated how the then existing laws would be applied was provided. They relied on the decision in the case of Communications Commission of Kenya & 5 others v Royal Media Services & 5 others Petition No 14 of 2014 where it was held:
“
The inevitable inference resolves into the principle that the new Constitution did not envisage or create a legal vacuum and all processes regulated by law were to continue in progress, as signaled by the Constitution.”
28.
On our part, and on the question whether the present appeal is properly before us, in Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another (Tunoi and Wanjala SCJJ) SC Petition No 3 of 2012; (2012) eKLR, this court was categorical that;
“
Article 163(4)(a) must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court……Towards this end, it is not the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application.”
29.
The court expounded upon this principle at paragraph 28 where it pronounced itself thus:
“
The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of article 163(4)(a).”
30.
What the 1st and 2nd petitioners challenge in that context is whether the Court of Appeal was justified in allowing an application for review based on the provisions of section 3A of the Appellate Jurisdiction Act, as read with sections 64 and 77 of the former Constitution. In our view, the contestation that the appellate court applied provisions of the law that were not in force when the application for review was made go to the exercise of the powers donated to the court under article 164(1) & (3) of the Constitution, which establishes the Court of Appeal and confers upon it, powers to exercise its jurisdiction.
31.
The Munya and the Nduttu cases, in our view also, adequately clarify the frontiers of the appellate regime of this court embodied in article 163(4)(a) of the Constitution. They thus provide a basis upon which the jurisdictional question before us may be decided.
32.
In stating so, we must remind ourselves that what is before us is an appeal, not from a judgmentof the Court of Appeal but a rulingin which the Court of Appeal accepted the invitation to review its own judgmentfor reasons we have already restated. Do we have the jurisdiction to determine such an appeal as of right under article 163(4)(a) of the Constitution? Can a ruling of the Court of Appeal after judgment be said to have conclusively been the basis for interpretation and application of the Constitution?
33.
In that regard, we partly answered the above questions in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others 2013 eKLR where we stated thus:
“
In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the Superior Courts, and has progressed that the normal appellate mechanism so as to reach this court by way of an appeal, as contemplated under article 163(4)(a) of the Constitution. Indeed, ordinarily, in our view, a question regarding the interpretation or application of the Constitution may arise from a multiplicity of factors and interrelationships in the various facets of the law. Consequently, the Constitution should be interpreted broadly and liberally, so as to capture he principles and values embodied in it.”
Furthermore, in Geoffrey Asanyo & 3 others v Attorney General, Sup Ct Petition No 21 of 2015 2018 eKLR, we stated:
“
It thus emerges that a concise reading of the judicial principles in article 159(2) of the constitutionwould show that they are non-derogable, and have to be adhered to by all courts and Tribunals exercising judicial power/authority. Where there is, therefore, a prima facie case of derogation, it behoves this court to intervene, so as to safeguard the Constitution, within its jurisdiction under article 163(4)(a). This was well stated in the Joho case paragraphs 51 & 52 where the court expressed itself thus:
‘In defending the Constitution and the aspirations of the Kenyan people, this court must always be forward-looking, bearing in mind the consequences of legal uncertainty upon the enforcement of any provision of the Constitution. This aspect of defending the Constitution is replicated under article 163(4)(a), which allows appeals from the Court of Appeal to the supreme Court as of right, in any case involving the interpretation or application of the Constitution. Such is the approach that this court in hearing this appeal must seek to apply.
Applying a principled reading of the Constitution, this court responds to the demands of justice by adjudicating upon issues that tend to bring the interpretation or application of the Constitution into question. However, it is to be affirmed that any appeal admissible within the terms of article 163(4)(a) is one founded upon cogent issues of constitutional controversy. The determination that a particular matter bears an issue or issues of constitutional controversy properly falls to the discretion of this court, in furtherance of the objects laid out under section 3 of the Supreme Court Act, 2011 (Act No 7 of 2011)”",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/7/eng@2019-12-20
Civil Application 1 of 2019,Okoiti & another v Attorney General & another (Civil Application 1 of 2019) [2019] KESC 5 (KLR) (Civ) (20 December 2019) (Ruling),Ruling,Supreme Court,Supreme Court,I Lenaola,20 December 2019,2019.0,Nairobi,Civil,Okoiti & another v Attorney General & another,[2019] KESC 5 (KLR)               ,,"Brief facts
The applicants sought a review of the deputy registrar's decision to decline to admit pleadings. They said that the decision was a political one and that it was meritless, unreasonable, arbitrary and offensive. They also stated that it was a decision made contrary to the rules of natural justice and in violation of the applicants' rights of access to justice.
Issues
Whether the Supreme Court had jurisdiction to review a decision by its deputy registrar to decline to admit pleadings.
Under what circumstances would the Supreme Court review a decision by its deputy registrar to decline to admit pleadings?","Having carefully considered the pleadings and the submissions made by the applicants, the following issues arise for determination;
(a)
Whether this court has jurisdiction to review the decision of the Deputy Registrar; and
(b)
Whether the decision made by the Deputy Registrar warrants a review.
(a)
Whether this court has the jurisdiction to review the decision of the Deputy Registrar.
10.
In the above context, rule 4A (1)(b) provides:
“
The role of the Registrar shall be to−
(a)
…
(b)
decline to admit pleadings that are not in accordance with the Constitution, the Act, the relevant rule or the court’s practice Directions for filings”
11.
Rule 4A (2) of the Rules then reads;
“
Any party aggrieved by the decision of the Registrar made under this rule may apply to a single judge of the court for a review of the decision.”
12.
The decision by the Deputy Registrar made on November 27, 2018reads in part as follows:
“
It is clear that the application stands in conflict with the terms of the Constitution and the Supreme Court of Kenya Act, as well as the Court Rules. In the circumstances, I decline to admit it under rule 4A(1)(b) of the Supreme Court Rules 2012.”
13.
From a concise reading of the Deputy Registrar’s Ruling, it is not in doubt what provisions he relied upon in making his decision and it is self-evident from the decision itself that he invoked rule 4A(1)(b) in doing so. The merits of his decision will be shortly addressed. Without belaboring the point therefore, we hold that this court is vested with the requisite jurisdiction to hear and determine the present application which seeks to review and/or set aside the impugned decision of the Deputy Registrar.
(b) Whether the decision made by the Deputy Registrar warrants a review
14.
The roles of the Registrar are provided under rule 4A of the Supreme Court Rules. One such role under rule 4A(1)(b) is to decline to admit pleadings that are not in accordance with the law. These roles may be referred to as case management, or the administrative roles of the Registrar and they are also set out broadly in rule 7 of the Rules. These roles, in addition, extend to the maintenance of the register under rule 7B and the filing of documents under rule 7E.
15.
Under rule 4A(1)(b), the role of the Registrar is limited to declining to admit documents that are yet to be filed and are therefore not on the record. The ‘not on record’ role is similar to that provided under rule 7E(2) of the Rules which reads;
“
The Registrar may refuse to accept any document that does not comply with the Act or these rules and may issue an order rectifying the pleadings so that the document complies with the Act or these Rules.”
16.
The dissimilarity however between the two provisions i.e. 4A(1)(b) and 7E is that rule 7E provides for a remedy in the event that the Registrar finds that a document that a party seeks to file does not comply with the Act or the Rules, i.e. issue an order rectifying the pleadings so that they are in conformity with the Act or the Rules. The power to issue such orders is discretionary as the Rule also states that the Registrar “may” issue such orders. It is a power that the Registrar may, in carrying out her obligations, choose to either exercise or not. This discretion is not provided under rule 4A(1)(b) which is worded in strict terms once the pleadings do not meet the muster of the law.
17.
Did the Deputy Registrar therefore act or issue an order that was unreasonable or arbitrary? It is not in dispute in that regard that the powers exercised by the Deputy Registrar were delegated powers from the Registrar, and as such, and in exercise of these delegated powers, acted as provided in the Rules, and in particular within rule 4A(1)(b). However, the applicants nonetheless contend that the decision was bereft of reasons or merit, and therefore, in contravention of articles 48, 50(1) and 163(7) of the Constitution which speak to the right to access to justice and fair trial.
18.
The applicants also contend that the Deputy Registrar sought to delve into the merits of the application, and struck out the pleadings before the same could be interrogated on their merits. They argue in that regard that the striking out of pleadings is a power that should be cautiously exercised, and only so exercised in the most deserving and clear of cases. They however also admittedly contend that the decision made by the Deputy Registrar was an administrative decision, stating in their submissions that the power to dismiss pleadings and the power to decline to admit pleadings are distinguishable, with the former being a judicial function, while the latter is an administrative function.
19.
The above is an important observation that was made by the applicants and which is germane to the instant application, and in determining whether the Deputy Registrar struck out or refused to admit pleadings.
20.
From the record, the Deputy Registrar in refusing to admit the pleadings of the applicants, issued a short decision, in which he stated that the pleadings that the applicants sought to be admitted were not in accordance with the Constitution, the Act, the Rules or Practice Directions.
21.
The Applicants fault the Deputy Registrar for making the above decision which, their opinion, was bereft of reasons. We note in that regard that rule 4A(1)(b) of the Rules, generally provides the reasons for declining to admit pleadings; that the pleadings are not in accordance with the Constitution, the Act, the relevant Rules or Practice Directions. Any one of these reasons therefore suffices at a general level as to why the Deputy Registrar may have refused to admit the applicants’ pleadings. However, it is also our view that specific reasons needed to be adduced with specific references to the parts of the Constitution and the Supreme Court Act that the pleadings were afoul of. It is not enough to cite the relevant Rule without giving details of the specifics thereof.
22.
Further, while the Deputy Registrar had the opportunity to review and consider the documents that the applicants intended to be admitted, caution and precaution had to be observed to ensure that the reasons given would then clearly and specifically separate a decision on the merits of the pleadings as opposed to a mere administrative action. Not giving reasons and merely restating the applicable law and rules is an action that may lead to mis-justice. We say so because it is indeed trite that any decision that affects the rights of parties must, at the very least, have reasons that are cogent and explanatory of the decision made.
23.
It is also our view that, rule 4A(1)(b) is not a mere administrative provision. It calls upon the Registrar/Deputy Registrar to consider the pleadings sought to be filed against the expectations of the Constitution, the Supreme Act, the Supreme Court Rules and Practice Directions and apply his/her legal mind to the question whether the said pleadings are in accord with specific provisions of the said Laws and Directions. Where they are not, justice demands that reasons, predicated on specific provisions of the Laws and Directions, ought to be given to an applicant as being locked out of the seat of justice, more so at the apex Court, is a serious matter indeed.
24.
With respect therefore, and without going into the merits of whatever issues the applicants has sought to place before the court, the decision of the Deputy Registrar is one for review and setting aside.
25.
As to costs, the respondents did not make any attempt at filing any pleadings in support or in objection to the application. As such, the application was uncontested, even though the 2nd respondent entered appearance and intimated that it intended to file its pleadings. In accordance with rule 46(1)(a) of the Rules, any costs payable shall be assessed by the court when making its decision. Since this is an uncontested application, it would only be prudent that no order as to costs be made.
26.
The upshot of our findings above is that the following orders are issued;
(a)
The notice of motion dated January 14, 2019 is hereby allowed and the Ruling of the Deputy Registrar made on November 27, 2018 is hereby reviewed and set aside.
(b)
There shall be no order as to costs.
27.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/5/eng@2019-12-20
Petition 22 of 2018,Base Titanium Limited v County Government of Mombasa & another (Petition 22 of 2018) [2019] KESC 9 (KLR) (17 December 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",17 December 2019,2019.0,Nairobi,Civil,Base Titanium Limited v County Government of Mombasa & another,[2019] KESC 9 (KLR)               ,,"
1.
Upon perusing the Notice of Motion application dated 28th September 2018, and filed on even date for enlargement of time to file a Supplementary Record of Appeal out of time in an appeal against the Judgment and Orders of the Court of Appeal delivered on 15th July, 2018 in Civil Appeal No. 69 of 2017, brought under the Provisions of Rules 21(1) and 53 of the Supreme Court Rules, 2012; and
2.
Upon reading the Applicant’s supporting affidavit sworn by Desterio OyatsI on 28th September, 2018; and
3.
Upon considering the written submissions filed by the Applicant on 17th October, 2018 wherein it is contended that the Applicant was unable to extract the formal Order appealed against from the Court of Appeal within the stipulated period of fifteen 15 days from the date of filing a Notice of Appeal, hence omitting the said Court Order from the Record of Appeal before this Court; that the delay in extracting the Order was occasioned by the 1st Respondent’s change of advocates immediately after receipt of the Notice of Appeal that unaware of the change of advocates, the Applicant, as is required by law in extracting a Court Order, sent a Draft to the 1st Respondent’s previous advocates on record for their approval; that the previous advocates failed to respond to the Applicant’s request for approval; that the 1st Respondent’s new advocates only filed a Notice of Change of advocates on 27th August 2018; that as at the said dated, the Appeal however had been filed on 15th August 2018, and only 2 days were remaining to the expiry of the specified 15 days within which a party can file a Supplementary Record of Appeal without leave of court; that it was practically impossible to agree on the wording of the Order and extract the same within 2 days; that upon receipt of the Notice of Change of Advocates, the Court of Appeal Order was promptly extracted, and the parties requested for a mention date to record a consent order, allowing for the filing of a Supplementary Record containing the said Order, but were advised to file a formal application for enlargement of time to file the same, hence the present application; and
4.
Upon noting that the 2nd respondent, has neither filed any response to the instant application, nor appeared before this Court on 12th October 2018, 23rd October 2018, and 18th July 2019, despite service of Mention Notices;
5.
We Have Considered the question at the core of the application viz: whether on the basis of the supporting written submissions of the 1st Respondent, the Applicant herein, has made a compelling case for this Court to exercise discretion in its favour and thereby grant the orders sought. By a unanimous decision of this Bench, pursuant to the provisions of Sections 21(2) of the Supreme Court Act, 2011 and Rules 21, 23 and 53 of the Supreme Court Rules, 2012, we find as follows:
The forty-eight day delay, has been explained to our satisfaction by the Applicant. We are persuaded that, the inability by the Applicant, to obtain the approval of its Draft Order timeously, compounded by the change of advocates by the 1st Respondent, adequately explain the delay in filing the Supplementary Record of Appeal.","Upon noting that the 2nd respondent, has neither filed any response to the instant application, nor appeared before this Court on 12th October 2018, 23rd October 2018, and 18th July 2019, despite service of Mention Notices;
5.
We Have Considered the question at the core of the application viz: whether on the basis of the supporting written submissions of the 1st Respondent, the Applicant herein, has made a compelling case for this Court to exercise discretion in its favour and thereby grant the orders sought. By a unanimous decision of this Bench, pursuant to the provisions of Sections 21(2) of the Supreme Court Act, 2011 and Rules 21, 23 and 53 of the Supreme Court Rules, 2012, we find as follows:
The forty-eight day delay, has been explained to our satisfaction by the Applicant. We are persuaded that, the inability by the Applicant, to obtain the approval of its Draft Order timeously, compounded by the change of advocates by the 1st Respondent, adequately explain the delay in filing the Supplementary Record of Appeal.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/9/eng@2019-12-17
Application 3 of 2019,"Gichanga v Secretary, Teachers Service Commission (Application 3 of 2019) [2019] KESC 88 (KLR) (17 December 2019) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",17 December 2019,2019.0,Nairobi,Civil,"Gichanga v Secretary, Teachers Service Commission",[2019] KESC 88 (KLR)               ,,"Upon perusing the Notice of Motion Application dated 1st February 2019, and brought under Sections 15 and 16 of the Supreme Court Act, and any other enabling provisions of law, seeking extension of time to file a Notice of Appeal and an Appeal out of time against the Judgment and Orders of the Court of Appeal, in Civil Appeal No. 122 of 2017 delivered on 20th April, 2018; and
2.
Upon reading the Applicant’s grounds in support of the application and his undated but sworn supporting affidavit, wherein he avers that; the delay in filing the Notice of Appeal was occasioned, not by any act or omission on his part, but by the failure of the Court of Appeal, to inform him of his right of appeal to the Supreme Court, under Article 163 (4) (b) of the Constitution; and
3.
Upon considering the Applicant’s written submissions filed on 2nd August 2019, wherein, the Applicant merely draws the Court’s attention, without more, to the failure by the Respondent, to file written submissions in response to the Application as directed by the Deputy Registrar; and
4.
While noting that indeed, the Respondent has failed to comply with the directions of this Court, requiring it to file written submissions in response to the Application herein, within the specified timeframes;","We find as follows:
The averments and written submissions, by the Applicant herein, in support of his Application for extension of time to file an Appeal, do not provide a sufficient basis upon which, this Court can exercise its discretion to indulge the Applicant. The reasons advanced by the Applicant, to explain the inordinate delay (to wit, 290 days), in filing the Appeal, are neither reasonable, nor credible. The Application does not meet the threshold for grant of extension of time as set out in Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others Application No. 16 of 2014 and in Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others SC Application No. 15 of 2014;
Having made the foregoing determinations, by a unanimous decision of this Bench, we make the following Orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;
Orders
(i)
The Application dated 1st February, 2019 and filed on 4th February, 2019 is hereby dismissed.
(ii)
No Orders as to cost.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/88/eng@2019-12-17
Application 1 of 2014,Kiarie & 2 others v Administrator of the Estate of John Wallace Mathare (Deceased) & 2 others (Application 1 of 2014) [2019] KESC 85 (KLR) (17 December 2019) (Ruling),Ruling,Supreme Court,Supreme Court,SC Wanjala,17 December 2019,2019.0,Nairobi,Civil,Kiarie & 2 others v Administrator of the Estate of John Wallace Mathare (Deceased) & 2 others,[2019] KESC 85 (KLR)               ,,"
1.
Upon perusing the Notice of Motion Application by the Applicants dated 12th June 2018, brought under Rules 21, 49 and 53 of the Supreme Court Rules, 2012 and Article 163 of the Constitution, seeking an extension of time to file a Reference against the Taxation Ruling and Orders of the Supreme Court Deputy Registrar dated 13th April, 2018 in Supreme Court, Civil Application No. 1 of 2014; and
2.
Upon reading the Applicants’ Supporting Affidavit sworn on 12th June 2018; and
3.
Upon considering the Applicants’ written submissions dated 12th June 2018, and filed on 8th August 2018, wherein the Applicants submit that, the delay in filing the Reference under Rule 49 of the Supreme Court Rules 2012, was occasioned by the Supreme Court Registry’s delay in furnishing them with a copy of the typed proceedings; that the typed proceedings were only availed to the Applicants on 17th May 2018; and
4.
Upon reading the 1st and 2nd Respondents’ Replying Affidavit sworn on 10th July 2018, and filed on 11th July 2019, in which the Respondents oppose the Application, arguing that a copy of the Ruling and typed proceedings are not required to file a Reference on Taxation under Rule 49(1) of the Supreme Court Rules; that even after being furnished with a copy of the Ruling and typed proceedings, the Applicants have not explained the 30 day delay in filing the Taxation Reference; that the Application is brought with an aim to delay this cause, hence an abuse of court process; and","Upon considering the 1st and 2nd Respondents’ written submissions dated 7th August 2018 and filed on even date in which, the Respondents have argued, that the Applicants filed their application for extension of time after an unjustified delay of 48 working days from the date of delivery of the Ruling; that the whole period of delay has not been explained satisfactorily to the Court; that the Respondents will suffer prejudice should the extension of time be granted; and, that the Application is an afterthought and an abuse of court process;
6.
I find as follows;
a)
A copy of the Ruling and typed proceedings were availed to the Applicants on the 17th May 2018, and yet, it was not until the 12th of June 2018, that they filed the Application for extension of time. The Applicants contend that the 27-day delay is the time it took them, to prepare the application for extension of time. Such an explanation, in my view, is neither reasonable nor credible.
7.
Having considered the Application and the Affidavit filed in support thereof, the Replying Affidavit in opposition thereto, and the written submissions of the respective parties, I make the following Orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/85/eng@2019-12-17
Petition (Application) 5 of 2019,Kombe v Sheikh & 4 others (Petition (Application) 5 of 2019) [2019] KESC 84 (KLR) (Civ) (17 December 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",17 December 2019,2019.0,Nairobi,Civil,Kombe v Sheikh & 4 others,[2019] KESC 84 (KLR)               ,,"Upon perusing the Notice of Motion Application dated 24th March 2019, brought under Sections 3, 12, and 24 of the Supreme Court Act, 2011 and Rules 3, 8, 23, 26 and 53 of the Supreme Court Rules, 2012, seeking an extension of time to file an appeal and record out of time against the Ruling and Orders of 19th December, 2018 by the Court of Appeal in Election Appeal No. 32 of 2018 Application No. 261 of 2018 , for the appeal and record filed on 6th February, 2019 to be deemed as properly on record, for leave to amend the Appeal and for leave to file a supplementary record of appeal; and
2
Upon reading the Applicant’s grounds in support of the Application and the Supporting Affidavit sworn on 14th March, 2019 by Omagwa Angima, wherein the deponent states that the delay in filing the Appeal and Record of Appeal, was occasioned by circumstances beyond the Applicants control, namely;
i
The delay, in getting certified copies of typed proceedings from the Court of Appeal within the stipulated 3o days from the date of filing the Notice of Appeal;
ii
That on 1st February 2019, the last day on which, the Applicant would have filed the Appeal, this Court’s registry was closed, and that Upon inquiry, the Applicant was informed that the registry staff members were attending a training in Naivasha;
iii
That the registry remained closed, until the 4th of February 2019, when the applicant lodged his Appeal, but was advised to effect certain corrections thereto; and
iv
That it wasn’t until the 6th of February 2019, when the Appeal and Record of Appeal were finally presented and lodged, thus occasioning a six-day delay.
3
Upon considering the Applicant’s written submissions dated 9th May, 2019 and filed on 10th May, 2019 wherein the Applicant restates the grounds in support of the application, and in addition submits that the Record as filed is incomplete, as it is not in keeping with Rule 33 g and h of the Supreme Court Rules, 2012; and
4
Upon noting that the Respondents have not complied with the directions of this Court issued on 8th of April 2019, 3rd of June 2019, and 3rd of July 2019;","We Find as follows:
a
In keeping with the decision of this Court in Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others Application No. 16 of 2014 and Hassan Nyanje Charo v Khatib Mwashetani & 3 Others SC Application No. 15 of 2014; we are satisfied that the applicant has provided a plausible and reasonable explanation for the delay in filing of his Appeal and Record of Appeal. We are further satisfied that the delay in these circumstances was not inordinate.
7
We also restate and re-affirm the principle enunciated in Nicholas Kiptoo Korir Salat Supra that the appropriate remedy, for curing a delay in filing an appeal, is to seek an Order from the Court, extending the time within which, to file the same. We still take a dim view of applications, asking the Court to deem as properly filed, those appeals that have been lodged out of time.
8
Having made the foregoing determinations, by a unanimous decision of this Bench, we make the following Orders under Section 23 2 b of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;
Orders
i
The application dated March 24, 2019 seeking the extension of time to file the Appeal and Record of appeal is hereby allowed;
ii
Applicant shall file the Appeal and Record of Appeal within 14 days from the date of this Ruling;
iii
The purported Appeal, to wit, Petition No. 5 of 2019 is hereby struck out and expunged from the Court’s Record;
iv
The Costs of this Application shall abide the cause.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/84/eng@2019-12-17
Application 19 of 2019,Muia & another v Kababu (Application 19 of 2019) [2019] KESC 87 (KLR) (17 December 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",17 December 2019,2019.0,Nairobi,Civil,Muia & another v Kababu,[2019] KESC 87 (KLR)               ,,"Upon perusing the Notice of Motion Application by the Applicants dated 21st June 2019, brought under Article 1634 b of the Constitution of Kenya, Section 3 e of the Supreme Court Act and Rules 32 & 5, 31, 33 and 53 of the Supreme Court Rules 2012, seeking an extension of time, to file a Notice of Appeal out of time against the Judgment and Orders of 27th May 2016, by the Court of Appeal in Civil Appeal No. 10 of 2017; and
2
Upon reading the Applicants’ grounds in support of the Application and the Supporting Affidavit sworn on 21st June 2019, by Lither Peter Muia, wherein, the Applicants aver that, the delay in filling the Notice of Appeal was occasioned by their former advocates’ Messers Nzilani Muteti failure to file the same and commence Certification Proceedings at the Court of Appeal, notwithstanding instructions by the Applicants to do so.
3
Upon considering the Applicants’ written submissions dated 18th July 2019, and filed on 19th July 2019, wherein the Applicants restate the grounds and the averments in support of their Application; and further considering the Applicants’ argument to the effect that the delay in filing the Notice of Appeal is solely attributable to their advocates whose dereliction of duty ought not to be visited Upon them; and
4
Upon reading the Respondent’s Grounds of Objection dated 1st July 2019, and Replying Affidavit sworn on even date, in which she opposes the Application, arguing;
i
That the same is incompetent, as it offends the requirements of Rule 241 of this Court’s Rules on Certification;
ii
That the delay of one and half years, since the Court of Appeal rendered its decision, is not only inordinate but also unexplained; and as such, the Court ought not to exercise its discretion in favour of the Applicants; and
5
","Upon considering the Respondent’s written submissions dated 29th July 2019 and filed on 30th July 2019 wherein it is argued that the shifting of the blame for the delay by the Applicants to their advocates is not reason enough to warrant this Court’s exercise of discretion in their favour, as there is no evidence on record, of the purported instructions; and further, that as the Application for extension of time, is intended to pave way for the commencement of Certification Proceedings in the Court of Appeal, the same should have been filed in the Appellate Court;
6
We Find as follows:
a
While we recognize the principle that the mistakes of an advocate, ought not to be visited Upon his client, there is no evidence on record, to show that such instructions, as had been given by the Applicants to their advocates to file a Notice of Appeal were not acted Upon by the latter. Nor is there any communication on record, to back up the claim by the Applicants, to the effect that, their advocates had all along misled them into believing that, Certification Proceedings had been commenced at the Court of Appeal.
b
It is clear to us that the Application for extension of time, is intended to pave the way for the commencement of Certification Proceedings in the Court of Appeal. That being the case, the appropriate forum for determining such an application, is the Appellate Court.
7
Having considered the Application and the Affidavit in support filed in support thereof, and the Grounds of Objection and the Replying Affidavit, in opposition thereto, as well as the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following Orders under Section 232b of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;
Orders
i
The Application dated June 21, 2019 and filed on June 24, 2019 is hereby dismissed.
ii
The applicants shall bear the costs of this Application.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/87/eng@2019-12-17
Application 20 of 2019,Mwagiru & 2 others v Attorney General & 3 others (Application 20 of 2019) [2019] KESC 86 (KLR) (17 December 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",17 December 2019,2019.0,Nairobi,Civil,Mwagiru & 2 others v Attorney General & 3 others,[2019] KESC 86 (KLR)               ,,"Upon perusing the Notice of Motion Application dated July 9, 2019, and filed on even date, for extension of time to file an appeal and record of appeal out of time, against the Judgment and Orders of the Court of Appeal in Civil Appeal No. 349 of 2013 delivered on 10th May, 2019, brought under the Provisions of Article 163 4 of the Constitution, Sections 212, 241 of the Supreme Court Act and Rules 21, 23, 26 and 53 of the Supreme Court Rules, 2012; and
2.
Upon reading the Applicants’ grounds in support and the Supporting Affidavit, sworn by Rosemary Wanja Mwagiru on 28th September 2018, wherein it is averred, that the delay in filing the appeal and record of appeal in time, was occasioned by the unavailability of certified proceeding from the Court of Appeal, and by the fact that, the applicant’s advocate on record, Dr. Gibson Kamau Kuria, was unwell and admitted to Nairobi Hospital between 29th May 2019 and 25th June 2019; and
3.
Upon reading the 2nd and 3rd Respondents’ Notice of Preliminary Objection dated 16th July 2019, challenging this Court’s jurisdiction to issue the orders sought, on grounds that, the intended appeal, is not one involving the interpretation and application of the Constitution, pursuant to Article 163 4 a of the Constitution, and that the Applicants have not sought Certification, under Article 1634 b of the Constitution; and","Upon considering the Applicants’ written submissions, in support of the Motion filed on 9th July 2019, and the written submissions in opposition to the Preliminary Objection, dated 22nd July 2019, wherein they restate the reasons for the delay, and contend that this court has jurisdiction, to hear and determine the Application; that the intended appeal challenges the Court of Appeal’s interpretation and application of Article 1576 and 10 of the Constitution; and
5.
Upon considering the written submissions by the 2nd and 3rd Respondents dated 29th July 2019, in support of the Preliminary Objection, wherein it is contended that this Court lacks jurisdiction, under Article 1634a of the Constitution to hear and determine the intended appeal, as the same does not involve a question of constitutional interpretation and application; that the High Court and the Court of Appeal did not deal with the interpretation or application of Article 157 6 of the Constitution or any other constitutional provision; that Article 1576 of the Constitution or any other constitutional provisions did not form the basis of the judgment of the Appellate Court; that the Applicants therefore, ought to have sought Certification from the Court of Appeal for this Court to assume jurisdiction; and
6.
Upon considering the written submissions by the 4th Respondent, dated 12th September 2019, in support of the Preliminary Objection, in which it agrees in substance with the 2nd and 3rd Respondents that this Court lacks jurisdiction to entertain the application and the intended appeal; and
7.
Having Considered the questions at the core of the Application viz: whether this Court has jurisdiction under Article 163 4 a, to entertain the intended appeal and whether the applicants herein, have made a compelling case for this Court to exercise discretion to grant the orders for enlargement of time. By a unanimous decision of this Bench, pursuant to the provisions of Article 163 4 a, Sections 212 of the Supreme Court Act, 2011 and Rules 21, 23 and 53 of the Supreme Court Rules, 2012, we find as follows:
a.
While the inability by an applicant, to obtain certified copies from the Court of Appeal in good time, would in ordinary circumstances, be reason enough for the extension of time by this Court, such reason, will not suffice in circumstances where, the intended appeal, is premised Upon Article 163 4 a of the Constitution. In such a scenario, the applicant must satisfy the Court, that his intended appeal, is one involving the interpretation and/or application of the Constitution.
b.
A perusal of the intended appeal, and record thereof, annexed by the Applicants, reveals that neither the High Court, nor Court of Appeal, engaged in any exercise of interpretation or application of Article 1576 and 10 of the Constitution. In keeping with this Court’s decision in Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd & Another SC Petition No. 3 of 2012 [2012] eKLR, we find no basis Upon which the Application for extension of time can be sustained. As clearly enunciated in that case, to successfully invoke the provisions of Article 163 4 a of the Constitution, an appellant must be challenging the interpretation or application of the Constitution, which the Court of Appeal used to dispose of the matter in that forum. Such a party, must be faulting the Court of Appeal, on the basis of such interpretation.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/86/eng@2019-12-17
Petition 38 of 2018,Nuri v Kombe & 2 others (Petition 38 of 2018) [2019] KESC 6 (KLR) (Election Petitions) (17 December 2019) (Judgment),Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",17 December 2019,2019.0,Nairobi,Election Petition,Nuri v Kombe & 2 others,[2019] KESC 6 (KLR)               ,,"A. Introduction
1.
The Petition of Appeal before the court is dated October 26, 2018 and lodged on even date. The petitioner seeks to challenge the decision of the Court of Appeal (Ouko, Musinga & Murgor, JJA) sitting in Nairobi, (Election Petition Appeal No 27 of 2018). The Appellate Court in its Judgment of September 21, 2018, dismissed the petitioner’s appeal, and in so doing, while addressing a jurisdictional question, held that it lacked jurisdiction to hear and determine election petition appeals from the High Court, emanating from an election of a Member of a County Assembly (hereinafter, MCA).
B. Background
(i) At the Chief Magistrate’s Court
2.
Following the August 8, 2017 General Elections, the 1st respondent was gazetted as the Amani National Congress Party (2nd respondent herein) nominee to the Tana River County Assembly to fill the gender top up slot. The petitioner was however, aggrieved by the gazettement, contending that, she was the one validly nominated by the party in the gender top up list. Consequently, the petitioner filed a petition in the Chief Magistrate’s Court at Milimani, (Election Petition No 23 of 2017), on September 25, 2017, seeking inter-alia, a declaration that the 1st respondent was not eligible for nomination as MCA, Tana River County Assembly as she was not a registered voter.
3.
In its judgmentdelivered on January 19, 2018, allowing the petition, the Magistrate’s Court found that the 1st respondent was not eligible for nomination as a Member of County Assembly for Tana River County, as she was not a registered voter, and that her nomination as a Member of Tana River County Assembly was invalid, null and void. The Court proceeded to set aside the nomination contained in Gazette Notice No 8380; ordered the 3rd respondent, in not later than 7 days from the date of the Judgment, to gazette the petitioner Hamdia Yaroi Shek Nuri, as among the duly nominated gender top up list members of County Assembly of Tana River County.","E. Analysis
(a) On jurisdiction
19.
The gravamen of the petitioner’s case is that, the Court of Appeal erred, in declining jurisdiction to determine her Appeal, when article 164(3)(a) of the Constitution clearly vests it with jurisdiction to “hear appeals from the High Court”. It is her argument that the Appellate Court placed undue reliance on sections 75(4) and 85 A of the Elections Act, to deny her audience, even in the face of a constitutional provision, which cannot be overridden by a statute. Our understanding of the petitioner’s stance is that, in view of the open-ended language, in article 164(3)(a) of the Constitution, which donates appellate jurisdiction to the Court of Appeal without restrictions, any legislation, the Elections Act included, which purports in any way to limit such jurisdiction, would at best, be of “doubtful constitutional validity” or at worst, “out-rightly unconstitutional”.
20.
Section 75(1A) of the Elections Act provides that “a question as to the validity of the election of a member of a county assembly shall be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice.” Section 75(4) of the said Act, on the other hand, provides that “an Appeal under subsection (1A) shall lie to the High Court on matters of law only…and shall be heard and determined within six months from the date of filing of the appeal.” This section is however silent, as to whether a further appeal lies from the High Court to the Court of Appeal. On its part, Section 85A of the Elections Act provides that “an appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the Office of county governor shall lie to the Court of Appeal on matters of law only and shall be …heard and determined within six months of the filing of the appeal.” Again, no mention is made of any appeal lying to the Court of Appeal in an election petition concerning membership of a county assembly.
21.
It is the petitioner’s contention that the silence in section 75(4) and the non-inclusion in section 85A notwithstanding, a right of appeal still lies to the Court of Appeal from the High Court, in an election petition concerning membership of a county assembly, in view of, the provisions of article 164(3)(a) of the Constitution.
22.
The 1st and 3rd respondents are however of a different view. It is their contention, in agreement with the Court of Appeal, that article 164(3)(a) of the Constitution does not confer a general right of appeal in election disputes. They further argue, that the said article must be read with article 87 of the Constitution, which mandates parliament “to enact legislation to establish mechanisms for the timely settling of electoral disputes. One such legislation, they maintain, is the Elections Act and the regulations made thereunder. There is therefore nothing un-constitutional about sections 75 and 85A of the Elections Act.
(b) Constitutional validity of Sections 75 (4) and 85A of the Elections Act
23.
Any doubts regarding Constitutional validity of section 85A of the Elections Act, to the extent to which it is perceived, as limiting the appellate jurisdiction of the Court of Appeal, contrary to the provisions of article 164(3)(a) of the Constitution, were long dispelled by this Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Supreme Court Petition No 2B of 2014; wherein we affirmed its constitutionality at paragraphs 63-64 thus:
“
By limiting the scope of appeals to the Court of Appeal to matters of law only, section 85A restricts the number, length and cost of petitions and, by so doing, meets Constitutional command in article 87, for timely resolution of electoral disputes.
“Section 85A of the Elections Act is, therefore, neither a legislative accident nor a routine legal prescription. It is a product of a constitutional scheme requiring electoral disputes to be settled in a timely fashion. The section is directed at litigants who may be dissatisfied with the judgment of the High Court in an election petition. To those litigants, it says: ‘Limit your appeals to the Court of Appeal to matters of law only.”
24.
But even more categorical, was this court’s declaration in Fredrick Otieno Outa v Jared Odoyo Okello & 4 others, Supreme Court Petition No 6 of 2014. In submissions reminiscent of those that have been made by the petitioner herein, learned counsel, Mr Issa Mansur, had argued that section 85A was inconsistent with article 163(4)(a) of the Constitution. Counsel took the view that the right to appeal from the High Court to the Court of Appeal, under article 163(4)(a) of the current Constitution cannot be restricted. Counsel urged that, as opposed to the repealed constitution, which conferred appellate jurisdiction pursuant to a specific statute, the current Constitution vests in the Court of Appeal unrestricted powers to consider appeals from the High Court on matters of both law and fact.
25.
In re-affirming the holding in Munya (supra), this court re-stated Constitutionality of section 85A at paragraph 73 thus:
“
This court’s perception of the configuration of the governing electoral law has been clearly signalled in the recent Munya case. From that foundation, we would observe that section 85A manifests Parliament’s intention to regulate the scope of appeals to the Court of Appeal to ‘matters of law only’. We decline, with respect, the 1st respondent’s contention that the provision should be struck out, as an undue limitation on the Court of Appeal’s jurisdiction as conferred by article 164(3)(a) of the Constitution [emphasis added]. We re-affirm our earlier position, that the statutory provision regarding the jurisdiction of the Court of Appeal, and in relation to ‘matters of law only’, is not a limitation to, or a restriction of the Court of Appeal’s jurisdiction under article 164(3)(a). It is our view that the appellate jurisdiction in electoral disputes, is donated not simply by virtue of article 164(3)(a), but also by legislation contemplated under article 105(3) of the Constitution [Emphasis added].”
26.
In view of these clear and unequivocal pronouncements by the Supreme Court, regarding Constitutionality of Section 85A of the Elections Act, the Petitioner’s arguments to the contrary cannot be sustained. However, it can still be assumed that, what the petitioner is questioning in this case, is not the ‘matters of law only’ limb of appellate jurisdiction limitation, but the fact that both sections 85A and 75(4) of the Elections Act, are silent on the question as to whether, election appeals concerning the validity of the election of a member of a county assembly, lie to the Court of Appeal, from the High Court.
27.
In this regard, section 85A only provides for appeals from the High Court to the Court of Appeal in election petitions concerning membership of the National Assembly, Senate, or, the office of countygovernor. Section 75(4) on the other hand, only provides that appeals questioning the validity of the election of a member of county assembly, lie to the High Court from the Magistrate’s Court. The said section makes no provision for a second appeal to the Court of Appeal. Such ‘silence and non-provision’, in the view of the Petitioner, is offensive to the provisions of article 164(3)(a) of the Constitution.
28.
In declining to assume jurisdiction over the Petition at hand, the Court of Appeal took the view that, by remaining silent, as to whether election appeals concerning the validity of the election of a member of county assembly, lie to the Court of Appeal from the High Court, Parliament must have intended, that the High Court, would be the last port of call for such petitions. Such a pre-supposition, reasoned the appellate court, would be in accord with article 87 of the Constitution, which mandates parliament to “enact legislation to establish mechanisms for timely settling of electoral disputes.”
(c) The sui-generis nature of electoral law
29.
This court, in keeping with comparative electoral jurisprudence, has in the past emphasized the fact that, election disputes, though not exempted from constitutional principles and the general law of the land, usually generate a ‘unique law’ of their own. This type of legal regime, while not necessarily “special”, does create normative and procedural divergences that are dictated by the “political nature” of these disputes. Towards this end, the 2010 Constitution has gone to great lengths, in creating a distinct normative and institutional architecture, for the resolution of electoral disputes. In a number of instances, the Constitution has given parliament the latitude, to enact legislation to give full effect to its declared principles, and general provisions regarding elections. In Fred Outa (supra), this development was thus illuminated at paragraph 59:
“
the Constitution of 2010 may, indeed, be seen as the foundation of ‘a regime of electoral law’, which, even though sharing common principles of justice and fairness with normal civil and criminal jurisdictions, bears a new ingredient that is underlined by objects of democracy, good governance, and efficiency of public institutions. This is the context in which article 105 set a foot the process of enacting new electoral legislation, and the making of attendant rules and regulations. This is the context in which we would perceive the specific terms of the Elections Act- in a broad sense, a context of compatibility, rather than of discord.”
30.
Guided by the foregoing philosophical rationalization, it is not difficult to critically advert to such argumentation, as would question Constitutional validity of sections 85A and 75(4) of the Elections Act. In this context, the starting point, in our view, must be article 87 of the Constitution, pursuant to which parliament is majestically charged with the duty of enacting legislation to “establish mechanisms for the timely settling of electoral disputes.” The fact that the Constitution lays a fundamental premium on the need for the expeditious disposal of electoral disputes, is self-evident in the plain language of article 87. The non-negotiability of timelines for the settlement of electoral disputes, is a principle that has repeatedly been decreed by this Court in a long line of cases (Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 Others Supreme Court Petition No 2B of 2014 [2014] eKLR; Lemanken Aramat v Harun Meitamei Lempaka & 2 Others Supreme Court Petition No 5 of 2014 [2014] eKLR; Evans Odhiambo Kidero & 4 Others v Ferdinand Ndungu Waititu & 4 Others Supreme Court Petition No 18 of 2014 as consolidated with Petition No 20 of 2014 [2014] eKLR).
31.
It has to be noted that, what article 87 requires parliament to do, is not limited to the enactment of legislation setting “timelines” for the disposition of electoral disputes. The article talks of “mechanisms for the timely” settlement of electoral disputes. As such, the setting of timelines in legislation is just but one of the mechanisms, for the timely settlement of electoral disputes. Other mechanisms, are discernible in the other provisions of the Elections Act, touching upon such other matters, as the form of petitions, manner of service of petitions, the scope of appeals, and in our view, the level of appeals among others.
32.
As long as these “mechanisms” are not inconsistent with, or violative of the provisions of the Constitution, and as long as they are in accord with article 87 of the Constitution, their validity cannot be questioned. In this context, one of the mechanisms for the timely settlement of electoral disputes is by limiting, not the right of appeal, but the scope, and level of appeal, in election petitions. In this regard, section 75(4) of the Elections Act, does not limit the right of appeal emanating from an election petition, concerning the validity of the election of a member of a county assembly. The section in fact preserves the initial right of appeal to the High Court, but falls short of extending it to a second-tier level. To argue that, notwithstanding the non-provision for a second appeal in section 75(4) of the Elections Act, such right of appeal nonetheless subsists under article 164(4)(3)(a) of the Constitution, would be subversive of article 87 of the Constitution. It is worth repeating that the Constitution cannot subvert itself. Indeed, what may appear as a limitation of the jurisdictional reach of article 164(3)(a), of the Constitution, is borne out of article 87 of the same Constitution. The issue may very well be viewed differently, if what is in question, is a purely statutory limitation of appellate jurisdiction. It all depends on the nature and uniqueness of each case. This court has held that, even at the level of the Supreme Court, not all election petition appeals, lie from the Court of Appeal to this court. An intending appellant must satisfy the court, that such an appeal meets the threshold delineated in article 163(4)(a) and (b) of the Constitution.
F. Determination
33.
The foregoing analysis leads us to the conclusion, in agreement with the Court of Appeal, that in the absence of an express statutory provision, no second appeal lies to the Court of Appeal, from the High Court, emanating from an election petition concerning the validity of the election of a member of county assembly. As this determination conclusively disposes of the appeal before us, we shall not consider the second issue.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/6/eng@2019-12-17
Petition (Application) 5 of 2018,Waiguru & another v Karua & 2 others (Petition (Application) 5 of 2018) [2019] KESC 89 (KLR) (17 December 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",17 December 2019,2019.0,Nairobi,Election Petition,Waiguru & another v Karua & 2 others,[2019] KESC 89 (KLR)               ,,"A. Introduction
1
Before the Court is an Application by way of Notice of Motion dated 5th September, 2018 and filed by the 1st Respondent Applicant herein on 6th September, 2018 in Petition No 5 of 2018. The Application is brought under Articles 50 and 159 of the Constitution, Section 3, 14 & 24 Supreme Court Act and Rules 3 of the Supreme Court Rules, 2012 and all other applicable provisions of the law.
2
The application seeks to set aside the orders of the Deputy Registrar of 6th July, 2018 and the subsequent order by a one-judge Bench of this Court Justice Isaac Lenaola, SCJ delivered in Petition No. 5 of 2018 Anne Waiguru & Another v. Martha Wangari Karua & Others, which by consent, withdrew the appellants’ Petition. The Application also seeks directions from this Court on the Notice of Preliminary Objection by the 1st Respondent dated 25th June 2018.
B. Background
3
The Appellants first moved this Court via Petition No. 5 of 2018, dated 29th March 2018 against the Court of Appeal Judgment in Nyeri Election Appeal No. 1 of 2017 delivered on 2nd March, 2018. The Appellate Court had allowed the 1st Respondent’s appeal against a High Court judgment, which had struck out her Petition challenging the election of the 1st Appellant. The Court of Appeal had remitted the Petition to the High Court and ordered the latter to hear it de novo.
4
Aggrieved by the Court of Appeal’s judgment and consequent orders, the Appellants moved to this Court via Petition No. 5 of 2018. The Appellants also sought an Order Staying the judgment of the Appellate Court pending the determination of their Petition. In support of their application for Stay, the Appellants argued that the High lacked jurisdiction to hear the Petition de novo in view of the express provisions of Section 75 2 of the Election Act as read with Article 87 1 of the Constitution. The 1st Respondent raised a Preliminary Objection to the Petition arguing that the Appellants had lost interest in prosecuting the Petition, having failed to comply with the directions of the Deputy Registrar. The 1st Respondent also argued that the Appeal would be in vain as the dispute had already been remitted to High Court for hearing.
5
In a Ruling delivered on 28th March, 2018 and on the basis of the reasons stated therein, this Court dismissed the Application for Stay with no orders as to costs as the same were to abide the Cause.
6
As per the Record, the Parties to this Application attended court for mentions to determine compliance, before the Hon Deputy Registrar of this Court on 30th April 2018, 4th July 2018, and 6th July, 2018. On 6th July 2018, the Parties ‘by Consent’ agreed to withdraw the Petition of Appeal No. 5 of 2018. The Consent to withdraw was recorded by the Deputy Registrar and subsequently adopted as this Court’s Judgment by Justice Isaac Lenaola SCJ.
7
It is this Consent of withdrawal as adopted by this Court that the 1st Respondent Applicant herein now seeks to set aside.","C. Issues For Determination
11
Three issues arise for determination, namely:
i
Whether a case has been made to justify the setting aside of the Orders of 6th July, 2018,
ii
What is the effect if any of the Notice of Preliminary Objection?
ii
What provision should be made for Costs?
D. Determination
Whether a case has been made to justify the setting aside of the Consent Judgment
12
At the outset, we take cognizance of the fact that Mr Kathungu for the appellants has unequivocally admitted that he had no instructions to hold brief for Mr Gitobu Imanyara, counsel for the 1st Respondent the Applicant herein. Mr. Kathangu states that he indeed informed the Deputy Registrar that he was on record for the 1st Respondent but states that, this statement was in error. The 1st Respondent on the other hand contends that the consent judgment was procured by fraudulent misrepresentation perpetrated by counsel for the appellants, and condoned by the latter.
13
In view of the admission by counsel for the Appellants to the effect that, he had no instructions to hold brief for Mr. Imanyara, and in view of his averment that his statement was occasioned by human error, it is clear to us that there could not have been any consent without the participation and acknowledgment of the 1st Respondent or her Advocate. Had these facts been brought to the attention of the learned Judge Lenaola SCJ, we have no doubt that he would not have adopted the ‘Non-Consent’ as a judgment of the Court. Had counsel for the 1st Respondent attended Court on 6th July 2018, he would definitely have objected to the said consent. We are not however in a position to determine whether the consent was procured fraudulently. There is not much on record to aid us in arriving at such a determination with the potential, of very grave consequences for counsel. In the circumstances, we have no difficulty in setting aside the consent judgment as prayed by the 1st Respondent.
What is the effect of the Notice of Preliminary Objection?
14
By a Ruling of this Court, the application for stay of the Court of Appeal’s judgment was dismissed. As a consequence of the dismissal, the matter was heard afresh by the High Court as ordered by the Appellate Court. The Appellants never prosecuted their Petition of Appeal in the Supreme Court, but instead went through the motions of litigation occasioned by the Court of Appeal’s judgment. They would later urge their case before this Court, but this time, not as Appellants but Respondents. The rest of what transpired is on record. The Preliminary Objection was never determined in view of the fact that, it had been triggered by Petition of Appeal No. 5, which itself as already noted, was never prosecuted. In reality therefore, Petition No. 5 of 2018 was abandoned thus rendering the Preliminary Objection spent.
What Orders are to be made with regard to costs?
15
It is a trite principle that Costs follow the event. However, this Court has on a number of occasions had to exercise its discretion so as not to be rigidly fettered by this principle. In this matter, the consent judgment which we have concluded must be set aside, was occasioned by the acts and omissions of Counsel for the Appellants. Although the said acts and omissions may not have been fraudulent, they are inexcusable. As a consequence, the Appellants must be condemned in Costs.
16.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/89/eng@2019-12-17
Petition 12 of 2016,"Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch (Petition 12 of 2016) [2019] KESC 11 (KLR) (6 December 2019) (Judgment) (with dissent - DK Maraga, CJ & P)",Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",6 December 2019,2019.0,Nairobi,Civil,Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch,[2019] KESC 11 (KLR)               ,,"A. Introduction
1.
The present appeal arises from a Ruling of the Court of Appeal (Karanja, M’inoti, Mwera, Mohamed and Musinga JJ A) which had dismissed an appeal against the decision of the High Court in Nyutu Agrovet Ltd v Airtel Network Kenya Ltd Nairobi HCCC No 350 of 2009. The Court of Appeal in its Ruling had found that there is no right of appeal to that court following a decision made under section 35 of the Arbitration Act 1995 (the Act), and so struck out the entire appeal to it. Certification of leave to appeal to this court was thereafter granted in terms of article 163(4)(b) of the Constitution. A Petition of appeal dated July 15, 2016 was thereafter filed seeking to overturn the decision of the Court of Appeal.
B. Background
2.
This matter concerns the setting aside by the High Court (Kimondo J) of an arbitration award granted in favour of the respondent, Airtel Networks Kenya Ltd (Airtel), following a commercial dispute between it and the petitioner, Nyutu Agrovet Limited (Nyutu). The parties had entered into a distribution agreement on December 20, 2007in terms of which Nyutu was contracted to distribute various telephone handsets on behalf of Airtel. The dispute arose when an agent of Nyutu, one George Chunga, placed orders for Airtel’s products totalling Kshs 11 million for which Airtel made payment. Upon delivery, Airtel realised that the orders were made fraudulently. Nyutu had also failed to pay the said amount and the agreement between the parties was thus terminated and a dispute in that regard arose.
3.
By agreement, on August 24, 2009, the parties appointed Mr Fred ON Ojiambo, SC, as the Sole Arbitrator in their dispute. It was expressly stated in the letter of appointment of the Arbitrator that the Arbitrator was to adjudicate on “any dispute or claim arising out of or relating to the contract and/or alleged breach thereof.” Upon conclusion of the arbitration hearing, the Arbitrator, on February 17, 2011, delivered an award of Kshs 541,005,922.81 in favour of Nyutu; the bulk of which was awarded under the heading “tort of negligence”. It is this award that Airtel sought to set aside in the High Court and forms the basis of the subsequent appeals.
4.
At the High Court, Airtel had filed an application under section 35 of the Act seeking to set aside the award in its entirety Kimondo J, in Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd (supra), had to decide inter alia whether the arbitral award had dealt with a dispute not contemplated by the parties; whether it had dealt with a dispute outside the terms of reference to arbitration and whether the said award was in conflict with public policy. The entire arbitral award was then set aside purely on the ground that the award contained decisions on matters outside the distributorship agreement, the terms of reference to arbitration or the contemplation of the parties and for other reasons and deliberations contained in the learned Judge’s Ruling.
5.
Immediately after delivery of the High Court decision, Nyutu orally sought leave to appeal to the Court of Appeal, which application was opposed by Airtel on the basis that no right of appeal existed in relation to a decision made under Section 35 of the Act. Despite the objection, the High Court granted Nyutu leave to appeal, noting that “it will be a matter for the appellate court to determine whether the journey was a false start.”
6
Nyutu thereafter filed an appeal on April 2, 2012 to which Airtel responded with an application dated May 3, 2012 seeking to strike out the record of appeal. A five judge bench was constituted to hear the application in Nyutu Agrovet Limited v Airtel Networks Kenya Limited Civil Appeal No 61 of 2012. In a ruling delivered on March 6, 2015, the Court of Appeal allowed the application. It unanimously held that the decision by the High Court made under section 35 of the Act was final and no appeal lay to the Court of Appeal; thus striking out the appeal and awarding costs to Airtel.
7.
Aggrieved by the finding of the Court of Appeal, Nyutu filed the present appeal. The Petition was later certified under article 163(4)(b) of the Constitution as raising a matter of general public importance. The question for determination as framed by the Court was whether there is any right of appeal to the Court of Appeal upon a determination by the High Court under section 35 of the Act. Nyutu in that regard seeks the following orders from this Court:
(a)
The appeal be allowed with costs.
(b)
Return a finding of law that a party has a right of appeal from the High Court to the Court of Appeal on a ruling/decision arising out of an application made under the provisions of section 35 of the Arbitration Act.
(c)
Setting aside the order of the Court of Appeal delivered on the March 6, 2015 in its entirety and substituting it with (i) an order dismissing the notice of motion applicationdated May 3, 2012 with costs to the petitioner and (ii) an order reinstating Civil Appeal No 61 of 2012 Nyutu Agrovet Limited v Airtel Networks Kenya Limited.","E. Analysis
(a) Whether sections 10 and 35 of the Act contravene a party’s right to access justice under articles 48, 50(1) and 164(3) of the Constitution?
30.
Nyutu urges that article 164(3) of the Constitution gives the Court of Appeal unfettered powers to assume jurisdiction on all appeals arising from the decisions of the High Court. Accordingly, that any statute which deprives the Court of Appeal jurisdiction to hear appeals from the High Court, offends article 164(3) and is unconstitutional. Nyutu further submits that, unlike the jurisdiction of the Supreme Court as provided for, under article 163(4), no constraints or conditions are placed on the Court of Appeal in hearing appeals from the High Court. It is thus urged that placing restrictions on a litigant who seeks to appeal to the Court of Appeal fetters the right of access to justice under article 48 of the Constitution and by extension, article 50(1).
31.
In response to Nyutu’s case in this regard, Airtel urges that a right of appeal must be expressly provided for either in the Constitution or a statute. Thus, it is also urged that the Court of Appeal’s jurisdiction to hear and determine appeals from the High Court under article 164(3) does not entitle every party to file an appeal where such a right is absent. That further, the restrictions placed in denying a right of appeal in arbitration matters are reasonable and justifiable in an open and democratic society. Airtel concludes by relying on the decision of Jasbir Singh Rai and 2 others v Tarlochan Singh Rai and 4 others 2007 eKLR to urge the position that all litigation must at some point come to an end and the present dispute thus ended at the High Court.
32.
Certainly, these submissions raise a critical question on whether there exists a right of appeal under article 164(3) of the Constitution and if in the affirmative, whether any limitation to such a right hinders the right of access to justice. As properly submitted, article 164(3) provides the jurisdiction of the Court of Appeal in the following words:
The Court of Appeal has Jurisdiction to hear appeals from?
(a)
The High Court; and
(b)
Any other court or tribunal as prescribed by an Act of Parliament” Emphasis added
33.
What exactly does the term “jurisdiction” mean? In Republic v Karisa Chengo & 2 others SC Petition No 5 of 2015; 2017 eKLR, we defined jurisdiction as the “the Court’s power to entertain, hear and determine a dispute before it.” Also, “the sphere of the courts operations.” Is jurisdiction therefore synonymous with a right of appeal? In other words, does article 164(3) grant a litigant a right of appeal to the Court of Appeal? Nyutu urges that article 164(3) indeed grants such a right of appeal. We disagree. As urged by Airtel, this provision does not confer a right of appeal to any litigant. It only particularises the confines of the powers of the Court of Appeal by delimiting the extent to which a litigant can approach it. In this case, the appellate court only has powers to hear matters arising from the High Court or any other defined Court or Tribunal. There is thus no direct access to the Court of Appeal by all and sundry. As such, article 164(3) defines the extent of the powers of the Court of Appeal but does not grant a litigant an unfettered access to the Court of Appeal.
34.
With regard to a right of appeal, our position is that such right can either be conferred by the Constitution or a Statute. For example, under article 50(2)(q), a person who has been convicted of a criminal offence has a right to appeal or apply for review to a higher court as prescribed by the law. Further, with regard to disqualification from being a Member of Parliament or County Assembly (articles 99(3) and 199(3), respectively), a person is not disqualified until all possibilities of appeal or review of the relevant sentence or decision have been exhausted. Our statutes have also provided for circumstances when an appeal may be specifically preferred to the Court of Appeal or any other court. For example, section 39(3) of the Arbitration Act provides circumstances when an appeal may lie to the Court of Appeal.
35.
Even more crisply, the Appellate Jurisdiction Act, cap 9, captures our position that a right of appeal is not automatic but rather is a creation of the law. Section 3(1) thereof provides that:
The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court and any other Court or Tribunal prescribed by an Act of Parliament in cases in which an appeal lies to the Court of Appeal under law.” Emphasis added.
36.
By this provision therefore, jurisdiction and the right of appeal are clearly delineated to the extent that jurisdiction is only excised where the right of appeal exists. We also note that this same issue was canvassed before the Court of Appeal in this matter and Mwera JA had this to say on it:
I do not agree that article 164(3) of the Constitution, section 3(1) of the Appellate Jurisdiction Act and even section 75 of the Civil Procedure Act, giving this Court jurisdiction to hear appeals from the High Court, should be read to mean that these provisions of law also confer the right of appeal on the litigants. … This Court has jurisdiction to hear any matters coming on appeal from the High Court and any other court or tribunal prescribed by law. But a party who desires his appeal to be heard here has a duty to demonstrate under what law that right to be heard is conferred, or if not, show that leave has been granted to lodge the appeal before us. However, be it appreciated that such leave does not constitute the right to appeal (sic). The right must precede leave.”
37.
We completely agree with the above reasoning by the Court of Appeal but we also note that Nyutu has urged the point that limiting a party’s right to appeal to the Court of Appeal fetters the right of access to justice under article 48 and fair hearing under article 50(1) of the Constitution. While we recognise that access to justice is an important principle in the administration of justice and is wide and long in its many dimensions, in the case of Dry Associates Limited v Capital Markets Authority & Another Interested Party Crown Berger (K) Ltd High Court Constitutional Petition No 328 of 2011 2012 eKLR, Majanja J succinctly identified some of the components of access to justice as follows:
[110] “Access to justice is a broad concept that defies easy definition. It includes the enshrinement of rights in the law; awareness of and understanding of the law; easy availability of information pertinent to one’s rights; equal right to the protection of those rights by the law enforcement agencies; easy access to the justice system particularly the formal adjudicatory processes; availability of physical legal infrastructure; affordability of legal services; provision of a conducive environment within the judicial system; expeditious disposal of cases and enforcement of judicial decisions without delay.”
38.
Further, in Kenya Bus Service Ltd & another v Minister for Transport & 2 others 2012 eKLR, it was emphasized that “the right of access to justice protected by the Constitution involves the right of ordinary citizens being able to access remedies and relief from the courts.”
39.
This courtalso elaborated on the confines of access to justice in the case of Francis Karioko Muruatetu & another v Republic SC Petition No 15 of 2015; 2017 eKLR, where we stated:
“
[57] Thus, with regards to access to justice and fair hearing, the State through the courts, ensures that all persons are able to ventilate their disputes. Access to justice includes the right to a fair trial. If a trial is unfair, one cannot be said to have accessed justice. In this respect, when a murder convict's sentence cannot be reviewed by a higher court, he is denied access to justice which cannot be justified in light of article 48 of the Constitution.”
40.
Nyutu has in the above context submitted that denial of a right to appeal fetters on the right to access justice. While we appreciate that unhindered access to courts is one of the key components of access to justice, we do not think that statutory limitations on appeals necessarily infringe on that right. Each case must be evaluated on its own circumstances. That is why even where a right of appeal exists, depending on the circumstances of the case, Courts may still exercise their discretion by refusing to assume jurisdiction. In this case, Nyutu started on the wrong footing by assuming that there exists an unhindered right of appeal. We have shown why that is not so. Indeed, this matter was first heard by a Sole Arbitrator and later by the High Court in exercise of its jurisdiction under Section 35. The conduct of proceedings therein has not been impugned. We have also not been informed of any difficulties experienced by either of the parties in pursuing justice. Nyutu’s claim of denial of a right to access justice solely rests on its desire to prefer a further appeal which matter is the fulcrum of the present appeal. In the circumstances, we do not find a proper basis for finding that there is denial of access to justice and thus we reject the plea to declare sections 10 and 35 of the Arbitration Act unconstitutional. In stating so, we shall only add that the issue of unconstitutionality of the two sections was raised for the first time in this court, an approach we have consistently frowned upon.
",,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/11/eng@2019-12-06
Petition 2 of 2017,"Synergy Industrial Credit Limited v Cape Holdings Limited (Petition 2 of 2017) [2019] KESC 12 (KLR) (6 December 2019) (Judgment) (with dissent - DK Maraga, CJ & P)",Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",6 December 2019,2019.0,Nairobi,Civil,Synergy Industrial Credit Limited v Cape Holdings Limited,[2019] KESC 12 (KLR)               ,,"Brief facts
The parties before the court entered into a partly oral and partly written sale agreement approximately 10 years, whereby the petitioner offered to purchase office blocks and parking spaces from the respondent. Later on, a dispute arose and according to the terms of the agreement, a sole arbitrator was to be appointed to resolve it. By the time the dispute arose, the petitioner had disbursed a significant amount of money to the respondent, even though the office blocks and parking spaces were still undergoing construction.
By an award dated January 30, 2015, the arbitrator ordered the respondent to pay the petitioner a sum of Kshs 1,666,118,183.00 being the amount of money advanced to the respondent, accruing interest, loss of income opportunity, exchange fluctuations and costs.  Dissatisfied by the award, the respondent filed an application at the High Court under section 35(1), 5(2)(a)(iv) and (b)(i) and (ii) of the Arbitration Act (the Act) seeking to set aside the award. The petitioner on its part filed an application at the High Court seeking to enforce the award.
Upon considering the matter, the High Court by a ruling found that all the issues addressed by the arbitrator fell outside the scope of the reference of the arbitrator and so it set aside the award in its entirety and dismissed the petitioner’s application for the enforcement of the award. Dissatisfied by the High Court decision, the petitioner filed an appeal at the Court of Appeal. In response, the respondent sought to strike out the petitioner’s notice of appeal as well as the record of appeal on the grounds that there was no right of appeal from a decision of the High Court arising under sections 10, 35, 36 and 37 of the Act.
The Court of Appeal upheld the respondent’s application and struck out the notice of appeal and the record of appeal. It specifically held that save for what was provided in section 39 of the Act, there was no right of appeal from decisions of the High Court made pursuant to section 35 of the Act. Aggrieved by that finding, the petitioner filed the instant petition of appeal.
Issues
Whether there was a right of appeal against a High Court decision for an application for the setting aside of an arbitral award under section 35 of the Arbitration Act
Whether article 164(3) of the Constitution on the jurisdiction of the Court of Appeal to hear appeals from the High Court and any other court or tribunal provided for a right of appeal applicable to decisions of the High Court made under section 35 of the Arbitration Act.
What was the scope of the principle of finality in arbitration?","E. Analysis
(i) Whether there is a right of appeal to the Court of Appeal following a decision by the High Court under section 35 of the Arbitration Act?
30.
At the heart of this dispute is the question of the proper relationship between arbitration and the Courts. The parties herein thus seek an interpretation of section 35 of the Arbitration Act which expressly gives an aggrieved party the opportunity to approach the High Court to set aside an arbitral award. The contention before us is whether such a decision by the High Court is subject to the appellate jurisdiction of the Court of Appeal. In this case, the High Court set aside the arbitral award in its entirety primarily on grounds that the Arbitrator had acted in excess of his jurisdiction and that part of the award was against public policy. When the Petitioner sought to appeal that decision, the Court of Appeal struck out the Notice and Record of Appeal on the grounds that it had no jurisdiction on a matter arising from a decision of the High Court made under section 35 of the Arbitration Act.
31.
With the above background in mind, the Petitioner urges and admits that section 35 is silent on whether a decision of the High Court can be appealed to the Court of Appeal. However, the petitioner also takes the position that in the absence of an express bar, such decisions should be appealable to the Court of Appeal because article 164(3) of the Constitution confers upon the Court of Appeal unlimited jurisdiction to hear all appeals from the High Court. It was further urged that where the Arbitration Act required a certain decision of the High Court to be final, it expressly stated so which language is not existent in section 35 aforesaid. Thus, the petitioner faults the Court of Appeal for finding that a right of appeal must always originate from a specific statutory provision. Such a finding, it was urged, is against the spirit and tenor of the Constitution and amounts to a denial of the right to access justice.
32.
the respondent on its part, was emphatic that the Court of Appeal lacks jurisdiction to intervene in decisions arising from section 35 of the Arbitration Act. In that regard, it was urged that where the arbitration law requires the Court of Appeal’s intervention, it explicitly states so, a position not obtaining in section 35. In urging so, the respondent referred to section 39 of the Arbitration Act which specifically provides that the Court of Appeal may determine appeals arising from a High Court decision made under that section. It was also urged that the nature of arbitration law is to minimize courts’ intervention in the settlement of commercial disputes where parties have willingly chosen to settle such disputes through arbitration.
33.
Further, citing the Hansard report of the National Assembly at the debate on the Arbitration Act, 1995 it was submitted that the purpose of the Arbitration Act was to provide only a limited avenue for court’s intervention. It was also urged that even the UNCITRAL Model Law which inspired the enactment of the Act discourages Court’s intervention. Thus, in accordance with the Constitution, Kenya is bound by all international laws which it has ratified, and as such the UNCITRAL Model Law is now part of the Laws of Kenya and ought to be interpreted as such.
34.
With regard to the petitioner’s contention that there is an unlimited right of appeal under article 164(3), it was submitted that the said provision must be read together with article 159(2)(c) which requires all courts and Tribunals to promote alternative dispute resolution mechanisms such as arbitration. As such, it was urged that arbitration is a constitutionally recognised mechanism for solving disputes.
35.
In the above context, we shall now proceed to interrogate the jurisprudence of the Court of Appeal on the subject at hand.
a. Relevant Decisions of the Court of Appeal
36.
We are aware that there are several conflicting decisions emanating from different benches of the Court of Appeal on this issue. Hence, for a proper determination of the same, it is important to analyse some of those decisions in order to have a proper understanding of the Court of Appeal’s reasoning in each of those cases. To begin with, in the present case, the Court of Appeal held that save for what is provided in section 39, there is no right of appeal from decisions of the High Court made pursuant to the Arbitration Act and specifically section 35 thereof. In holding so, it reasoned that if Parliament had intended to confer the Court of Appeal with jurisdiction to entertain appeals under section 35, it would have specifically stated so.
37.
Similarly, in the case of Anne Mumbi Hinga v Victoria Njoki Gathara Civil Appeal No 8 of 2009; [2009] eKLR, the Court of Appeal held that appeals would only lie to the Court of Appeal in accordance with the circumstances set out in section 39. The same position was taken by the Appellate Court in the case of Micro-House Technologies Limited v Co-operative College of Kenya Civil Appeal No 228 of 2014; [2017] eKLR.
38.
Furthermore, in Nyutu Agrovet Limited v Airtel Networks Limited Civil Appeal (Application) No 61 of 2012; [2015] eKLR, the Court of Appeal held that it had no jurisdiction to entertain any appeal arising from section 35 aforesaid. In holding so, Mwera JA expressed himself thus:
“
My view is that the principle on which arbitration is founded, namely that the parties agree on their own, to take disputes between or among them from the courts, for determination by a body put forth by themselves, and adding to all that as in this case, that the arbitrator’s award shall be final, it can be taken that as long as the given award subsists it is theirs. But in the event it is set aside as was the case here, that decision of the High Court final remains their own (sic). None of the parties can take steps to go on appeal against the setting aside ruling. It is final and the parties who so agreed must live with it unless, of course, they agree to go for fresh arbitration. The High Court decision is final and must be considered and respected to be so because the parties voluntarily chose it to be so. They put that in their agreement. They desired limited participation by the courts in their affairs and that has been achieved.”
39.
He went on to state:
“
I do not agree that article 164(3) of the Constitution, section 3(1) of the Appellate Jurisdiction Act and even section 75 of the Civil Procedure Act, giving this court jurisdiction to hear appeals from the High Court, should be read to mean that these provisions of law also confer the right of appeal on the litigants. … this court has jurisdiction to hear any matters coming on appeal from the High Court and any other court or tribunal prescribed by law. But a party who desires his appeal to be heard here has a duty to demonstrate under what law that right to be heard is conferred, or if not, show that leave has been granted to lodge the appeal before us. However, be it appreciated that such leave does not constitute the right to appeal (sic). The right must precede leave.”
40.
Unlike in the above cases, in the earlier case of Kenya Shell Limited v Kobil Petroleum Limited, Civil Application No 57 of 2006 (unreported), (Kenya Shell) Omolo JA had been of a different view. In holding that the Court of Appeal had jurisdiction, he noted thus:
“
[T]he provisions of section 35 of the Arbitration Act have not taken away the jurisdiction of either the High Court or the Court of Appeal to grant leave to appeal from a decision of the High Court made under that section. If that was the intention, there was nothing to stop Parliament from specifically providing in section 35 that there shall be no appeal from a decision made by the High Court under that section.”
41.
In the same case, Onyango Otieno JA while dissenting, expressed himself as follows:
“
The use of the words “ Notwithstanding sections 10 and 35” to me means that this provision in section 39(3) is meant by the legislature to provide an exception to the provision of section 10 that no Court should interfere in matters governed by the Act and as to section 35 the phrase is used to indicate that the decision of the superior court on application for setting aside can only be challenged in the Court of Appeal by way of an appeal if conditions in section 39(3) are satisfied…Thus in my view, other than as provided under section 39(3), this court would have no direct jurisdiction donated by the Arbitration Act No 4 of 1995 to entertain an appeal from an award given under the Act.” [Emphasis added.]
42.
Just like the majority in Kenya Shell (supra), in the case of DHL Excel Supply Chain Kenya Limited v Tilton Investments Limited Civil Application No NAI 302 of 2015; [2017] eKLR, the Court of Appeal held that it had jurisdiction to entertain an appeal under section 35. In that case, the applicant had made an application to the Court of Appeal under section 39(3)(b) of the Arbitration Act seeking to appeal a decision of the High Court made under section 35. the respondent on its part contended that no appeal lay against decisions made under section 35 and in resolving the controversy at paragraph 24, the Court of Appeal rendered itself thus:
“
In our view, the fact that section 35 of the Act is silent on whether such a decision is appealable to this court by itself does not bar the right of appeal. The section grants the High Court jurisdiction to intervene in arbitral proceedings wherein it is invoked. It follows therefore that the decision thereunder is appealable to this court by virtue of the Constitution.”
43.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/12/eng@2019-12-06
Petition 4 of 2019,Law Society of Kenya v Attorney General & another (Petition 4 of 2019) [2019] KESC 16 (KLR) (3 December 2019) (Judgment),Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",3 December 2019,2019.0,Nairobi,Civil,Law Society of Kenya v Attorney General & another,[2019] KESC 16 (KLR)               ,,"A. Introduction
1.
This Petition of appeal is dated February 1, 2019 and was filed on February 4, 2019. The petitioners in this matter, the Law Society of Kenya (LSK), have appealed under article 163(4)(a) of the Constitution, challenging the decision of the Court of Appeal (Waki, Makhandia & Ouko JJA) dated November 17, 2017 in Civil Appeal No 133 of 2011. The Court of Appeal in its Judgment, had reversed the order of the High Court that had declared sections 4; 7(1) and (2); 10(4); 16; 21(1); 23(1); 25(1) and (3); 52(1) and (2) and 58(2) of the Work Injuries Benefit Act 2007 (the Act) null and void, as they contravened certain sections of the former Constitution.
B.Background
2.
Pursuant to Gazette Notice No 3204 of May 16, 2001, the Attorney General (AG) appointed a seven member Task Force to examine and review all labour laws and make recommendations for appropriate legislative intervention to replace or amend existing laws. The Task Force submitted a report that formed the basis of the enactment of the Work Injuries Benefits Act 2007 (WIBA) which came into force on June 2, 2008 by Gazette Notice No 60 of May 23, 2008.
","E. Analysis
(i) Unconstitutionality of statutory provisions
36.
Before determining the above issues, we consider it pertinent to restate the approach that every court should take when determining the question whether any statutory provision is unconstitutional or not. It is alleged in the Petition of Appeal that the cited provisions of WIBA should be struck off for being in violation of the former and present Constitutions. In addressing that issue, it must always be borne in mind that the Legislature’s primary constitutional mandate is the making of laws. Those laws set the ultimate direction of all activities in a State and the actions of all persons. Thus, there exists principles that underline the determination of constitutional validity of a statute, or its provisions because it is the function of the courts to test ordinary legislation against the governing yardstick: the Constitution.
37.
At the forefront of these principles is a general but rebuttable presumption that a statutory provision is consistent with the Constitution. The party that alleges inconsistency has the burden of proving such a contention. In construing whether statutory provisions offend the Constitution, courts must therefore subject the same to an objective inquiry as to whether they conform with the Constitution. That is why in Hamdarddawa Khana v Union of India and Others 1960 AIR 554 it was stated thus;
“
Another principle which has to borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the needs of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment.”
38.
In addition to the above, and to fully comprehend whether a statutory provision is unconstitutional or not, its true essence must also be considered. This gives rise to the second principle which is the determination of the purpose and effect of such a statutory provision. In other words, what is the provision directed or aimed at? Can the intention of the drafters be discerned with clarity? These were our sentiments expressed in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Supreme Court Petition No 26 of 2014 [2014] eKLR, where we opined that a purposive interpretation should be given to statutes so as to reveal the intention of the Legislature and the Statute itself. We thus observed as follows:
“
In Pepper v Hart [1992] 3 WLR, Lord Griffiths observed that the “purposive approach to legislative interpretation” has evolved to resolve ambiguities in meaning. In this regard, where the literal words used in a statute create an ambiguity, the court is not to be held captive to such phraseology. Where the court is not sure of what the legislature meant, it is free to look beyond the words themselves, and consider the historical context underpinning the legislation. The learned Judge thus pronounced himself:
“The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous, I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”
39.
Therefore intention is construed by scrutinising the language used in the provision which inevitably discloses its purpose and effect. It is the task of a court to give a literal meaning to the words used and the language of the provision must be taken as conclusive unless there is an expressed legislative intention to the contrary.
These sentiments were also expressed by the court of Appeal while analysing how to determine the intention of a statute, in County Government of Nyeri & Anor v Cecilia Wangechi Ndungu [2015] eKLR where the learned judges held thus:
“
Interpretation of any document ultimately involves identifying the intention of Parliament, the drafter, or the parties. That intention must be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim and purpose. To that extent, almost every issue of interpretation is unique in terms of the nature of the various factors involved. However, that does not mean that the court has a completely free hand when it comes to interpreting documents; that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as can be attained, bearing in mind that each case must be resolved by reference to its particular factors.”
40.
All the principles above were well expressed in The Queen v Big M Drug mart Ltd, 1986 LRC (Const) 332, where the Supreme Court of Canada noted:
“
Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. The object is realized through impact produced by the operation and applications of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and ultimate impact, are clearly limited, but indivisible. Intended and achieved effect have been looked to for guidance in ascertaining the legislation’s object and thus validity.”
41.
On interpretation, specifically of a statute or even the Constitution itself, the Supreme Court of India in Reserve Bank of India v Peerless General Finance and Investment Co Ltd {1987} 1 SCC 424 and others observed that: -
“
Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual.”
42.
In addition to the above we also note that our Court of Appeal, in Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others, Civil Appeal No 74 and 82 of 2012, observed that in determining whether a statute is consistent with the Constitution, a court must determine the object and purpose of the impugned Act and this can be discerned from the intention expressed in the Act itself.
43.
In searching for the purpose, therefore, it is also legitimate to seek to identify the mischief sought to be remedied. The historical background of the legislation is one of the factors to consider in that regard and this allows the provision (s) to be understood within the context of the grid of other related provisions and of the Constitution as a whole. In this light, it is necessary to reflect on WIBA; how it came into being and its purpose.
44.
WIBA defines itself as an Act of Parliament to provide for compensation to employees for work related injuries and diseases contracted in the course of their employment and for connected purposes. In addition, a glimpse at the history of the Act would help us to further understand its purpose.
45.
In May 2001, a Taskforce to review all Labour Laws was appointed by the Attorney General vide Gazette Notice No 3204. The tripartite Taskforce, comprised of members from the Government, the trade unions the Central Organisation (COTU) and the employers’ organization; Kenya Federation of Kenya Employers (FKE). The terms of reference for the Taskforce were:
a)
To examine and review all the labour laws including the Employment Act (Cap 226); the Regulation of Wages and Conditions of Employment Act (cap 229); the Trade Unions Act (cap 233), the Trade Disputes Act (cap 234), the Workmen’s Compensation Act (cap 236),the Factories Act (cap 514) and make recommendations for appropriate legislation to replace or amend any of the labour law statutes;
b)
To make recommendations on proposals for reform or amendment of labour laws to ensure that they are consistent with the Conventions and Recommendations of the International Labour Organisation to which Kenya is a party; and
c)
To make recommendations on such other matters related to or incidental to the foregoing.
46.
The major points of concern addressed by the Taskforce relevant to this matter were: The merging and redrafting of the different relevant Acts in order to produce a user-friendly and comprehensive labour legislation for the benefit of the people; the introduction of an Industrial Court of Appeal to overcome the contradicting jurisdiction between the High Court and the Industrial Court; the setting up of an administration system to promote involvement and democratic participation of the social partners (role of the Labour Advisory Board, possible involvement of civil society concerned in specific fields, etc.); review of possible limitations of excessive powers and influence by the Minister for Labour in industrial relations and the creation of an efficient labour administration system capable of effectively enforcing the laws.
47.
The taskforce proposed five new statutes, one being the Work Injury Benefits Act (WIBA). This Act was to provide for compensation to employees for injuries suffered and occupational diseases contracted in the course of employment. Until the enactment of the WIBA, the Workmen’s Compensation Act cap 236 (Repealed) was the only Act of Parliament enacted to provide for compensation for injuries suffered by a worker in the course of his/her employment.
48.
The Work Injury Benefits Act (WIBA) also sought to provide for insurance of employees and related matters. It further incorporated the 1998 International Labour Organisation Declaration on Fundamental Principles and Right at Work ensuring basic human values vital to our social and economic development.
49.
The International Labour Organisation’s Policy document, Occupation, safety and health profiles in Kenya (October 1, 2004), also lent insight as to what WIBA was meant to achieve. A snippet is reproduced below:
“
Agencies responsible for administration
• The Ministry of Labour and Human Resource Development is responsible for the administration of the workmen compensation services through Labour department.
• However, with the recent review of the core Labour Laws, workmen’s compensation Act will be referred as Work Injury Benefit Act (WIBA) and will be administered by the Director of Directorate of Occupational Health and Safety Services (DOHSS) in the same Ministry.
• With this new arrangement the reporting of work injuries and accidents will be well captured in the most relevant department already charged with the responsibility of prevention of occupational accidents and diseases.
• The data collected will enable the officers concerned to institute investigation and hence hasten remedial measures to avoid further occurrence of the same.” (emphasis added)
50.
While the repealed Workmen’s Compensation Act (cap 236) only provided for compensation to workmen for injuries suffered in the course of their employment, WIBAprovides for compensation to employees for work related injuries and diseases contracted in the course of their employment and for connected purposes. WIBA also goes further and makes it compulsory for every employer to provide an insurance cover for all their employees against bodily injury, disease or death sustained and arising out of and in the course of their employment.
51.
It is therefore evident that WIBA’s purpose is a noble one. It is meant to offer protection to employees should they get injured or contract disease in the course of their duties. In addition, its reach is far wider than its predecessor; the Workmen’s Compensation Act cap 236.
52.
It is against this background that we now consider whether the petitioner has a valid case on the alleged unconstitutional statutory provisions of WIBA. For clarity, we shall determine the alleged unconstitutionality related provisions as delineated here below.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/16/eng@2019-12-03
Civil Application 18 of 2019,Beth Muthoni Njau & Eddie Njau v City Finance Bank Limited (Civil Application 18 of 2019) [2019] KESC 10 (KLR) (Civ) (29 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,I Lenaola,29 November 2019,2019.0,Nairobi,Civil,Beth Muthoni Njau & Eddie Njau v City Finance Bank Limited,[2019] KESC 10 (KLR)               ,,"Upon perusing the Notice of Motion application by the Applicants dated 7th June 2019 and filed on 10th June 2019 brought under Sections 3 and 31(d) of the Supreme Court Act as well as Rules 3, 26 and 53 of the Supreme Court Rules, 2012 seeking an extension of time to file an appeal out of time against the Ruling and Orders of the Court of Appeal in Nairobi Civil (Application) No.271 of 2010; and;
(2)
Upon reading the Applicant’s grounds in support of the Application together with the Supporting Affidavit of Beth Muthoni Njau sworn on 7th June 2019 and;
(3)
Upon considering the Applicant’s written submissions dated and filed on 28th June 2019 wherein the Applicants urge that they are seeking an extension of time to file an appeal against a Ruling delivered by the Court of Appeal on 9th November 2019; and that the delay in filing it was occasioned by the Court of Appeal’s failure to supply the relevant Judges’ notes until 8th May 2019, and that therefore the delay in filing an appeal on time is excusable and the grant of the orders sought will cause no prejudice to the Respondents and;
(4)
Upon reading the Respondent’s Replying Affidavit sworn and filed on 11th October 2019 in which it opposed the Application arguing that the same is totally misconceived as the intended appeal is neither one that raises constitutional questions for determination by this Court under Article 163(4)(a) of the Constitution nor was it certified as being one of general public importance under Article 163(4)(b) thereof, and;
(5)
Further, the Respondent having contended that the substantive appeal of the Court of Appeal, in which all contested issues were determined, has not been appealed from that but the intended appeal relates to a Ruling declining review of that Judgment and that therefore there is no basis for this Court to seize the intended appeal, and;","Upon considering the Applicant’s written submissions dated and filed on 28th June 2019 wherein the Applicants urge that they are seeking an extension of time to file an appeal against a Ruling delivered by the Court of Appeal on 9th November 2019; and that the delay in filing it was occasioned by the Court of Appeal’s failure to supply the relevant Judges’ notes until 8th May 2019, and that therefore the delay in filing an appeal on time is excusable and the grant of the orders sought will cause no prejudice to the Respondents and;
(4)
Upon reading the Respondent’s Replying Affidavit sworn and filed on 11th October 2019 in which it opposed the Application arguing that the same is totally misconceived as the intended appeal is neither one that raises constitutional questions for determination by this Court under Article 163(4)(a) of the Constitution nor was it certified as being one of general public importance under Article 163(4)(b) thereof, and;
(5)
Further, the Respondent having contended that the substantive appeal of the Court of Appeal, in which all contested issues were determined, has not been appealed from that but the intended appeal relates to a Ruling declining review of that Judgment and that therefore there is no basis for this Court to seize the intended appeal, and;
(6)
Upon considering the Respondent’s submissions filed on 11th October 2019 in which the above matters are reiterated, We Now Opine as follows;
(a)
In Charo v Mwashetani & 3 Others (2014) KLR-SCK and Application No.16 of 2014, Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others among other cases, this Court laid down the criteria for grant or denial of all application for extension of time to file an appeal before it.
(b)
The criteria includes the question whether the explanation given for any delay is reasonable and credible. That there must also exist extenuating circumstances to enable the Court exercise its unfettered jurisdiction in favour of an applicant. Inordinate delay cannot thus attract favourable exercise of discretion.
(c)
The above notwithstanding, the Respondent has raised a fundamental issue which we must consider in limine; whether in fact the intended appeal would properly be before us under Article 163(4) (a) and (b) of the Constitution.
(d)
In that context, in Erad Suppliers & General Contractors Limited v National Cereals & Produce Board SC Petition No. 5 of 2012 we stated as follows:
“In our opinion, a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of First Instance is to be resolved at that forum in the first place, before an appeal can be entertained. Where, before such a Court, parties raise a question of interpretation or application of the Constitution that has only a limited bearing on the merits of the main cause, the Court may decline to determine the secondary claim if in its opinion, this will distract its judicious determination of the main cause; and a collateral cause thus declined, generally falls outside the jurisdiction of the Supreme Court.”
(e)
We thus note that the substantive appeal before the Court of Appeal delivered on 16th June 2017 is not the subject of the intended appeal and so it remains unchallenged. The Ruling sought to be appealed was one of review of that Judgment on the question of interest on the decretal sum awarded to the Respondent.
(f)
It is obvious to us that such a matter cannot be the basis for an appeal as of right under Article 163(4)(a) of the Constitution and because no certification has been granted on the basis of the matter being one of great public importance, it means that any extension of time to file an appeal is a waste of this Court’s time.
(g)
It follows therefore that whatever the reasons for delay, once we have accepted the Respondent’s point on the law applicable to the intended appeal, it means that the Application before us is misconceived and the Applicants, represented by Counsel, ought to have known that it was also a non-starter.
(7)
Having therefore considered the Application, the Affidavit in support and the Replying Affidavit in opposition thereof and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following Orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/10/eng@2019-11-29
Application 12 of 2019,Githiga & 5 others v Kiru Tea Factory Company Limited (Application 12 of 2019) [2019] KESC 80 (KLR) (Civ) (29 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",29 November 2019,2019.0,Nairobi,Civil,Githiga & 5 others v Kiru Tea Factory Company Limited,[2019] KESC 80 (KLR)               ,,"A. Introduction
1
The applicants, having been convicted and sentenced for contempt of the Court of Appeal’s Orders dated 6 December 2017, have filed an application before this Court to stay further contempt application by the respondent. Their prayers are contained in the Notice of Motion application dated 2 July 2019, supported by the affidavit of Stephen Maina Githiga, the 1st applicant herein. The motion is seeking the following Orders:
i
that, pending the hearing and determination of this application, this Court do grant stay of further proceedings by way of hearing and prosecution of the contempt application dated 30 May 2019, as filed on 31 May 2019 in Nyeri Court of Appeal Civil Application No. 132 of 2017, Kiru Tea Factory Company Limited v. Stephen Maina Githiga & 32 others;
ii
that this Court do grant leave to the applicants, to amend the application dated 3 April 2019, as per the draft amended-application attached herein;
iii
that, following grant of prayer ii above, this Court do grant stay of further proceedings, and of the hearing and prosecution of the application dated 30 May 2019, as filed on 31 May 2019, in Nyeri Court of Appeal Civil Application No. 132 0f 2017, Kiru Tea Factory Company Limited v. Stephen Maina Githiga & 32 Others, pending the inter partes hearing and final determination of the amended application.
iv
that the costs of the application be provided for.
2
A number of other applications, some requiring determination by this Court, have also arisen, as will be indicated in this Ruling.
B. Background
3
The 1st – 4th applicants are either current, former, or disputed directors of Kiru Tea Factory Company Limited, the respondent herein. The 5th applicant is the group Chief Executive Officer of the KTDA Group of Companies, while the 6th applicant is now the Corporation Secretary of KTDA.
4
A dispute arose between various members of the board of directors of the respondent, and its company secretary. This involves two factions, each one competing for the control of the affairs of the company. One faction, led Mr. Geoffrey Chege Kirundi, moved the Court of Appeal by way of Notice of Motion, in Nyeri Civil Application No. 133 of 2013, seeking to stop the holding of a parallel Annual General Meeting of the respondent, convened by the opposing faction led by Mr. Stephen Maina Githiga. The motion was heard on 6 December 2017, the Court issuing injunctive interim Orders as follows:
“
Upon hearing learned counsel in this Motion, and in the Motion in Civil Application No. 133 of 2013, we are unable to deliver a reasoned Ruling right away . . .
“Considering the nature of the prayers sought we invoke Sections 3A and 3B of the Appellate Jurisdiction Act, and order that status quo be and is hereby maintained as of today, pending our Ruling as stated. No elections will be held until the Ruling is delivered.”
5
Notwithstanding the injunctive Orders above, an Annual General Meeting AGM was held on 14 December 2017. Pursuant to a resolution made at the said AGM, Mr. Stephen Maina Githiga’s faction was mandated to take over the Board, as Chairman. Another key resolution passed was that “any and all purported previous resolutions and/or authority granting Messrs. Geoffrey Chege Kirundi, Paul K. Muite and Kithinji Marete & Company Advocates mandate to plead, depone, appear, act and/or represent the respondent in Court proceedings is hereby revoked in its entirety.” A further resolution passed was that Dr. John F. Kennedy Omanga was reinstated as the respondent’s Company Secretary.
6
","C. Applications Before The Supreme Court
16
In order for the judicial process to function normally, as must be the Constitution’s intent, we have to first deal with the issue of the respondent’s representation. We remain cognizant of the fact that the respondents are entitled to participate, and to respond to the applicants’ application, even though it is the applicants who moved the Court in the first instance, in pursuit of urgent recourse. In consequence, at this stage, only two applications fall due for disposal — the third and the fourth. This will pave the way for further directions on the current matters as a whole, including the other pending applications. The main cause in this setting is that we are reluctant to consider the merits of the application on the basis of contentious representation, on the part of the respondent.
17
We proceed, on that basis, to consider the two applications – application dated 3 July 2019 fourth application , and the one on respondent’s legal representation third application .
Application Dated 3rd July 2019
18
Only the applicants filed submissions, on 11 July 2019, and these are limited to the fourth application. The respondent, evidently, would not have filed submissions, as its legal representation is contentious, and it is not settled which counsel would be responsible.
19
In support of the Notice of Motion of 3 July 2019, the applicants filed written submissions dated 10 July 2019 and these propose two issues for determination, namely:
whether the applicants have satisfied the conditions-precedent for amendment to the Notice of Motion application dated 3 April 2019; * whether the applicants have established the conditions-precedent for grant of Orders of stay of proceedings.PARAGRAPH 22.
20.
On the first issue, it has been submitted that this Court, pursuant to Section 21 1 b and 2 of the Supreme Court Act, has same powers as the Court of Appeal, and, therefore, has powers in respect of amendment under Rule 44 1 of the Court of Appeal Rules. Court of Appeal practice in such matters was invoked, through case law: Kenya Hotels Limited v. Oriental Commercial Bank Limited [2018] eKLR; and John Gakuo & another v. County Government of Nairobi & another [2017] eKLR. It was urged that, allowing amendment of filed documents is discretionary, and that, amendment of pleadings before hearing should be allowed, especially as the application has been made in good faith, and there is no prejudice to the respondent if amendment is allowed.
21
It is submitted that the substratum of the applicants’ current application is in the earlier application dated 3 April 2019; and the respondent having filed a second contempt application at Court of Appeal, which raises similar issues to the one before this Court, an amendment to the application dated 3 April 2019, will enable this Court to deal comprehensively with all issues relating to contempt proceedings.
22
On the second issue, the applicants have made reference to a decision of this Court: The Board of Governors, Moi High School, Kabarak & Another v. Malcolm Bell, SC Applications Nos. 12 and 13 of 2012 — where this Court held that, if interlocutory applications are excluded as a necessary step to preserve the subject matter of an appeal, the Supreme Court’s capability to arrive at a just decision on the merit of appeal would be substantially diminished. It is thus argued that the Court has jurisdiction to determine the application for stay, for purposes of sustaining the subject-matter.
23
The applicants, in submitting that they have met the threshold in an application for Order of stay, have cited this Court’s decision in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [2014] eKLR, where three principles were set out for grant of an Order for stay of execution. On the first principle, it is urged that the application/appeal is arguable, on the basis that the Court of Appeal had convicted the appellants on Orders that had lapsed, on 20 December 2017; they have filed Supreme Court Petition No. 13 of 2019, which has challenged the Court of Appeal decision in respect of Orders of 6 December 2017; 22 February 2019; and 28 March 2019. They urge that an amendment to the application dated 3 April 2019, to include further contempt claims, will bring to light all the issues that are live in the petition and the application, for determination once and for all.
24
The applicants urge that the proposed amendments seek to introduce the prayer that there be a stay of the proceedings, prosecution and determination of the further contempt dated 30 May 2019. They apprehend that, if the Court declines to grant stay, they will be prosecuted, and finally, the prayer of stay in the amended application will be rendered otiose.
25
On the issue of public interest, it is submitted that the respondent is a public company with approximately 8,000 shareholders, and it has become a matter of public notoriety, that there has been strife amongst directors, with consequential, unresolved controversies in the management of the company. It is in the public interest, they submit, that the company is not disrupted by further contempt proceedings.
26
This application seeks to amend the application dated 3 April 2019 first application , and to stay the subsequent contempt proceedings against the applicants. From a perusal of the draft amended application sought to be filed, we note that the applicant seeks to stay further proceedings arising from the application dated 30 May 2019 at the Court of Appeal, pending the determination of the appeal. This is in effect the same prayer sought in the present application. With this in mind, and considering the nature of the dispute, we are not inclined to consider the merits of the stay application at this stage, as considering it will in effect be an ex parte process, a practice that rarely carries the essentials of fairness. We prefer to accord the respondent, after a determination of its legal representation, an opportunity to reply; a duplication, by considering the prayer at this juncture, and again in the amended application, should be averted.
27
This, in effect, leaves us with the question of whether the applicants have satisfied the conditions to be allowed to amend their application. It is evident that there have been developments in the case before the Court of Appeal, which would be adequately captured in the amended application as proposed. Rule 3 5 of the Supreme Court Rules gives this Court inherent power to make such Orders, or give such directions as may be necessary for the ends of justice. We are satisfied that the purpose of the proposed amendment is to define the real question in controversy, and that the respondents will still have an opportunity to respond to the amendment, thereby addressing any potential prejudice that they may have suffered.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/80/eng@2019-11-29
Petition 13 of 2019,Githiga & 5 others v Kiru Tea Factory Company Ltd (Petition 13 of 2019) [2019] KESC 81 (KLR) (29 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",29 November 2019,2019.0,Nairobi,Civil,Githiga & 5 others v Kiru Tea Factory Company Ltd,[2019] KESC 81 (KLR)               ,,"1.
Coming up before this Court are two Notice of Motion applications filed by the firm of Kithinji Marete & Company advocates, dated 3 May 2019 and filed on 6 May 2019. The first application is seeking the following Orders:
(i)
that the notice of appointment of Advocates dated 4 April 2019, and filed on even date by M/s. Ochieng, Onyango, Kibet & Ohaga Advocates [M/s. Triple OK Law] be struck out with costs;
(ii)
that the notice of change of Advocates dated 15 April 2019, and filed on 17 April 2019 by M/s. Ochieng, Onyango, Kibet&Ohaga Advocates, be struck out with costs;
(iii)
that all pleadings filed by M/s. Ochieng, Onyango, Kibet & Ohaga Advocates, on behalf of Kiru Tea Factory Company Limited in relation to this matter, be struck out with costs;
(iv)
that the costs of, and incidental to this application be provided for.
2.
In the second application, the respondent is praying for the following orders:
(i)
that the notice of appeal dated 29 March 2019, and filed on 1 April 2019, be struck out with costs;
(ii)
that Supreme Court Petition No. 13 of 2019 — Stephen Maina Githiga & Others v. Kiru Tea Factory Company Limited — as instituted by the Petition of 3 April 2019 be struck out with costs; and
(iii)
that the costs of, and incidental to this application be provided for.
3.
Petition No. 13 of 2019 (Stephen Maina Githiga & Others v. Kiru Tea Factory Company Limited) is an appeal against the decision of the Court of Appeal delivered on 28 March 2019, an application for review of that Court’s Ruling of 22 February 2019, which had found the appellants in contempt of its Orders. The appellants argue, inter alia,  that the Appellate Court committed grave injustice, and a breach of vital principles falling under Articles 27(1), 50(1) and 159(2)(a) & (e) of the Constitution. These applications were filed just after the filing of the petition. The background to these two applications has been clearly set out in our Ruling in Supreme Court Application No. 12 of 2019 (Stephen Maina Githiga & Others v. Kiru Tea Factory Company Limited), and there is no need to restate the pertinent facts here.","The appellants have not responded to the second application. Following our earlier Ruling on representation, we allow scope for a reply within 21 days of the date hereof: in which event the question shall be placed before the Court for expeditious hearing and disposal.
8.
Accordingly, we now make the following Orders:
(a)
The Notice of Appointment of Advocates dated 4 April 2019, and filed on even date by M/s. Ochieng’, Onyango, Kibet & Ohaga Advocates, is hereby struck out.
(b)
The notice of change of advocates dated 15 April 2019, and filed on 17 April 2019 by M/s. Ochieng’, Onyango, Kibet & Ohaga Advocates is hereby struck out.
(c)
All pleadings filed by M/s. Ochieng’, Onyango, Kibet & Ohaga Advocates on behalf of Kiru Tea Factory Company Limited, in relation to this matter, are hereby struck out.
(d)
The appellants shall, within 21 days of the date of this Ruling, file a response to the second Notice of Motion, dated 3 May 2019.
(e)
The determination of the application to strike out the Notice of Appeal dated 29 March 2019, and filed 1 April 2019, and Supreme Court Petition No. 13 of 2019 (i.e., the second application), shall await further directions of this Court.
(f)
",Court issues further directions,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/81/eng@2019-11-29
Petition 20 of 2019,Minister for Health & another v Uasin Gishu Memorial Hospital Limited & another; Attorney General & another (Interested Parties) (Petition 20 of 2019) [2019] KESC 14 (KLR) (29 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",29 November 2019,2019.0,Nairobi,Civil,Minister for Health & another v Uasin Gishu Memorial Hospital Limited & another; Attorney General & another,[2019] KESC 14 (KLR)               ,,"Upon perusing the Notice of Motion Application by the 2nd Respondent/Applicant The Moi Teaching and Referral hospital, dated 2nd July 2019 and filed on 10th July 2019 premised upon the provisions of Articles 159(3)(d), 164(3) of the Constitution, Sections 3(e) and 31 of the Supreme Court Act, 2011, Rules 3(2), (4), 5, 18(1) and 53 of the Supreme Court Rules, 2012 seeking leave to adduce additional evidence prior to the hearing of the Petition herein and;
2.
Upon reading the 2nd Respondent’s/Applicant’s Affidavit sworn by one Sylvia Nyariki, its Legal Officer on 2nd July 2019 and;
3.
Upon reading the 1st Respondent’s Grounds of Opposition dated 2nd August 2019 and filed on 5th August 2019 and;
4.
Upon considering the 2nd Respondent’s/Applicant’s written submissions dated and filed on 2nd July 2019 wherein it submits that it intends to adduce additional evidence before this Court, the nature of which relates to the question whether the parcels of land, subject of the Appeal, and the developments thereon, have been public property, acquired, developed and maintained at the expense of the public and using tax payers’ resources;
5.
And which evidence, it was argued, could not be obtained with reasonable diligence for use at the trial; was not within its knowledge nor could it be produced at the time of filing the original suit at the High Court and the Appeal at the Court of Appeal; and that its officers had not been able to access its archives until Sylvia Nyariki aforesaid suggested a visit to the Hospital Archive and therefore the oversight was inadvertent and bonafide: and that the additional evidence does not introduce new substance to the dispute but would remove vagueness or doubt on issues already on trial by providing additional examples, details and particulars; and that the application has met the threshold for grant of orders to adduce additional evidence and;","In the above context, We now opine as follows:
(a)
The law regarding the introduction of additional evidence before this Court was settled in Petition No. 7 of 2018 Hon. Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others where the Court stated as follows regarding the principles for allowing such evidence:
…we conclude that we can, in exceptional circumstances and on a case by case basis, exercise our discretion and call for and allow additional evidence to be adduced before us. We therefore lay down the governing principles on allowing additional evidence in appellate Courts in Kenya as follows;
a.
the additional evidence must be directly relevant to the matter before the Court and be in the interest of justice;
b.
it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
c.
it is shown that it would not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
d.
where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
e.
the evidence must be credible in the sense that it is capable of belief;
f.
the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
g.
whether a party would reasonably have been made aware of and procured the further evidence in the course of the trial is an essential consideration to ensure fairness and due process;
h.
where the additional evidence discloses a strong prima facie case of wilful deception of the Court;
i.
the Court must be satisfied that the additional evidence is not utilized for the purpose of removing the lacunae and filling gaps in evidence. The Court must find the further evidence needful;
j.
a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in the appeal, fill up omissions or patch up the weak points in his/her case;
k.
the Court will consider the proportionality and prejudice of allowing the additional evidence. This requires the Court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.” [Emphasis added]
(b)
Noting that it is largely principles (b) and (c) above that the 2nd Respondent/Applicant has relied on, we see no evidence that save for Sylvia Nyariki’s “suggestion”, on an unknown date, that the Hospital Archive may have useful and relevant information, no other evidence is given as to how, over the last 7 years when the appeal before the Court of Appeal was pending and prior to that, while the matter was before the High Court, the 2nd Respondent’s officers acted to secure its case to the highest possible level. Where then is the evidence of diligence? We submit none and we agree with the 1st Respondent’s submission in that regard.
(c)
It is also our opinion that the evidence sought to be adduced is certainly meant to fill gaps in evidence and remove lacunae in the 2nd Respondent’s case in a second appeal where the issues to be addressed are matters of law and not of fact.
SUBPARA (d)
Having read the additional evidence, we doubt that it would be of any use to this Court in reaching a fair and final decision on the dispute between the parties.
10.
Having therefore considered the Application and submissions by the respective parties, by a unanimous decision of this Bench, we make the following orders under Section 23(2)(b) of the Supreme Court Act and Rules 21 and 23 of the Supreme Court Rules, 2012:
Orders
(a)
The Notice of Motion Application dated 2nd July 2019 and filed on 10th July 2019 is hereby dismissed.
(b)
Each Party shall bear its costs of the Application.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/14/eng@2019-11-29
Petition 3 of 2018,Mitu-Bell Welfare Society v Kenya Airports Authority; Initiative for Strategic Litigation in Africa (ISLA) (Applicant) (Petition 3 of 2018) [2019] KESC 18 (KLR) (29 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",29 November 2019,2019.0,Nairobi,Civil,Mitu-Bell Welfare Society v Kenya Airports Authority; Initiative for Strategic Litigation in Africa,[2019] KESC 18 (KLR)               ,,"A. Application
1.
The Applicant’s Notice of Motion, dated 5th March 2019 was filed on 7th March 2019. The Application is supported by the Affidavit of Sibongile Cherrol Ndashe sworn on the same date. It is attended with an amicus brief of even date and is premised on Articles 22(3)(e) and 163(8) of the Constitution as well as Rules 3(2), (4)(5), 54(1)(a) and (2) of the Supreme Court Rules, 2012.
2.
The Orders sought are:
1.
That Initiative for Strategic Litigation in Africa (ISLA), the Applicant herein, be granted leave to be admitted in these proceedings as Amicus Curiae.
2.
That leave be granted to ISLA to present written and oral submissions by way of an amicus brief in these proceedings.
3.
That upon granting leave to participate in the proceedings, the honourable Court give direction on how the amicus curiae shall participate in further proceedings herein on such other or further directions as this honourable Court may deem fit to give.
4.
That there be no award of costs for or against the amicus curiae.
3.
The grounds of the application are as follows:
1.
That the intended amicus curiae is a non-governmental organization established in 2014 based in Johannesburg, South Africa and uses the rule of law and African domestic and regional Courts to promote and protect women’s human rights, inter alia.
2.
That the intended amicus curiae has a legitimate interest in being enjoined in the Petition, so as to make submissions on the meaning of the right to remedy in the context of human rights’ violations; demonstrate how remedies in human rights have evolved and present comparative jurisprudence on the subject.
3.
That the intended amicus curiae will make submissions as an independent expert which action will assist the Court in the determination of the issues raised in the Petition.
4.
In submissions filed on 7th March 2019, the intended amicus curiae has added that it has satisfied the criteria set by this Court in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2015] eKLR, and that it also filed its Application timeously.
5.
The application is not contested by the Petitioner but the 1st Respondent filed Grounds of Opposition on 27th March 2019 stating that the Applicant has not demonstrated any expertise in the matters to be addressed at the hearing; has not raised any novel point of law separate from what the Petitioner has raised; is not a neutral party and did not file its Application timeously.
3.
In submissions filed on 15th October 2019, the 1st Respondent has reiterated the above grounds but adds that the criteria for admission of an amicus curiae as set in Trusted Society of Human Rights Alliance (supra) has not been met and that the Application is misconceived and ought to be dismissed with costs.","B. Determination
7.
We have noted the submissions by the parties and further note that Rule 54 of the Supreme Court Rules, 2012 provides:
(1)
The Court may –
(a)
in any matter allow amicus curiae;
(b)
appoint a legal expert to assist the Court in legal admissions;
(c)
at the request of a party or on its own initiative, appoint an independent expert to assist the court on any technical matter;
(2)
The Court shall before allowing an amicus curiae take into consideration the expertise, independence and impartiality of the person in question and it may take into account the public interest or any other relevant factor.”
8.
In expounding on the criteria for admission of an amicus curiae, in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2015] eKLR, we stated as follows:
(i)
An amicus brief should be limited to legal arguments.
“(ii)
The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law…
“(iv)
An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.”
9.
Later, in Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLR we affirmed the above guidelines and the parties herein have disagreed on whether the Applicant has met the criteria above. In that regard, we note that the Applicant has addressed its expertise and has filed an amicus brief limiting itself to the grounds of its intended participation in the hearing of the Petition of Appeal.
10.
We have furthermore noted that the Applicant has in its brief limited itself to legal arguments and although only 5 years old since its inception, it claims to have had extensive experience in human rights litigation particularly in the protection of the rights of women. Not one case has been cited where that expertise has been applied.
11.
As regards its neutrality, although the 1st Respondent has challenged the Applicant on that issue, we have seen nothing in the amicus brief which points to a lack of impartiality on the part of the Applicant. Nothing also exists on the record as to whether the Applicant has any special relationship with the Petitioner or that its brief is deliberately skewed towards the Petitioner.
12.
In the circumstances, and despite our concern about lack of evidence of previous engagements in litigation by the Applicant, its amicus brief is detailed enough and useful to the Court and we shall therefore exercise discretion and grant the orders sought.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/18/eng@2019-11-29
Petition 18 of 2015,Ngoge t/a OP Ngoge & Associates v Onyango & 4 others; Attorney General & another (Interested Parties) (Petition 18 of 2015) [2019] KESC 8 (KLR) (29 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",29 November 2019,2019.0,Nairobi,Civil,Ngoge t/a OP Ngoge & Associates v Onyango & 4 others; Attorney General & another,[2019] KESC 8 (KLR)               ,,"Upon perusing the Notice of Motion application dated 22nd October 2018 and filed on 23rd October 2019 which is brought under the provisions of Articles 1(5)(6), 10, 19, 20, 21, 22, 27, 28, 29, 40, 50 and 258 of the Constitution as well as Section 14(5) of the Supreme Court Act seeks Orders for review of the Judgment and order of this Court dated 2nd October 2015 and;
2.
Upon considering the Supporting Affidavit of Peter O. Ngoge Advocate, sworn on 22nd October 2015 and a further Affidavit sworn on 3rd May 2019 as well as the 6th Respondent’s Grounds of Opposition dated 29th March 2019 and filed on the same date and;
3.
Upon reading written submissions by the Applicant dated and filed on 11th June 2019 together with submissions in response to the 1st and 2nd Respondents’ submissions wherein the Applicant has submitted afresh on matters that have been heard and determined by the High Court, Court of Appeal and this Court, faulting all of them for allegedly misconstruing and misunderstanding the case as argued before them; and adding that he has filed a complaint against the Republic of Kenya at the African Commission on Human and Peoples Rights on matters touching on those decisions and;
4.
Noting that the Applicant also submits that a review of this Court’s Judgment is necessary because he is now at the risk of execution of the 1st and 2nd Respondents’ Bill of Costs taxed at Kshs.5,000,000 or thereabouts which action will be highly prejudicial to him during the pendency of the proceedings before the African Commission on Human and Peoples Rights and;
5.
Upon reading the 1st and 2nd Respondent’s submissions dated and filed on 26th July 2019, where it was submitted that once this Court delivered its Judgment on the appeal on which the present Application is predicated, it became functus officio and has no jurisdiction to stay or review the said Judgment and further, that the African Court on Human and Peoples Rights has no superiority over this Court neither can it supervise it and therefore its proceedings are of no consequence to the present Application and;","We note that the law as regards review of Judgments of this Court was settled on a Ruling delivered on 24th February in Petition No.6 of 2014 Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others e[KLR] wherein we rendered ourselves as follows:
Taking into account the edicts and values embodied in Chapter 10 of our Constitution, we hold that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated in paragraph (90) above. However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:
(i)
the Judgment, Ruling, or Order, is obtained, by fraud or deceit;
(ii)
the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
(iii)
the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;
(iv)
the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of , a deliberately concealed statutory provision.
These principles are no doubt informed by various judicial authorities, in other jurisdictions, such as the ones we have cited from Nigeria, United Kingdom, India and South Africa”. [Emphasis added]
9.
Upon applying the above principles to the present case, it is quite obvious to us that none of the exceptional circumstances set out above are properly applicable to this case. It can in fact be seen that the Applicant only moved this Court for a review of its Judgment, 3 years after delivery of the said Judgment and only because he was threatened with execution by the 1st and 2nd Respondents. That action is not a ground for seeking a review of the Judgment.
10.
Furthermore, whereas the African Commission on Human and Peoples Rights is indeed seized of a complaint against the Republic of Kenya by the Applicant, that fact alone is not sufficient to move this Court to review its Judgment.
11.
And in the circumstances, the Application, Affidavit in support, verbose as they are, and the largely irrelevant submissions by the Applicant, have not swayed our collective minds towards a review of our Judgment as prayed.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/8/eng@2019-11-29
Petition 5 of 2017,British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) (26 November 2019) (Judgment),Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",26 November 2019,2019.0,Nairobi,Civil,British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another,[2019] KESC 15 (KLR)               ,,"I. Introduction
1.
The appellant moved the court via a petition dated March 31, 2017, being an appeal against the Judgment of the Court of Appeal (Okwengu, Azangalala and Sichale, JJA) in Civil Appeal No 112 of 2016, which decision upheld the Judgment of the High Court, in High Court Petition No 143 of 2015, British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health & 4 others that judgment held that there was adequate consultation or public participation in the formulation of Tobacco Control Regulations, 2014 and that, except for regulations 1, 13(b) and 45, the provisions are neither unconstitutional nor unlawful nor do they violate any right of the appellant, the affected party or the Tobacco industry players.
2.
The appellant sought the following reliefs (produced verbatim), that:
i.
The appeal to be allowed.
ii.
The Judgment of the Court of Appeal in Civil Appeal 112 of 2016 be set aside and judgement be entered as prayed in the petition in the High Court on April 15, 2015.
iii.
The costs in this Appeal, Civil Appeal 112 of 2016 British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health & 4 others, and High court Petition Number 143 of 2015 British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health & 4 others, be awarded to the appellant.
iv.
Any further or alternative relief this Honourable Court may deem fit to grant.
II. Background
3.
In a Notice in the Kenya Gazette dated December 5, 2014, the 1st Respondent published the Tobacco Control Regulations, 2014 (herein after referred to the Regulations) by way of Legal Notice No 169 (Legal Supplement No 161). The Regulations were made pursuant to section 53 of the Tobacco Control Act, 2007 (herein after referred to the Act) and sought to regulate various aspects of the Tobacco sector in Kenya. section 53 of the Act gives powers for making Regulations prescribing or prohibiting anything required by the Act to be prohibited, or for the better carrying out of the objects of the Act.","VI. Analysis And Determination
(i) Whether the process leading to the making of the Tobacco Regulations 2014 was unconstitutional for lack of public participation and consultation ?
85.
Public participation has been entrenched in our Constitution as a national value and a principle of governance under article 10 of the Constitution and is binding on all State organs, State officers, public officers and all persons whenever any of them: (a) applies or interprets the Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. As aptly stated by the Appellate Court, public participation is anchored on the principle of the Sovereignty of the People “that permeates the Constitution and in accordance with article 1(4) of the Constitution is exercised at both national and county levels”.
86.
Article 118 of the Constitution provides for public participation in the legislation making process, as follows:
“
Public access and participation
(1)
Parliament shall-
(a)
conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and
(b)
Facilitate public participation and involvement in the legislative and other business of Parliament and its committees”.
Therefore, while the legislative mandate is delegated to Parliament, it must facilitate public participation as the onus of ensuring public participation rests with it.
87.
Since the promulgation of the Constitution 2010, the question of the rationale, scope and application of public participation as a principle of governance has been subject of numerous decisions by the courts. The High Court in this matter appraised itself of the various decisions on the same, which appraisal the Court of Appeal readily endorsed. In the Matter of the National Land Commission,the Supreme Court placed the principle of public participation at the core of the concept of checks and balances in governance in the execution of their functions by the various arms of government, when we stated:
“
[308] The conditioning medium within which these functions have to be conducted, is constituted by the national values and principles outlined in article 10 of the Constitution: in particular,the rule of law; participation of the people; equity; inclusiveness; human rights; non-discrimination; good governance; integrity; transparency and accountability. It is to be noted that, the very essence of checks-and-balances touches on the principles ofpublic participation, inclusiveness, integrity, accountability and transparency; and the performance of the constitutional and statutory functions is to be in line with values ofintegrity, transparency, good governance and accountability…”
88.
The Retired Chief Justice, Dr. Willy Mutunga, in his concurring opinion expounded on the principle and traced the place of the People in the Constitution making process thus:
“
[320] In the entire history of constitution-making in Kenya, the participation of the people was a fundamental pillar. That is why it has been argued that the making of Kenya’s Constitution of 2010 is a story of ordinary citizens striving to overthrow, and succeeding in overthrowing the existing social order, and then defining a new social, economic, political, and cultural order for themselves. It is, indeed, a story of the rejection of 200 Parliamentary amendments by the Kenyan elite that sought to subvert the sovereign will of the Kenyan population. Public participation is, therefore, a major pillar, and bedrock of our democracy and good governance. It is the basis for changing the content of the State, envisioned by the Constitution, so that the citizens have a major voice and impact on the equitable distribution of political power and resources. With devolution being implemented under the Constitution, the participation of the people in governance will make the State, its organs and institutions accountable, thus making the country more progressive and stable. The role of the Courts, whose judicial authority is derived from the people of Kenya, is the indestructible fidelity to the value and principle of public participation.
89.
The Rtd Chief Justice drew from caselaw on the principles for public participation in various court decisions including Speaker of the Senate & another v. Attorney General& 4 others Sup. Ct. Advisory Opinion No 2 of 2013; [2013] eKLR; Thuku Kirori & 4 others v. County Government of Murang’a Petition No 1 of 2014; [2014] eKLR; Nairobi Metropolitan PSV Saccos Union Limited & 25 others v County of Nairobi Government & 3 others Petition No 418 of 2013; [2013] eKLR; and Robert N. Gakuru & others v. Governor Kiambu County & 3 others, Petition No 532 of 2013 consolidated with Petition Nos. 12 of 2014, 35, 36 of 2014, 42 of 2014, & 72 of 2014 and JudicialReview Miscellaneous Application No 61 of 2014;[2014] eKLR [Robert Gakuru case](Most of these cases were also referred to by the High Court in this matter). He also referred to the jurisprudence from the South African Constitutional Court decision, Doctors for Life International v. Speaker of the National Assembly and others[2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) which also considered the role of the public in the law-making process.It in part stated as follows:
“
The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.
116. Therefore our democracy includes as one of its basic and fundamental principles, the principle of participatory democracy. The democratic government that is contemplated is partly representative and partly participatory, is accountable, responsive and transparent and makes provision for public participation in the law-making processes. Parliament must therefore function in accordance with the principles of our participatory democracy”
90.
Earlier on, the Supreme Court had reiterated the centrality of public participation as regards the issue of digital migration, in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others,[2014] eKLR. We stated inter alia:
“
Public participation is the cornerstone of sustainable development and it is so provided in the Constitution…
[381] Public participation calls for the appreciation by State, Government and all stakeholders implicated in this appeal that the Kenyan citizenry is adult enough to understand what its rights are under article 34. In the cases of establishment, licensing, promotion and protection of media freedom, public participation ensures that private “sweet heart” deals, secret contracting processes, skewed sharing of benefits-generally a contract and investment regime enveloped in non-disclosure, do not happen. Thus, threats to both political stability and sustainable development are nipped in the bud by public participation. Indeed, if they did the word and spirit of the Constitution would both be subverted.”
91.
The High Court in this matter, as observed by the Court of Appeal, appropriately referred to several decisions on public participation and consultation. All these cases are illuminating on the place of public participation in governance under the Constitution 2010.
92.
In Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya & 6 others Judicial Review No 378 of 2017; [2017] eKLR among the issues for consideration before the High Court was whether the IEBC was constitutionally obliged to facilitate public participation as part of the tendering process. The High Court allowed the Petition and quashed the award of the tender for lack of public participation. It ordered that the procurement process begin de novo in accordance with the Constitution. IEBC appealed to the Court of Appeal. In upholding the appeal, setting aside the High Court decision, the Court of Appeal considered the big issue of justifiability and enforceability of article 10 of the Constitution, which encompasses the principle of public participation. The appellate court in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance(NASA) Kenya & 6 others,Civil Appeal No 224 of 2017; [2017] eKLR held that article 10(2) and the principles therein are for immediate realization, thus:
“
80. In our view, analysis of the jurisprudence from the Supreme Court leads us to the clear conclusion that article 10 (2) of the Constitution is justiciable and enforceable immediately. For avoidance of doubt, we find and hold that the values espoused in article 10 (2) are neither aspirational nor progressive; they are immediate, enforceable and justiciable. The values are not directive principles.
We agree with this pronouncement and reiterate that the principle of public participation as anchored in article 10 of the Constitution is alive and the same is equally justiciable before our courts.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/15/eng@2019-11-26
Civil Application 7 of 2019,Bunei & 8 others v Lorien Ranching Company & another (Civil Application 7 of 2019) [2019] KESC 17 (KLR) (26 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu",26 November 2019,2019.0,Nairobi,Civil,Bunei & 8 others v Lorien Ranching Company & another,[2019] KESC 17 (KLR)               ,,"A. Introduction
1.
This is an application by way of a Notice of Motion dated 6th March 2019 brought under Articles 10, 20(3), 25(c), 40, 50, 159(2) (a) and (d), 163(4)(b) and 259(1) of the Constitution, Section 15(1) and 16 of the Supreme Court Act, Rule 30(2) of the Supreme Court Rules, Rules 42 and 43 of the Court of Appeal Rules, and all other enabling provisions of the Law. The Application seeks the following orders:
1.
That the Court be pleased to recall, review and /or set aside the decision of the Court of Appeal at Nyeri (Waki, Sichale, Kantai, JJA) ruling delivered on 13th February, 2019 in Civil Application SUP No. 3 of 2018 (UR 1/2018).
2.
That in the event the application for review is disallowed , leave be granted to the Applicant to lodge an appeal to the Supreme Court against the Court’s judgment delivered on 22nd November 2017 in Nyeri Civil Appeal No. 66 of 2015 pursuant to 163 (4)(b) of the Constitution and Section 16 of the Supreme Court Act, 2011, and
3.
That the Court be pleased to extend time for giving Notice of Appeal, and for leave to appeal out of time the proposed appeal to this Court, pursuant to Rule 33 of the Supreme Court Rules, against the judgment delivered on 22nd November 2017 in Nyeri Civil Appeal No. 66 of 2015, and
4.
That the Court be at liberty to make any order in the interest of justice.
5.
That costs be awarded in favour of the Applicants.
2.
The application is anchored on several grounds in the body of the application and the supporting affidavit of Richard Koskei Bunei sworn on 5th March, 2019.
3.
The application is vehemently opposed by the 1st Respondent through their Replying Affidavit and Supplementary Affidavit sworn by Jackson Kipkemoi Too on 26th March, 2019 and 8th May, 2019 respectively.
B. Background
Proceedings at the High Court
4.
This suit can be traced to 1970 when the 1st Respondent, Lorien Ranching Company, purchased two parcels of land which it subsequently allocated to its members. The 1st Respondent’s former secretary/director, William Arap Birgen, together with others collected funds from members of the public in the promise that they had land to sell to them. Later, in 1979, those members together with Willian Arap Birgen (herein referred to as the second Respondents) attempted to settle in the 1st Respondent’s farm but the genuine members who were already in occupation and who ejected them. Consequently, the 2nd Respondent filed a suit at the High Court at Nyeri being HCCC No. 80 of 1983 seeking certain injunctions against the 1st Respondent. On 2nd October 1992, a consent order was recorded before Tunoi, J (as he then was), (hereafter the Tunoi consent) to not only settle the membership and control of the Company, but also provided for the sub-division of the Farm and allocation of it to various groups of people comprising the 2nd Respondent.
5.
As the sub-division was going on, the second Respondent, proceeded to the High Court in Nyeri and filed a Judicial Review Application No. Nyeri Misc. Cause No. 253 of 1994 seeking to prohibit the Chief Land Registrar, the Land Registrar and the District Commissioner, Laikipia, from processing or issuing title deeds. The High Court issued orders prohibiting the issuance of title deeds and an order of certiorari quashing the subdivision of the Farm that had been made, and the respective title deeds issued.
6.
As a result of the Judicial Review orders, the 1st Respondent moved to the High Court and urged the Court to set aside orders obtained in HCCC 80/1983, HC MISC. 253/1994, Nyeri High Court Miscelleneous Civil Application NO. 264 OF 2008 , prohibit the second Respondent from trespassing its members’ property, nullify the land control board consent obtained by the second Respondent, among other orders. Before the trial commenced, a group of ten people led by Richard Koskei Bunei, and who are the Applicants herein, filed an application on 15th April 2012 seeking to be enjoined in the suit as interested parties. They defended the impugned orders in the other suits as lawful, just and expedient for the welfare of the Company, while terming the suit as appropriate for stated reasons.
7.
The case proceeded to full hearing and after receiving submissions from the respective parties, Ombwayo J by a considered judgment signed and dated 27th March 2015 and read on his behalf by Waithaka J on 22nd April 2015, found the 1st Respondent’s case proved and granted the prayers sought. The Applicants were condemned to pay the costs of the suit.","D. Analysis
21.
The Court of Appeal Judgement was delivered on 22nd November, 2017 yet no notice of Appeal was filed. The Notice of Appeal ought to have been filed on or before 6th December, 2017. The Applicant submits that the Notice of Appeal is only due once the Court has certified that a mater of general public importance is involved. The 1st Respondent urge that the instant application is time barred and that the Applicants have not sought extension of time to file the same thereby making it incompetent before the Court. The Applicant waited for more than a year to seek for an extension to file a Notice of appeal.
22.
In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others; Appl. No. 16 of 2014, [2014] eKLR, this Court made it clear that a Notice of Appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite.
23.
Rule 53 of the Supreme Court Rules provides that the Court may extend the time limited by its Rules, or by any other decision of the Court. This Court’s inherent power to extend time does not operate in a vacuum, that is why this Court set the guiding principles in the Nick Salat Case as follows:
… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.
“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:
1.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;
2.
a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3.
whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;
4.
where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;
5.
whether there will be any prejudice suffered by the respondents, if extension is granted;
6.
whether the application has been brought without undue delay; and
7.
whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied]
25.
In the case of County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR, this Court emphasized the need for the Applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court. Without a satisfactory explanation, we are not able to exercise our discretion to extend time to file the Notice of Appeal.
26.
In the present case, we note there is no plausible explanation why the Notice of Appeal was not filed on time. Even if this Court has inherent jurisdiction to extend time in order to sustain the ends of justice, we can only do so when an Applicant presents a reasonable ground for doing so and justifying the delay.
Does the intended appeal raise matters of general public importance?
27.
At the High Court, we note, the Learned Judge was asked to prohibit the second Respondent from trespassing the 1st Respondent’s members’ property, nullify the land control board consent obtained by the second Respondent among other orders. At the Court of Appeal, three issues arose for determination, namely, whether the suit was properly before the Court? Who were the members of the plaintiff Company? and whether the orders obtained in Nyeri HCCC No. 80 of 1983, 253 of 1994 and 264 of 2008 were fraudulent?
28.
In the case of Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone,Civil Appl. No. Sup.4 of 2012 (UR3/2012), [2013] eKLR (Par. 60), we emphasized that to succeed in an application for certification under Article 163(4)(b) of the Constitution, an applicant has to demonstrate that the issue to be raised in the intended appeal involves a matter of general public importance;
the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest; …where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest….; mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court.” [Emphasis supplied].
29.
Having perused the application before us, the supporting affidavit, the replying affidavit, supplementary replying affidavit, and the parties’ submissions, we agree with the Court of Appeal that intended appeal does not meet these criteria to warrant a review of the Court of Appeal’s decision. We need to note that the question as to whether a Court of law can set aside proceedings of another court of equal rank was never an issue for determination at the Court of Appeal and is being raised in this Court for the first time. We therefore cannot entertain this issue at this stage for the first time. This Court has in previous decision emphasized the significance of respecting the hierarchy of the judicial system. For instance, in the Peter Oduor Ngoge v Francis Ole Kaparo & others [2012] eKLR case we stated thus:
In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.”",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/17/eng@2019-11-26
Civil Application 8 of 2019,Kenya National Capital Corporation Ltd v Galot & 5 others (Civil Application 8 of 2019) [2019] KESC 82 (KLR) (Civ) (26 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",26 November 2019,2019.0,Nairobi,Civil,Kenya National Capital Corporation Ltd v Galot & 5 others,[2019] KESC 82 (KLR)               ,,"A. Introduction
1.
This is an application by way of a Notice of Motion dated 7th March, 2019 brought under Rules 3, 24(1), 31, 53 of the Supreme Court Rules, 2012, and Articles 159(2)(d) and 163(4)(b) of the Constitution. The application seeks the following substantive orders:
1.
That this Honourable Court be pleased to extend the time limited for filing a Notice of Appeal and grant the Applicant leave to file the Notice of Appeal herewith annexed against the Judgment of the Court of Appeal at Nairobi (Musinga, Murgor, Kantai, JJA) dated 8th February, 2019.
2.
That this Honourable Court be pleased to extend time and grant the Applicant leave to file at the Court of Appeal the Application herewith annexed for certification that a matter of general public importance is involved in the Applicant’s intended appeal to the Supreme Court of Kenya against the Judgment of the Court of Appeal at Nairobi (Musinga, Murgor, Kantai, JJA) dated 8th February, 2019.
3.
That the costs of, and incidental to this application abide the result of the intended appeal.
2.
The application is founded on eleven (11) grounds in the body of the application and the supporting affidavit of the Manager Recoveries Department of the Applicant, sworn on 7th March, 2019.
B. Background
i. The High Court
3.
On 8th October, 2002 the Court, Ringera J (as he then was) found that the Appellant had not placed before the court any material to enable him exercise his jurisdiction on an application for review. He also found that the consent order required the Registrar to do what amounted to judicial acts in addition to ministerial acts and further, that reference of the parties on the dispute on accounts to the Registrar did not involve an issue of jurisdiction. The Learned Judge held that the consent order as agreed was capable of implementation because the interest rates and the periods for their application had been agreed, that the application had been brought with inordinate delay and dismissed the same. He however found that the consent order could not dispose of the whole dispute between the parties because there were reliefs sought in the plaint which went beyond accounts. The Judge therefore corrected the omission or oversight and ordered that once the Registrar had concluded his mandate of determining accounts, he should submit his report and findings to the Court for further proceedings and final orders in the suit. This ruling was never appealed.
4.
Subsequently, parties appeared before A.L. Kindy, Deputy Registrar and made their respective cases, through their accountants on the issue of accounts. The Deputy Registrar delivered a ruling on 27th August, 2004 and found that the Applicant owed the Respondents an overpayment of Kshs. 48, 951, 536/=, which ruling was reduced into a formal order dated 22nd October, 2004. Based on the aforementioned order, the Respondents filed an application to have the Registrar’s finding adopted as the judgment of the Court, a decree issued, discharged of charged and mortgaged properties, and a release of the title deeds of the properties.
5.
On 29th October, 2008, Kimaru J found merit in the Respondent’s application effectively adopting the Deputy Registrar’s decision and entered judgment in favour of the Respondents against the Applicant for the Sum of Kshs. 48, 951, 536/= together with interest at 19% per annum. The Court directed further that the other prayers of the plaint and counter-claim to be determined in a full trial.
","E. Analysis
16.
Rule 31(1) of the Supreme Court Rules thus provides:
“
A person who intends to appeal to the Court shall file a notice of appeal within fourteen days from the date of judgment or ruling, in Form B set out in the First Schedule, with the Registrar of the Court or with the tribunal, it is desired to appeal from.”
17.
The Applicant therefore had 14 days from the delivery of the judgment of the Court of Appeal, to file a Notice of Appeal. Consequently, the Applicant ought to have filed the Notice of Appeal on or before 22nd February, 2019 since the Court of Appeal delivered its judgment on 8th February, 2019. It is the Applicant’s submission that upon the delivery of judgment they could not file the Notice of appeal and the application to have the matter certified as one involving a matter of general public importance(before the Court of Appeal) within time for two reasons namely, its advocates had not yet received instructions to file the Notice of Appeal due to time spent by the Applicant in deliberating on the matter and acquiring requisite board approvals and the same advocates experienced power disruption at their office premises due to the ongoing expansion of Ngong road near Karen which resulted in destruction of data relevant to these proceedings on multiple occasion.
18.
Concerning extension of time, this Court has already set the guiding principles in Nicolas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others SC. App. No. 16 of 2014; [2015] eKLR (the Nick Salat Case) as follows:
… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.
“
… we derive the following as the underlying principles that a Court should consider in exercising such discretion:
1.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;
2.
a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3.
whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;
4.
where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;
5.
whether there will be any prejudice suffered by the respondents, if extension is granted;
6.
whether the application has been brought without undue delay; and
7.
whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied]
19.
It is critical for us to determine if the application herein meets the criteria set in Nick Salat Case. One of the requirements is that the applicant should furnish the Court with sufficient reasons for the delay. Of the two reasons cited by the Applicant, none is substantiated. The Applicant has not annexed any correspondence to its affidavit to confirm that there were indeed consultations going on, in its organization. Additionally, there is nothing annexed to the Applicant’s supporting affidavit to ascertain that there were power interruptions during the entire period when the Applicant was expected to file the Notice of Appeal. If the Applicant had been diligent, it would have had its notice of appeal, which is about a page, typed elsewhere and filed in this Court.
Consequently, it is our finding that the applicant has not satisfactorily explained the inordinate delay as decided by this Court in the case of County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR, where this Court emphasized the need for the Applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court and the first prayer of the application therefore is disallowed.
20.
In the foregoing, we are inclined to disallow the application in entirety",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/82/eng@2019-11-26
Petition (Application) 14 of 2017,Kiluwa Limited & another v Business Liason Company Limited & 3 others (Petition (Application) 14 of 2017) [2019] KESC 13 (KLR) (26 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",26 November 2019,2019.0,Nairobi,Civil,Kiluwa Limited & another v Business Liason Company Limited & 3 others,[2019] KESC 13 (KLR)               ,,"
A. Background
1 .
This is a Notice of Motion Application dated 11th September 2017 and filed on the 13th of September 2017.
2 .
The Applicants have moved the Court for orders that:
1.
This Honorable Court be pleased to grant leave to the Applicants to file a Supplementary Record of Appeal to the Petition No 14 of 2017 filed on the 3rd August 2017.
2.
The costs of and incidental to this Application be provided for and do abide the result of the Appeal in the said Petition.
3 .
The Applicants previously moved this Court via an Application by Notice of Motion dated 2nd February 2017, seeking to extend time for filing and serving the Petition and Record of Appeal. A single Judge of this Court J.B. Ojwang SCJ, allowed the Application via Ruing dated 26th July 2017.
4 .
Subsequently, the Applicants filed the Petition and Record of Appeal on the 3rd of August 2017, serving the same on the 3rd and 4th Respondents on the 4th August 2017, and on the 1st and 2nd Respondents on the 7th of August 2017.
5 .
On the 22nd of August 2017, the 1st and 2nd Respondents filed grounds of objection raising a preliminary objection that the complete proceedings of the Court of Appeal, specifically the court notes of Makhandia & Ouko JJA were omitted from the record as well as the order extending time by the J. B. Ojwang SCJ which was also not attached to the Petition and Record of Appeal.
6 .
The Applicants have therefore sought to file a Supplementary Record of Appeal to include the entire set of the Court of Appeal proceedings.
7 .
It is their case in that regard that the Application has been brought without undue delay and that there would be no prejudice suffered by the Respondent if leave to file a supplementary record of appeal is granted.
8 .
The 1st and 2nd Respondents on their part submit that the Record of Appeal is defective as it does not comply with the mandatory provisions of Rule 33 of the Supreme Court Rules.
9 .
It is their case that the Applicants in their Supportive Affidavit, have admitted failure in compliance with the Rules when they excluded the Court Notes of Makhandia and Ouko, JJA","B. Analysis
10.
We have considered the grounds in support of the Notice of Motion dated 11th September 2018, the grounds of objection and the submissions by counsel. Rule 33(1) of the Supreme Court Rules provides;
“
An appeal to the Court shall be instituted by lodging in the Registry within thirty days of the date of filing of the notice of appeal-
a)
a petition of appeal;
b)
a record of appeal; and
c)
the prescribed fee.”
11 .
Rule 33(4) of the Supreme Court Rules also provides as follows:
“
For purposes of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub-rule (3) and shall further contain the following documents relating to the appeal in the first appellate court—
a.
the certificate, if any, certifying that the matter is of general public importance;
b.
the memorandum of appeal;
c.
the record of proceedings; and
d.
the certified decree or order.”
12 .
Further, Rule 33(6) of the Supreme Court Rules states as follows:
“
Where a document referred to in sub-rule (3) and (4) is omitted from the record of appeal, the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record of appeal.”
13 .
As to the extension of time, this Court has already set the guiding principles in Nicholas Kiptoo arap Korir Salat v. Independent Electoral and Boundaries Commission and 7 Others, Sup. Ct Application No. 16 of 2014 where we stated:
“
… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.”
14 .
In the case of County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR, this Court emphasized the need for the Applicants, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court. On the issue of delay occasioned by typed proceedings, we stated as follows:
“
24)
a ground of delay of getting typed proceedings is not a prima facie panacea for a case of delay whenever it is pleaded. Each case has to be determined on its own merit and all relevant circumstances considered.”
15)
While it is stated that a court has the discretion to extend time, for this to be favorably exercised, a plausible and satisfactory explanation ought to be given by an applicant. Similarly, it is imperative that such an applicant demonstrates that no prejudice will be suffered by the other parties to an appeal.
16)
Having examined the record, we note that the Applicants have stated that the exclusion aforesaid was an oversight when preparing the Record of Appeal, mistakenly believing that the Court of Appeal proceedings received from the Court of Appeal Registry were sent in triplicate and so they proceeded to include only part of the court notes and not all the notes.
17 .
We also note that the Court notes are necessary for canvassing claims advanced in the Appeal, providing a just opportunity to all parties in the Petition including the Respondents and the explanation preferred for the oversight is also reasonable. Therefore, no prejudice will be suffered by the Respondents if we allow the Application.
18 .
For the above reasons, we are inclined to allow the Application. The Applicants should bear the costs thereof.
D. Orders
19 .
Consequently, we make the following Orders:
i.
The Notice of Motion dated 11th of September, 2017 be and is hereby allowed.
ii.
The Applicants shall file and serve their Supplementary Record of Appeal within 7 days hereof.
iii.
The Applicants shall bear the costs of the Respondents in this Application.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/13/eng@2019-11-26
Application 3 of 2018,Getao v Mokare & 4 others (Application 3 of 2018) [2019] KESC 1 (KLR) (8 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",8 November 2019,2019.0,Nairobi,Civil,Getao v Mokare & 4 others,[2019] KESC 1 (KLR)               ,,"Upon perusing the amended Notice of Motion application dated and lodged in the Registry on 24th May, 2018 and filed under certificate of urgency for leave to lodge and serve an appeal out of time and for stay of execution against the decree and orders of the Environment and Land Court (Hon. J.M. Mutungi, J) made on 25th September, 2014 in ELC Civil Misc No.929 of 2012 pending the hearing and determination of the applicant’s intended appeal against the entire judgment and orders of the Court of Appeal made on 1st December, 2017 in Civil Appeal No. 361 of 2014. In the alternative, the applicant prays for an order that there be status quo prevailing prior to the ELC judgment of 25th September 2014. The application is premised on Article 159(2)(d) and 163(4) of the Constitution, sections 3, 21(2), 24(1) of the Supreme Court Act, Rules 3 and 53 of the Supreme Court Rules, 2012; and
2.
Upon reading the applicant’s supporting affidavit sworn on 24th May, 2018; and the written submissions filed by the applicant wherein it is contended that the delay in filing the appeal was occasioned by the Court of Appeal’s failure to provide certified copies of typed proceedings, despite having applied for the same vide a letter dated 6th December, 2017, the same day they filed a Notice of Appeal against the Court of Appeal decision, and further that the failure to file the appeal was as a result of inadvertence by the applicant’s advocates, whose mistakes should not be visited Upon the applicant; and
3.
Upon reading the applicant’s written submissions in reply to the 1st, 2nd and 3rd respondents’ Preliminary Objection wherein they submit that their intended appeal is anchored on the interpretation of the Constitution as stipulated under Article 163(4)(a) of the Constitution and section 15(2) of the Supreme Court Act, the applicant having filed a constitutional petition in the Environmental and Land Court being ELC Civil Misc. No. 929 of 2012 in which he sought the interpretation of Articles 27 on equality and freedom from discrimination, 40 on the right to own property, 47 on fair administrative action, and 50 on the right to be heard; and
4.
Upon reading the 1st 2nd and 3rd respondents’ Notices of Preliminary Objections dated and filed on 5th April 2018 and 19th July 2018 respectively, wherein they contend that this court lacks jurisdiction as per Article 163(3) and (4) of the Constitution and sections 15 and 16 of the Supreme Court Act to hear and determine the application; and
5.
Upon reading the 1st 2nd and 3rdrespondents’ submissions reiterating their objections that the application and intended appeal are incompetent and non-starter, the matter involving a personal and selfish interest that does not engage our jurisdiction, echoing the decision in Teachers Service Commission v Kenya National Union of Teachers & 3 others SC App. No. 16 of 2015 [2015] eKLR that the application should be dismissed and that the applicant nether meets this court’s principles for extension of time nor establishes the conditions for the grant of an order for stay of execution.","We have considered the application, preliminary objections and written submissions of the parties. The core of the application is whether to grant leave to file the intended appeal out of time and whether to grant stay of execution.
7.
On the first issue, it is apparent that the matter arose out of a petition for the interpretation and application of Articles 23, 27, 50, 63, 40, and 47 of the Constitution. This clothes us with jurisdiction as of right under Article 163(4)(a) of the Constitution. The preliminary objections in our view go to the merit of whether the issues raised qualify as constitutional matters and upholding them at this instance is premature as the issues raised can be sufficiently argued and considered in the substantive appeal. Back to the issue at hand, if the matter raised constitutional issues as contended, the applicant has not explained why he could not file his appeal, as he was obliged to, within the stipulated timelines under this court rules. He merely states that there was inadvertence on the part of his advocate, without elaborating. Does this reason, compel us to exercise our discretion in his favour?
8.
Without seeking to validate the inadvertence on the advocates’ part, we note that the delay in issue is 19 days as the appeal ought to have been filed by 28th January 2018 and the applicant filed his initial application for extension of time on 22nd February 2018. Moreover, it is uncontroverted that the applicant is yet to receive certified copies of proceedings, which remains a prerequisite for a record of appeal under the applicable rule of this court. We therefore find that the applicant has satisfied the threshold for us to exercise our discretion to extend time within which to lodge his appeal. Under the circumstances, we find it appropriate that the applicant meets the 1st 2nd and 3rd respondents’ costs for this application.
9.
On the second issue, we are guided by the conditions set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC App. No. 5 of 2014 [2014] eKLR. These are – arguability of intended appeal, whether the appeal would be rendered nugatory if the stay orders are not granted and if it is in public interest to grant the stay orders. It follows that the intended appeal raises arguable points, the merits of which we cannot venture in at this juncture. The interests of justice tilt towards the protection of the substratum of the matter. Should the appeal eventually not succeed, appropriate remedy will be granted at the time based on parties’ positions as presented during the prosecution of the appeal.
10.
From the foregoing, by a unanimous decision of this bench, pursuant to the provisions of sections 21(2) and 23(2)(b) of the Supreme Court Act, 2011 and Rules 21(1) and 53 of the Supreme Court Rules, 2012; we make the following Orders:
a.
The preliminary objections by the 1st respondent dated 5th April 2018 and by the 2nd and 3rd respondents dated 18th July, 2018 are hereby disallowed.
b.
The Application dated 24th May, 2018 is hereby allowed.
c.
The Applicant shall file its appeal within 7 days from receipt of the typed proceedings from the Court of Appeal;
d.
The Applicant to take measures towards pursuing the proceedings from the Court of Appeal in order to expedite the filing of the appeal;
e.
The Applicant to meet the costs of the respondents in this application.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/1/eng@2019-11-08
Petition 1 of 2018,Institute for Social Accountability & Centre for Enhancincing Democracy and Good Governance v Institute for Social Accountability & Centre for Enhancincing Democracy  and Good Governance (Petition 1 of 2018) [2019] KESC 90 (KLR) (8 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",8 November 2019,2019.0,Nairobi,Civil,Institute for Social Accountability & Centre for Enhancincing Democracy and Good Governance v Institute for Social Accountability & Centre for Enhancincing Democracy  and Good Governance,[2019] KESC 90 (KLR)               ,,"Upon perusing the Notice of Motion application dated 30th January, 2018 and lodged in the Supreme Court Registry on 31st January, 2018 for extension of time limited to file a Supplementary Record of Appeal under rules 3(5) and 53 of the Supreme Court of Rules 2012 against the entire Judgment and Orders of the Court of Appeal delivered on 24th November, 2017 in Civil Appeal No. 92 of 2015; and
2.
Upon reading the supporting affidavit by Michael Kioko Munguti sworn on 30thJanuary, 2018 and the written submissions filed by the applicants including the supplementary submissions in reply to those by the 1st and 4th respondents wherein it is contended that the delay in filing the supplementary record of appeal was occasioned by the Court of Appeal’s failure to provide its certified order and copies of typed proceedings, despite the applicants having applied for the same vide two letters dated 27th November, 2017 and 10th January 2018 respectively; and that having been aggrieved by the Court of Appeal decision they filed a Notice of Appeal on 27th November, 2017; that on the 2nd January 2018, the applicants lodged an appeal in this Honorable Court; that they filed this application for extension of time soon after the 15 day period within which to file a supplementary record of appeal thus demonstrating due diligence on their part especially given that the request is occasioned by circumstances that are beyond the applicants; and
3.
Upon reading the respective grounds of opposition and written submissions by the 1st respondent and 4th respondent wherein they contend that the application is an abuse of the process of this Honorable Court and should be dismissed as the applicants are yet to appear before a single judge at the Court of Appeal to canvass the issue of the documents which they seek to file and the motion in the Court of Appeal should as a matter of priority be allowed to run its full course; the application is ambiguous to the extent that the applicants seek leave for an open ended period; the applicants are not clear or certain on when they will file the supplementary record; and the orders the applicants are seeking at this juncture are speculative and premature as they could not seek leave to file documents that are not ready. In addition, they submit that the applicants have not complied with timelines set out in Rule 33(6) of this Court’s Rules and fault the applicants for relying on the supporting affidavit of Michael Kioko Munguti, who they submit is not a party to the proceedings or authorized to swear the affidavit on the applicant’s behalf.","Having Considered the question at the core of the application viz: whether on the basis of the rival affidavits and written submissions of the parties, the applicants herein, have made a compelling case for this Court to exercise discretion in their favor and thereby grant the orders sought, we are satisfied that the applicants satisfy the principles set out by this Court in the cases of Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others SC Application No.16 of 2014 [2014] eKLR and Hassan Nyanje Charo v Khatib Mwashetani & 3 Others SC Application No. 15 of 2014 [2014] eKLR on extension of time by this Court.
5.
The applicants took the necessary steps in requesting for the proceedings and the order from the Court of Appeal. They filed the notice of appeal and the appeal within time. Unlike the 4th respondent who agreed to the draft consent as presented by the applicants, it is the 1st respondent’s refusal that has necessitated the resultant process of having the matter placed before a single judge of the Court of Appeal without which the present application would not arise. The prayers sought are not speculative or open ended as they depend on a certain event by the Court of Appeal which is beyond the control of this Court or the applicants. In any event, we have a live matter in form of an appeal filed by the applicants before us which we shall have to dispose of it one way or the other, including when moved appropriately by any party.
6.
As for the supporting affidavit by Michael Kioko Munguti, we are not persuaded by the respondents’ argument that the said Michael Kioko Munguti is a stranger. His affidavit accompanies the formal application filed by the applicants as the actual litigants as an addition to the grounds set out on the face of the application and not the only ground. On considering the affidavit itself, the said Michael Kioko Munguti depones in paragraph 8 of his affidavit that he was instructed by counsel for the applicants. This is not rebutted by the respondents. Moreover, the matters to which he states are factual in nature and in his personal knowledge following instructions from counsel for the applicants. The annexed letters to the affidavit are made by the instructing advocate. We are therefore not persuaded by the respondents’ arguments on this matter.
7.
In the end, pursuant to the provisions of sections 21(2) and 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 53 of the Supreme Court Rules, 2012; we make the following Orders:
a)
The Application dated 30th January, 2018 is hereby allowed;
b)
The Applicant(s) shall file its Supplementary Record of appeal containing the Certified Order of the Court of Appeal and the typed proceedings within 7 days of receipt of those documents; and
c)
Costs shall be in the cause.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/90/eng@2019-11-08
Application 31 of 2018,Katana & 15 others v Mombasa Teachers Co-operative Savings &Credit Society Limited (Application 31 of 2018) [2019] KESC 91 (KLR) (8 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",8 November 2019,2019.0,Nairobi,Civil,Katana & 15 others v Mombasa Teachers Co-operative Savings &Credit Society Limited,[2019] KESC 91 (KLR)               ,,"The applicants, through their Notice of Motion filed under certificate of urgency seek the following orders that:
a)
The application be certified urgent and initial service be dispensed with in the first instance.
b)
The court be pleased to order a stay of the execution of the Order issued by the Court of Appeal on 2/10/2018, ordering the Applicants and other 200 families to be evicted through for and demolitions (sic), pending the hearing and determination of this application
c)
The Honorable court be pleased to extend time for filing the Notice of Appeal.
d)
The applicant be at liberty to file the Record of Appeal within 30 days of the Order in prayer (C) above (sic).
e)
Costs.
2.
The application is brought under section 24(1) of the Supreme Court Act and rule 53 of the Supreme Court Rules. It is premised on the grounds that the appeal involves the interpretation and application of the constitution as envisaged under Article 163(4)(a); that the respondent is threatening to execute the Court of Appeal order by eviction through violence making the applicants apprehensive; that the applicants have been in possession and undertaking farming on the suit property since 1960; that the court should exercise its discretion and extend time for filing the notice of appeal mainly because they had instructed their previous Advocates, Marende Birir & Company to file the Notice of Appeal and only realized on 2nd October 2018 that the same had not been filed when they were served with the Court of Appeal order and that the overriding objective of Court will not be achieved if the orders sought are not granted. The application is supported by the affidavit of the 1st applicant, Robert Muhambi Katana on his own behalf and on behalf of the other applicants.
3.
The applicants reiterate the above arguments through their written submissions and submit that this Court has jurisdiction to extend time and that they meet the applicable principles set out in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others SC Application No.16 of 2014 [2014]eKLR. They argue that the delay in filing the Notice of Appeal and the Appeal of approximately 4 months and 3 months respectively is not inordinate but excusable. In any event, they submit, the Court of Appeal order was not issued until 2nd October 2018. Further, they argue that this application was filed promptly and no party will suffer prejudice and public interest tilts in favour of allowing the application in order to settle the law in order to create a binding precedent on the law of adverse possession.
4.
The application is opposed by the respondent by way of a replying affidavit sworn by its Chairman, Jonah Makau Mutuku. He depones that no reasonable grounds for the unreasonable delay have been advanced and that the prayer for stay is baseless in the absence of a pending petition. He further states that the applicants’ claim was purely a land dispute on the basis of adverse possession and any constitutional aspect is an afterthought which cannot be raised at this stage not having been raised in the pleadings, at the High Court or Court of Appeal. Accordingly, the application does not meet the jurisdiction threshold under Article 163(4) of the Constitution and is merely aimed at denying the respondent and its members from enjoying their rights as registered proprietors furthering fruits of the Court of Appeal judgment.
5.
","Whereas the applicants seek to invoke article 163(4)(a) of the Constitution that the intended appeal is as of right, the applicants are not supported by the pleadings or the judgment. There is no evidence of any constitutional question having been raised and determined, or the same raising through the court hierarchy. Even if the applicants’ case is that the matter took a constitutional trajectory to warrant our jurisdiction as we held in Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 others Petition No.2B of 2014 [2014]eKLR the applicants have not demonstrated the same, having not cited any constitutional provision that is applicable either in the application or the draft petition. We agree with the respondent in this respect.
9.
Rule 31 of the Supreme Court Rules mandates any person who intends to appeal to file a notice of appeal within 14 days from the date of judgment. In this matter, judgment having been entered on 14th June 2018, the appellant ought to have filed its notice by 3rd July 2018. The applicants argue that they had engaged their previous lawyers. From the evidence annexed by way of receipt for fees paid, the same is issued by Marende Necheza & Company Advocates and not Marende Birir & Company as stated in the supporting affidavit. Moreover, the same is dated 23rd July 2018, which was 14 days after the date by which the Notice of Appeal was due and does not specify that the fees paid relate to the present matter. It was only on 22nd October 2014 that the application was filed through the firm of Karina & Associates Advocates now on record for the applicants. We are not in a position to discern what really happened between the applicants and their advocates. It is nevertheless apparent that the applicants were jolted into action by being served with the Court of Appeal order issued on 2nd October 2018.
10.
The filing of a notice of appeal is not dependent upon any other event and could be filed as a matter of course regardless of our appellate jurisdiction sought to be invoked. Whereas we are willing to indulge the applicants that they have acted promptly and their reason for delay, we are still not satisfied that the intended appeal raises constitutional questions as contended. The issue seems to be largely related to the applicability of the doctrine of adverse possession as against the registered proprietor of a parcel of land and how the same was applied to the facts of this matter. The doctrine of adverse possession is a fairly developed doctrine and the applicants have not made any spirited attempt to have the same declared unconstitutional as we expected of them.
11.
For this reason, we see no practical purpose to be served if we were to grant the applicant leave to file an appeal out of time. There must be some prospects that the intended appeal is sustainable on the jurisdiction invoked, which is lacking of the applicants herein. Having found as above, we do not find it necessary to consider the prayer for stay of execution as no appeal lies before us the basis upon which the application for leave would suffice.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/91/eng@2019-11-08
Petition 3 of 2016,Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Munyao & 148 others (Suing on their own behalf and on behalf of the Plaintiffs  and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) (Petition 3 of 2016) [2019] KESC 83 (KLR) (8 November 2019) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",8 November 2019,2019.0,Nairobi,Civil,Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Munyao & 148 others (Suing on their own behalf and on behalf of the Plaintiffs  and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) ,[2019] KESC 83 (KLR)               ,,"I. Introduction
1.
This is a Petition of appeal from the judgment of the Court of Appeal sitting in Malindi affirming the decision of the Environment and Labour Relations Court sitting in Mombasa (ON Makau J) dated 14th February, 2014. The appeal is founded on article 163(4) of the Constitution, as of right, and seeks this Court’s determination of the following questions:
a)
Whether articles 162(2)(a) and 162(3) of the Constitution as read together with section 12 of the Employment and Labour Relations Court Act, 2011 confers jurisdiction on the Employment and Labour Relations Court to hear and determine disputes between Pensioners (herein the “respondents”) and Trustees of a Pension Scheme (herein the “appellants”);
b)
Whether article 165(1) of the Constitution and section 60 of the 1963 Constitution (repealed) conferred the High Court with original jurisdiction to hear and determine disputes between the appellants and the respondents;
c)
Whether the appellants’ constitutional rights to have the dispute determined by a court or tribunal of competent jurisdiction under articles 47(1) and 50(1) of the Constitution was violated;
d)
Whether the Court of Appeal violated the appellants’ rights by proceeding to re-evaluate the evidence of a court which was not competent to hear and determine the dispute;
e)
Whether as a matter of law the honourable judges of the Court of Appeal erred by proceeding to determine matters not pleaded or canvassed in both the trial court and in the appellate court resulting in an infringement of the Appellant’s rights under articles 47(1) and 50(1) of the Constitution;
f)
Whether as a matter of law the Honourable Judges of the Court of Appeal erred by upholding the judgment and decree of the trial court that was incompetent to hear and determine the matters before it.","IV. Analysis
67.
This is another juridical moment when this Court is called upon to adjudicate and give guidance as the court of last resort on a matter having a central bearing in the daily lives of our senior citizens and the general work force. The subject dispute does not only bring into sharp focus the controversies surrounding the mismanagement of pension schemes but also beckons for settlement by this court of the constitutional questions as to the right adjudicatory fora and the jurisdictional limits of the superior courts in the resolution of disputes between pensioners or members, beneficiaries of a pension scheme, the Registered Trustees of the pension schemes, and the Sponsors of the schemes or employers in regard to the management of the pension schemes.
68.
Despite the abundance of arguments on other issues in this appeal, we shall for the purpose of this appeal restrict ourselves within the contours of the following issues for determination:
(a)
Supreme Court’s Jurisdiction over the dispute;
(b)
Which is the forum with original jurisdiction in the first instance to hear and determine the dispute between Pensioners and the Trustees of a Pension Scheme;
(c)
Whether in the circumstances of this case the appellants’ constitutional right to a fair hearing was violated;
(d)
Cross appeal;
(e)
Reliefs to be awarded if any.
a. Supreme Court’s jurisdiction
69.
We have time and again determined the question whether a litigant has properly invoked this Court’s jurisdiction under article 163(4)(a) of the Constitution. The established guiding principles were settled indeed in the cases of Hassan Ali Joho & another v. Suleiman Said Shahbal & 2 others, SC Petition No. 10 of 2013; [2014]eKLR and Erad Suppliers & General Contractors Ltd v National Cereals & Produce Board SC Petition No.5 of 2012; [2012]eKLR where we stated that an appeal lies to this Court under article 163(4)(a) if the issues placed before it revolved around the interpretation and application of the Constitution, and that the interpretation or application of the Constitution had formed the basis for the determinations at the superior Courts below this Court and the same issue had therefore progressed through the normal appellate mechanism to reach this Court.
70.
Further, in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another SC Petition No 3 of 2012; (2012) eKLR we pronounced ourselves as follows:
“
The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an Appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation.” (Emphasis ours)
71.
The above position was even more succinctly explained in Gatirau Peter Munya v Dickson Mwenda & 2 others SC Application No. 5 of 2014; [2014] eKLR and Hassan Ali Joho (supra) where it was stated that the lower Court’s determination of an issue appealed must have taken a trajectory of constitutional application or interpretation and an appeal within the ambit of article 163(4)(a) is one founded on cogent issues of constitutional controversy.
72.
In the case before us, the issue is the correct interpretation to be accorded to articles 162(2)(a) and 162(3) of the Constitution as read together with section 12 of the Employment and Labour Relations Court Act, 2011 on one hand and whether article 165 of the Constitution and section 60 of the 1963 Constitution (repealed) conferred the High Court with original Jurisdiction to hear and determine dispute between the appellants and the Respondents.
73.
A review of the record before us reveals that these legal questions were subject of litigation before the trial court and on the first appeal. Consequently, we are persuaded that this case is in accord with the laid down jurisprudence cited above and worthy of our admission and considering under the court’s jurisdiction reposed under article 163(4)(a) of the Constitution. We accordingly proceed to exercise our jurisdiction as sought.
b. Which is the forum with original jurisdiction in the first instance to hear and determine the dispute between Pensioners and the Trustees of a Pension
74.
Our critical examination of the recent decisions before the courts and quasi-judicial bodies in regard to disputes between members and beneficiaries of pension schemes and Trustees of the pension schemes reveals that despite the existence of sections 46(1) and 48(1) of the RBA Act, the High Court, the Employment and Labour Relations Court, the Retirement Benefits Appeals Tribunal and the CEO have heard and determined pension disputes involving retired employees.
75.
For instance, in Director of Pensions -v- Cockar (2000) 1 EA 37, a pension dispute arose between the appellant and respondent; a suit was filed at the High Court and a subsequent appeal was heard and determined by the Court of Appeal. In Teachers Service Commission -v- Simon P Kamau & 19 others, Civil Appeal No 300 of 2009, the respondents were retired teachers and the High Court and Court of Appeal heard and determined a pension dispute between the parties. In the High Court case of The Trustees of Teleposta Pension Scheme v Mackenzie M Mogere, Nairobi HC Civil Appeal No 141 of 2012, Mr Mackenzie complained that the appellant had calculated and paid him a retirement benefit using a wrong pension method, period or formula which led to a lower pension sum being offered to him. Mr Mackenzie complained to the Chief Executive Officer of the Authority who dismissed the complaint and he appealed to the Appeals Tribunal which found merit in his complaint. The Court of Appeal in Kenya Ports Authority -v- Industrial Court of Kenya & 2 others, Civil Appeal No 236 of 2012 held that pension disputes are not trade disputes and the Labour Court has no jurisdiction to hear pension disputes which is a jurisdiction reserved for the Authority.
76.
In Stephen Wahome Ihiga & 16 others v Retirement Benefits Authority & Kenya Airports Authority Staff Superannuation Scheme, Retirement Benefits Appeals Tribunal (RBAT) at Nairobi Civil Appeal No 3 of 2013, the members had appealed to the Tribunal alleging that the Authority and the Trustees of the pension scheme had failed to give the members annual pension increases as required by the law and for unlawfully and wrongfully applying the Trust Deed and Rules dated June 26, 2002 instead of the Trust Deed and Rules dated 2nd October, 2006 in the calculation of their benefits. The RBAT at Nairobi Civil Appeal Number 4 of 2013, Christopher Wachira Gathiteri & 2 others v Retirement Benefits Authority & Kenya Airports Authority Staff Superannuation Scheme, except for few allowances, this case bears a similarity with Stephen Wahome Ihiga & 16 others (supra). Other similar cases from the RBAT are Appeal No 5 of 2013 SMEP Staff Retirement Benefits Scheme v Retirement Benefits Authority, RBAT Appeal No 3 of 2010 Anne Wangui Ngugi & others v Retirement Benefits Authority, Kenya Commercial Bank Staff Retirement Benefits Scheme & Kenya Commercial Bank DC Scheme, RBAT Appeal No 8 of 2010, Elias Maina Murigi & 133 others v Retirement Benefits Authority, National Bank of Kenya Staff Retirement Benefits Scheme, Bank of Kenya Staff Pension Fund Registered Trustees & Alexander Forbes Financial Services (East Africa) Limited, and many others.
77.
What is emerging from the above observations is a situation where disputing parties have options to choose the forum to approach in the quest for justice which in our view is an injustice in itself and a mortification of our judiciary and the jurisdictional competence set by the Constitution in our judicial hierarchy. Such bridled state of events leaves the powers of the courts to the whims of judicial forum seeking litigants who practise before our courts to decide and choose at their own will the fora for dispute resolution in total disregard to the jurisdictional limits set out in the Constitution. It portends an imitable case of judicial forum shopping and an abuse of the court process.
78.
The blowback to this is the uncertainty in law created by the discordant and inharmonious manner in which similar disputes related to pensioners and Trustees of pension schemes have been adjudicated before our courts, tribunals and statutory bodies with quasi-judicial authority. Certainty in law enables planning of human affairs in reliance on the law, and the realization of expectations based on such planning. It makes for uniformity in the administration of justice, and prevents the unbridled discretion of the state organs mandated to perform judicial and quasi judicial functions.
79.
The place of certainty in law was explained in the decision of Sir Charles Newbold, P in Dodhia v National & Grindlays Bank Limited and another [1970] EA 195, where he pronounced himself in the following terms, thus:
“
A system of law requires considerable degree of certainty and uniformity and such certainty and uniformity would not exist if the courts were free to arrive at a decision without regard to any previous decision of its own.”
80.
As a basic principle, as a neutral arbiter, it should not be for the court to enter into the litigation forum and advise litigants in an adversarial system such as ours on how, when and where to ventilate their grievances, save for the Court to speak through its judgment. This Court, as the ultimate judicial forum and whose decisions are binding on all the courts as provided for under article 163(7) of the Constitution and with an obligation under section 3(a) of the Supreme Court Act 2011 (Act No 7 of 2011) to “assert the supremacy of the Constitution and the sovereignty of the people of Kenya and to provide authoritative and impartial interpretation of the Constitution, this Court therefore must safeguard the processes of administration of justice in this Country and by dint of section 3(d) to improve access to justice and to ensure that the administration of justice and judicial processes in the Country are in compliance with the Constitution and the primary laws regulation such processes.
81.
On the other hand, article 259(1) of the Constitution introduced a new approach to the interpretation of the Constitution. It decrees the Courts to interpret the Constitution in a manner that “promotes its purposes, values and principles, advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights, permits the development of law and contributes to good governance.” [Emphasis ours]
82.
The inference to be drawn from the above Constitutional provisions and case law is that in its constitutional mandate to develop the law, the Supreme Court will be occasionally and in momentous occasions called upon, as in this case, to settle the inconsistencies in the lower courts and thereby bring clarity, uniformity and certainty such as may stand as a constraint to the growth of the law. It is on the above legal principles and the constitutional mandate of this court that we have stated above that we undertake to settle the law in this regard.
83.
As already noted, it is imperative to consider each of these fora and its attendant jurisdiction over disputes.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/83/eng@2019-11-08
Application 34 of 2018,Onchiri (Suing on Behalf and in the Interest of 475 Person Being Former Inhabitants of KPA Maasai Village within Nairobi) v Kenya Airports Authority & 4 others (Application 34 of 2018) [2019] KESC 3 (KLR) (8 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",8 November 2019,2019.0,Nairobi,Civil,Onchiri (Suing on Behalf and in the Interest of 475 Person Being Former Inhabitants of KPA Maasai Village within Nairobi) v Kenya Airports Authority & 4 others,[2019] KESC 3 (KLR)               ,,"A. Introduction
1.
This is an application by way of a Notice of Motion dated 26th November, 2018 brought Under Article 163(4), (5) and (6) of the constitution, section 5 of the Supreme Court Act, rules 24, 3(1), 35(3) and 53 of the Supreme Court Rules. The application seeks the following orders:
a.
That the Application is urgent and should be dispensed with in the first instance.
b.
That this Honorable court be inclined to issue or order granting the Applicant leave to file an appeal out of time.
c.
That this honorable court do grant or order certifying that this matter raises issues of general public importance.
B. Background
i. Proceedings at the High Court
2.
The genesis of this cause is the evictions that took place in Maasai Village in Embakasi area of Nairobi County on the morning of 29th October, 2011 where the applicant together with many others had made their homes and complimentary social amenities. It is their case that they had settled in an area comprised in thirteen (13) titles from 1982, constructed permanent and semi-permanent dwelling houses, schools, churches, medical facilities and other establishments; that they enjoyed actual and uninterrupted possession for a period of 18 years; and that the Government also provided additional social amenities and security to the residents. However, on the 15th September, 2011 the Kenya Airports Authority (the 1st respondent) placed a notice which the applicant described as a reminder in the Daily Nation newspaper of 18th September, 2011 that read;
Notice to Vacate Illegally Developed and Encroached Portions of Kenya Airports Authority Land LR No. 21919 at Kyangombe, and Syokimau, Jomo Kenyatta International Airport and LR No. 209/13080 Mitumba Village at Wilson Airport.”
The notice required those who had encroached upon the identified parcels to vacate them within seven days of the reminder. The notice did not affect the applicant as the portions they occupied were only adjacent to LR No. 21919.
They nonetheless, through their advocate wrote to the 1st respondent drawing its attention to a pending suit being Petition No.103 of 2011 and the existence of an order therein in respect of the parcels of land adjacent to the parcels forming the subject matter of the notice. On the morning of 29th October, 2011 despite this letter, a battalion of police officers, said to be acting on the instructions of the 3rd respondent, officials of the 2nd respondent and other state officials descended on the applicant’s structures on the suit land with bulldozers and earth movers evicting the applicant and the families in occupation of the suit land, after razing to the ground their dwellings and all other amenities.","D. Analysis
23.
Rule 53 of the Supreme Court Rules, 2012 grants this Court discretion to extend time. It provides that “
“
the Court may extend the time limited by these Rules, or by any other decision of the Court.”
24.
It is the applicant’s submission that upon the Court of Appeal delivering its verdict on 24th March 2017, it filed a Notice of Appeal immediately. Nevertheless, the applicant claims that his delay in filing within the prescribed time is due to facts that were beyond his control and further that the delay was occasioned by the financial difficulties of the applicant and those on whose behalf the suit was instituted owing to their eviction. The respondents on the other hand oppose this application by stating that there has been inordinate delay by the applicant, he has not offered an explanation for the delay and they have also not complied with the proper procedure for seeking certification from the Court of Appeal in order to bring this matter to the Supreme Court.
25.
Rule 33(1) of the Supreme Court Rules thus provides:
“
An appeal to the Court shall be instituted by lodging in the Registry within thirty days of the date of filing of the notice of appeal-
a.
a petition of appeal;
b.
a record of appeal; and
c.
the prescribed fee”.
26.
Rule 33(4) of the Supreme Court Rules thus provides:
“
For purposes of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub-rule (3) and shall further contain the following documents relating to the appeal in the first appellate court—
a.
the certificate, if any, certifying that the matter is of general public importance;
b.
the memorandum of appeal;
c.
the record of proceedings; and
d.
the certified decree or order” [emphasis supplied].
27.
Further, Rule 33(6) of the Supreme Court Rules, provides as follows:
“
Where a document referred to in sub-rule (3) and (4) is omitted from the record of appeal, the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record of appeal.”
28.
Concerning extension of time, this Court has already set the guiding principles in the Nick Salat Case (supra) as follows:
“
.... it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.
.... we derive the following as the underlying principles that a Court should consider in exercising such discretion:
1.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;
2.
a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3.
whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;
4.
where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;
5.
whether there will be any prejudice suffered by the respondents, if extension is granted;
6.
whether the application has been brought without undue delay; and
7.
whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied]
29.
Further, in the case of County Executive of Kisumu case (supra), this Court emphasized the need for the applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court.
30.
In the present case, we note that there is no certificate of delay from the Deputy Registrar of the Court of Appeal.
31.
In considering the applicant’s explanation that there were financial challenges, we take note of the number of persons involved in the application vis-a-vis the requisite court filing fees and are not satisfied that the 476 of the affected parties could not raise the court registry filing fee which is about Kshs.1,500/-. Moreover, the applicant being represented by counsel, it is inconceivable that counsel would not have invoked the provisions of section 50 of the Supreme Court Act on proceedings in forma pauperis, which is designed to assist financially challenged litigants.
32.
Consequently, in light of all the above, it is our finding that the applicant has not satisfactorily explained the inordinate delay of twenty (20) months and has thus not met the threshold required for extension of time as per the guidelines/principles laid down by this court in the Nick Salat Case.
33.
We are thus inclined to*disallow the application for extension of time with costs against the applicant.
34.
Having said so, we now turn to the remaining prayer seeking to have the matter certified as that raising issues of general public importance. The applicant seems to invoke our jurisdiction under Article 163(4), (5) and (6) and section 5 of the Supreme Court Act. As rightly submitted by the 2nd respondent, section 5 of the Supreme Court Act and Article 163(5) and (6) of the Constitution do not suffice as they do not bear relevance in the matter at hand. This leaves us with Article 163(4) that grants us appellate jurisdiction from the Court of Appeal. This provision relates to our appellate jurisdiction in two respects – as of right and pursuant to certification as involving general public importance.
35.
We note that the matter originated by way of a petition for enforcement of fundamental rights and freedoms under several provisions of the Bill of Rights enshrined in our Constitution following a forceful eviction process that involved demolition and razing to the ground dwellings situated at Maasai Village along North Airport Road inhabited by the applicant, those he represents and their families with the aid of a battalion of police, bulldozers and earthmovers. The applicant had sought declaratory reliefs relating to violation of Articles 27, 28, 29, 31, 40, 3, 45, 47, 53, 54, 56 and 57. He had also sought other reliefs for injunction, restoration of property, compensation, general and exemplary damages.
36.
From the foregoing, we see no basis for the applicant failing to invoke Article 163(4)(a) of the Constitution to lodge his appeal as of right involving the application and interpretation of the Constitution. The enforcement of the Bill of Rights transcended to the Court of Appeal although the Court of Appeal noted that the dispute had been settled by consent, leaving only the question of damages for its determination. These damages may as well be considered in the context of violation of the applicant’s constitutional rights, the basis upon which the suit was instituted.
37.
However, even if the applicant opted to pursue his case under Article 163(4)(b) of the Constitution, as he seems to be doing and to which he is entitled, then it is clear, as we have stated in the past that such an application ought to be originated at the first instance before the Court of Appeal. In any event, should he be unsuccessful in that process, he retains further recourse to invoke our jurisdiction under article 163(5) of the Constitution to review such a decision by the Court of Appeal on certification. Unfortunately, the applicant makes no reference to this step or why he should be exempted from it, leading to our inevitable conclusion that the present application for certification before us is premature. We cannot therefore grant the said prayer as sought.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/3/eng@2019-11-08
Originating Motion 23 of 2017,Wandabusi & another v Attorney General for and on behalf of the Commissioner for Lands & 3 others (Originating Motion 23 of 2017) [2019] KESC 4 (KLR) (8 November 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",8 November 2019,2019.0,Nairobi,Civil,Wandabusi & another v Attorney General for and on behalf of the Commissioner for Lands & 3 others,[2019] KESC 4 (KLR)               ,,"The applicants in this matter filed an Originating Motion on 20th December 2017 seeking a review of the refusal to grant certification by the Court of Appeal at Eldoret in Civil Appeal No.118 of 2017, through it’s ruling delivered on 16th November 2017. The application is supported by respective affidavits by the applicants. The applicants also filed written submissions and a list of authorities on 14th September 2018.
2.
The applicants submit that the intended appeal involves a matter of general public importance that deserves to be admitted to appeal before this court and as such for it involves public land namely parcels numbers 1062 later subdivided into 6666 registered to Mohammed Noor, the 3rd respondent and 6668 registered to Bungoma County Council, which has since been succeeded by the Bungoma County Government under the new constitutional dispensation following the promulgation of the 2010 Constitution. The applicants seek restoration of the original title No. 1062 in their favour and faults the Court of Appeal for failing to take into account additional evidence introduced and allowed in which the 2nd respondent consented to giving back part of the said parcel to the applicants; that the judgment is a nullity having been delivered by a bench that included a judge who did not participate in the hearing of the appeal and that the application to the Court of Appeal was refused and rejected on wrong principles of law and fact.
3.
The applicants argue that their intended appeal meets the threshold for certification as laid down by this court in Hermanus Phillips Steyn v Giovanni G Ruscone Sup. Ct App No.4 of 2012 [2013]eKLR, Malcolm Bell v Daniel Toroitich Arap Moi & Another Sup. Ct Appl. No. 1 of 2013 [2013]eKLR and Town Council of Awendo v Nelson Oduor Onyango & 13 others Misc. Appl. No.49 of 2014 [2015]eKLR; that the County is registered as trustees for the benefit of the residents of Bungoma and the Bukusu people whose original land was taken including the deceased’s parcel; that the decision over the land will affect the many residents of Bungoma County who would otherwise be entitled to get the land as the 3rd respondent did; that the land might be put into public use by building a school or market or hospital and other public facilities or utilities; that the issue of other people whose land may have been taken and registered in the name of the County Council can assert their claim even after many years, needs to be considered and that the issue that the County Council recommended in their full Council meeting to give at least 1.5 acres of the suit land to the applicants as the original owners before the land adjudication process needs to be considered as binding on them.
4.
In response to the 2nd respondent’s ground of objection that the application is filed out of time, the applicants submit that the fourteen day rule under Rule 24(2) of this Court’s Rules is not mandatory as this Court has discretion to waive certain forms on the conduct of proceedings. The applicants cite this Court’s decisions in Telcom Kenya Limited v John Ochanda & 996 others [2015] eKLR and Dhanjal Investments Limited v Kenindia Insurance Company Limited Sup Ct. Civil Appl. No.39 of 2014 [2016]eKLR. With regard to failure to annex the decision of the High Court to the application for review of certification and the failure to put in written submissions in support of the application, the applicants submit that the same is not fatal and urge this Court to consider its duty to deliver substantive justice.
5.
Despite several mentions before the Hon. Deputy Registrar of this Court to ensure compliance by all the parties, only the 2nd respondent filed grounds of opposition, written submissions and a list of authorities all on 29th June 2018. It appears from the heading of the applicants’ pleadings that the 3rd respondent has already died. The 4th respondent no longer exists under the new constitution with the establishment of the Bungoma County Government, represented by counsel for the 2nd respondent. This effectively left the Hon. Attorney General as the party who has not complied with the directions issued by the Hon. Deputy Registrar.
6.
","Back to the issue of certification, we reiterate that the applicants have to demonstrate satisfactorily that there is a legal question the subject matter of which transcends the present litigation. We note that the Court of Appeal was not satisfied that the subject of the intended appeal is public land, the subject property having been compulsorily acquired. Instead, the learned Judges of Appeal discerned from the claim that the intended appeal relates to a dispute involving private interests of the deceased from which the applicants accrue their rights.
14.
We have perused the pleadings, the judgments by the High Court and by the Court of Appeal. Whereas, were it a fact that the subject property was public land could have been persuasive to warrant the grant of a certification, the applicants have fallen short of demonstrating the same to our satisfaction beyond a mere restatement that the intended appeal raises issues of general public importance. It is apparent that the basis of submissions and ultimate decision of this Court is likely to revolve around determination of the applicants’ rights over the suit property as opposed to the then County Council’s rights over the suit property. The following caution in our judgment in Dhanjal Investments Limited v Kenindia Insurance Company Limited Sup Ct. Petition No.7 of 2016 is imperative under the circumstances:
(67)
Having so stated, we must at this point remind parties that it is only the issues that are certified as being of great public importance that must form the basis for submissions and ultimately the decision of this Court. To frame certain issues as being of great public importance at the point of certification under Article 163(4)(b) of the Constitution and then submit on issues that are specific to the parties at hand with no public element exhibited is an abuse of Court process and may lead to the dismissal of an appeal.”
15.
On the new evidence adduced before the Court of Appeal, it was rather puzzling that despite the then County Council passing a resolution to award the applicants property, they went ahead to oppose the suit right from the High Court to this Court. As a public body, we expected them to conduct themselves better on the matter. As the evidence of the Council Minutes is not in issue in light of the Court of Appeal’s determination of the question before it, and the same being uncontested, we expected the 2nd respondent to adopt a more responsible approach towards the applicants in resolving the dispute at hand. For this, they have to bear their own costs before us.
16.
Based on the above findings and pursuant to the provisions of sections 21(2) and 23(2)(b) of the Supreme Court Act, 2011 and Rules 21, 24(5) and 53 of the Supreme Court Rules, 2012, we make the following Orders:
a)
The Originating Motion filed on 20th December 2017 is hereby disallowed.
b)
Each party to bear their respective costs in this application.
It is so ordered.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/4/eng@2019-11-08
Petition 17 of 2015,"John Florence Maritime Services Limited & Conken Cargo Forwarders Limited v Cabinet Secretary for Transport and Infrastructure, Attorney General, Kenya Maritime Authority & Office De Gestion Du Freit  Maritime (Ogefrem) (Petition 17 of 2015) [2019] KESC 20 (KLR) (Civ) (25 October 2019) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",25 October 2019,2019.0,Nairobi,Civil,"John Florence Maritime Services Limited & Conken Cargo Forwarders Limited v Cabinet Secretary for Transport and Infrastructure, Attorney General, Kenya Maritime Authority & Office De Gestion Du Freit  Maritime",[2019] KESC 20 (KLR)               ,,"The Appellants moved this Court invoking Article 163(4)(a) of the Constitution, Section 15 of the Supreme Court Act and Rules 9, 33 and 42 of the Supreme Court Rules 2012. They filed a petition of appeal dated 9th September, 2015 seeking the following orders:
a.
An order does issue restraining the 1st, 2nd and 3rd Respondents from levying any fees that are not provided for under the Bilateral Agreement dated 30th May, 2000, thereafter gazetted on 30th August, 2002, and more specifically restraining them from demanding for the payment of any monies, taxes or levies in addition to the collection of the commission specified of only 1.8% of the Gross Freight Charges paid by shipping lines on imported cargo destined for the Democratic Republic of Congo, and then only on the condition that all such payments must and shall be made or effected and receipted only to, and by the Merchant Shipping Office.
b.
A declaration be made that any provision(s) not having the force of Law in Kenya and which require the payment of anything over and above the sum of 1.8% of the Gross Freight Charges paid by shipping lines on imported cargo destined for the Democratic Republic of Congo are in contravention of the Petitioners’ fundamental rights and freedoms under Article 95 of the Constitution and are therefore null and void ab initio.
c.
A declaration that the Bilateral Agreement entered into on 30th May, 2000 and known as the “AGREEMENT ON MARITIME FREIGHT MANAGEMENT” is null and void and that its continued enforcement by any person as part of the Laws of Kenya contravenes the Petitioners’ fundamental rights and freedoms under Articles 2, 40, and 95 of the Constitution and are therefore null and void ab initio.
d.
A declaration be made that any and all provisos not having the force of law in Kenya and that contravene the Petitioners’ fundamental rights and freedoms under Article 95 of the Constitution be held to be null and void ab initio.
.e.
A declaration be made that any provisions of law that contravene the Petitioners’ fundamental rights and freedoms under Article 40 of the Constitution be held to be null and void ab initio.
f.
A declaration be made that any provisions of the Agreement that (sic) contravenes the terms of Article 2 of the Kenyan Constitution be held to be null and void ab initio.
g.
Such further and or other orders, directions or writs as the Court may deem fit, just and appropriate to grant.
h.
Costs of and incidental to the petition.
The petition is supported by affidavits sworn by Mr. Gilbert Ojwang and Mr. Joseph Gacheru who are Directors of the 1st Petitioner.
2.
Upon being served by the petition, the 3rd Respondent, Kenya Maritime Authority, filed a Notice of Motion application dated 4th October, 2015 seeking to strike it out. The application was grounded on the following, that:
i.
This Honourable Court does not have jurisdiction to entertain this appeal as it has not certified the same to be an appeal involving a matter of general public importance and there will not be any and/or any substantial miscarriage of justice if the appeal is not heard.
ii.
The intended appellant has not deigned it necessary to make an application either to this Honourable Court or to the Court of Appeal to have its intended appeal certified as an appeal involving a matter of general public importance.
iii.
The appeal has no reasonable prospects of success and will be a burden on the taxpayer as the petition in the High Court from which the appeal emanates, to wit, HC Constitutional Petition No. 64 of 2013, Mombasa is res judicata as the issues raised therein were directly and/or substantially in issue in Judicial Review Application No. 130 of 2011 and Court of Appeal Civil Appeal No. 42 of 2014.
iv.
The appeal is scandalous, frivolous and vexatious and would otherwise be an abuse of the court process.
It is this application for striking out of the Petition that is subject of this Ruling.
II. Litigation Background
3.
The Appellants are Kenyan registered companies carrying on the business of clearing and forwarding of imported goods within the Mombasa port. They claim that they ran into problems with the 4th Respondent, an agent of the Democratic Republic of Congo (DRC), in respect of all imported cargo destined for DRC.
4.
They argue that a bilateral agreement on Maritime Freight Management was entered into on 30th May, 2000 between Kenya and DRC. Under the agreement, Kenya was tasked with collection of taxes and levies for DRC through the 1st to 3rd Respondents. The agreement was to remain in force for a period of three years subject to a one-off renewal for a further period of three years. The agreement provided for the assessment, levying and collection of a commission to the tune of 1.8% of the gross freight charges on the imports.
5.
On 26th October, 2012 the 4th Respondent issued circulars to Shippers, Forwarders and Agents stating that effective 29th October, 2012, all payments for Fiche Electronique de Renseigment Certificate (“FERI”) as well as Certificate of Destination (“COD”) would be made to its account and that such payments were to be made in US Dollars only after all documents were submitted and validated at its offices.
6.
These new requirements aggrieved the Appellants who alleged that they were onerous and in blatant breach of the bilateral agreement and that the payments could only be collected by the 1st Respondent on behalf of DRC but not by payment to a private individual’s bank account in Italy. They also opined that the bilateral agreement should have been subjected to Parliamentary approval so as to form part of laws of Kenya, which was not the case, hence its enforcement amounted to a constitutional violation to the detriment of the Appellants.","V. Analysis
25.
The 3rd Respondent’s case is that the Appellants’ appeal raises no issue involving interpretation and application of the Constitution and as such this Court has no jurisdiction under Article 163(4)(a) of the Constitution to hear and determine that appeal. They also urge that neither has the appeal received certification by either the Court of Appeal or Supreme Court under Article 163(4)(b) of the Constitution.
26.
We reiterate that this Court’s appellate jurisdiction as exercised under Articles 163(4)(a) and 163(4)(b) are quite distinct. This dichotomy was outlined by the Court in the case of Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd. and J. Harrison Kinyanjui & Co. Advocates, SC Petition No. 3 of 2012, at para 20-21, thus:
“
At the outset, we consider it crucial to lay down once again the principle that only two types of appeal lie to the Supreme Court from the Court of Appeal. The first type of appeal lies as of right if it is a case involving the interpretation or application of the Constitution. In such a case, no prior leave is required from this Court or Court of Appeal.
The second type of appeal lies to the Supreme Court not as of right but only if it has been certified as involving a matter of general public importance. It is the certification by either Court which constitutes leave. This means that where a party wishes to invoke the appellate jurisdiction of this Court…….then such intending appellant must convince the Court that the case is one involving a matter of general public importance.”
27.
As the two kinds of appeals are different, where a party before the Court invokes a particular appellate jurisdiction, his/her appeal cannot be challenged on the premise that it does not meet the threshold of invoking the other parallel appellate jurisdiction. We would therefore examine the matter before this Court not on whether it meets the certification criterion, but whether it involves matters of constitutional interpretation and application. This is because the Appellants have been clear that their appeal is brought under Article 163(4)(a) of the Constitution. Consequently, we would disregard any submissions bordering on the need for or lack of certification.
28.
Urging lack of jurisdiction, the Respondents’ case is that the Appellants’ case before the High Court was struck out because it was found to be res judicata. The Court stated that the matter had purported to raise issues already raised and determined in an earlier case: JR Application No. 130 of 2011. This finding was upheld by the Court of Appeal. The Appellants’ response is an interesting one. They aver that the ruling striking out of their matter as being res judicata, is what they are aggrieved with, but on the basis that it denied them an opportunity to be heard. They contend that as a consequence of the res judicata finding, their right to a fair hearing under Article 50(1) of the Constitution was denied. This, they submit raised a constitutional matter under Article 163(4)(a) of the Constitution.
29.
We take note that we are dealing with an application to strike out an appeal for want of jurisdiction. Before the Court is not the determination of the substantive appeal. We are cognizant of the fact that we need to examine the Appellants’ appeal not on its factual merit, but within the legal lens of whether the appeal invokes this Court’s appellate jurisdiction under Article 163(4)(a), to wit: Is there a constitutional issue for determination in this matter?
30.
The Respondents’ answer to the above question is in the negative. They urge that res judicata is a common law principle that raises no constitutional question, that res judicata as a principle only aids the course of justice by ensuring finality in litigation. On the other hand, the Petitioners’ are emphatic that the way that principle was invoked and applied in this matter infringed on their constitutional right to be heard.
31.
Quite clearly, the contest before the Court is not on the principle of res judicata, per se. We find that no party is challenging the rationale or otherwise of this principle in this application. Hence, the Court will not belabor on what constitutes res judicata. It is worth stating that this Court has already pronounced itself on this res judicata principle in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another [2016] eKLR. The contention before this Court, therefore is that in its consideration of the principle of res judicata, the High Court did not grant the Petitioners a fair hearing. Is this a matter of constitutional interpretation and/or application?
32.
As to what constitutes a matter involving interpretation and application of the Constitution, the conventional approach is that a particular provision of the Constitution must have been in issue for an interpretation and/or application from the High Court and the Court of Appeal. However, that is not the final point of inquiry. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Application 5 of 2014, [2014] eKLR (The Munya I case) this Court developed a broader approach. Relying on its earlier decision in the Peter Oduor Ngoge v Francis Ole Kaparo & 5 Others, [2012] eKLR case, the Court stated at [paragraph] 69 thus:
“
The import of the Court’s statement in the Ngoge case is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the Court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.”
33.
Therefore, a pragmatic understanding of that jurisprudence is, that it is not only specific provisions of the Constitution that brings a matter under the ambit of Article 163(4)(a) of the Constitution. There may be other factors. This point was also well elaborated in the Hassan Ali Joho & another v Suleiman Said shabaal & 2 others, Petition No. 10 of 2013 (The Joho case), when this Court held as follows:
“
In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this Court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the Superior Courts and has progressed through the normal appellate mechanism so as to reach this Court by way of an appeal, as contemplated under Article 163(4)(a) of the Constitution. Indeed, ordinarily, in our view, a question regarding the interpretation or application of the Constitution may arise from a multiplicity of factors and interrelationships in the various facets of the law. Consequently, the Constitution should be interpreted broadly and liberally, so as to capture the principles and values embodied in it.”
34.
It therefore emerges that in evaluating whether a matter raises a constitutional issue of interpretation and/or application, this Court should not be narrow-minded in its inquiry. The quest for discovery should not start and stop with a determination of whether or not there is a specific provision of the Constitution that was at issue before the Superior courts. Instead, there is need for a holistic inquiry of all the various facets of the law as pleaded by the parties if they do indeed raise a constitutional question. This is the constitutional trajectory that requires a look at a Court(s)’ reasoning and even the processes and procedures adopted by a court in its proceedings.
35.
Consequently, to para-phrase what we laid out in the Joho case, a question regarding the interpretation and application of the Constitution may arise from a multiplicity of factors and not necessarily an interpretation and application of a specific provision of the Constitution. Upon consideration, we are inclined to find that the Appellants’ case fits this bill. While the High Court and Court of Appeal were only charged with a common law doctrine of res judicata, it is alleged that the manner in which the High Court applied the doctrine in its proceedings infringed upon Article 50(1) of the Constitution, by denying the Petitioners a right to be heard.
36
Such a contention by a litigant before this Court draws the Court’s attention particularly given the fact that the right to Fair hearing provided for by Article 50(1) of the Constitution is a non-derogable right under Article 25 of the Constitution. If the Petitioners’ contentions were to be found to have merit, then it cannot be otiose to conclude that, the determination of the High Court took a constitutional trajectory by infringing on a fundamental right. The Appellants’ allegations, if affirmed, would suffice to conclude that while the Court was considering the application of a common law doctrine of res judicata; its determination took a trajectory that infringed on Article 50(1) of the Constitution.
37.
To ably dissect and interrogate the Appellants’ case, this Court has to peruse the Record of Appeal filed alongside the Petition of Appeal. However, as a Court of law, such a venture can only be embarked on upon a satisfaction that this Court is ably clothed with jurisdiction, something the respondents have alleged this Court does not have. In determining whether the Court has jurisdiction in this matter, we take note that the Supreme Court is not only charged with the interpretation and application of the Constitution, but the protection of the Constitution as well.
38.
The Court has to be always cognizant of its mandate under section 3 of the Supreme Court Act, which mandate is partly effectuated via the appellate jurisdiction in Article 163(4)(a). This was well noted in the Joho Case thus:
“
(51)
In defending the Constitution and the aspirations of the Kenyan people, this Court must always be forward-looking, bearing in mind the consequences of legal uncertainty upon the enforcement of any provision of the Constitution. This aspect of defending the Constitution is replicated under Article 163 (4) (a), which allows appeals from the Court of Appeal to the Supreme Court as of right, in any case involving the interpretation or application of the Constitution. Such is the approach that this Court in hearing this appeal must seek to apply.
(52)
Applying a principled reading of the Constitution, this Court responds to the demands of justice by adjudicating upon issues that tend to bring the interpretation or application of the Constitution into question. However, it is to be affirmed that any appeal admissible within the terms of Article 163 (4) (a) is one founded upon cogent issues of constitutional controversy. The determination that a particular matter bears an issue or issues of constitutional controversy properly falls to the discretion of this Court, in furtherance of the objects laid out under Section 3 of the Supreme Court Act, 2011 (Act No. 7 of 2011).""
39.
It again follows that a determination of whether a matter has met the appellate jurisdictional threshold embodied in Article 163(4)(a) of the Constitution is not based on principles cast in stone. This is a discretionary mandate and power that the Supreme Court exercises judiciously on a case to case basis. Therefore, where a litigant before this Court alleges that in exercise of their constitutional mandates the Superior Courts contravened the Constitution in the conduct of their proceedings, in protecting the Constitution that is the embodiment of the aspirations of the People of Kenya, this Court may assume jurisdiction to correct such an anomaly.
40
It should be noted that it does not follow as a matter of cause that where a litigant, like the Appellants before us, files a Petition of appeal, which appeal prima facie triggers the discretion of this Court and the Court assumes jurisdiction, that that appeal must succeed. Assumption of jurisdiction is a legal question at the discretion of this Court. On the contrary, succession or otherwise of an appeal is a factual issue determined on merit on the basis of the peculiarity of each case and how those facts are applied to the law.
41.
In this matter, we find that the appeal before this Court raises a novel and prima facie issue that rightly invokes this Court’s jurisdiction under Article 163(4)(a) of the Constitution. A perusal of the Petitioners’ case reveals that there is an allegation that the manner in which the High Court determined the question of res judicata was somehow summarily and unprocedural. That while a Preliminary Objection was raised; the same was not based on a pure point of law within the jurisprudence of Mukisa Biscuit Manufacturing Co Ltd –vs. - West End Distributors (1969) EA 696 as regards the nature of a Preliminary Objection. It is contended that the respondents raised the issue of res judicata, which issue needed material determination by a court of law through presentation and examination of material evidence, something that the Petitioner alleges was not done by the High Court. Further it is contended that while there were allegations of the Appellants being parties to the previous case, no material evidence was provided to confirm that indeed the Appellants were parties.
42.
We find that these issues as framed fall squarely within this Court’s appellate jurisdiction in Article 163(4)(a) of the Constitution and calls for the Court to exercise its discretion by taking up the matter. Once the Court assumes jurisdiction, it will then be able to consider the singular question which we consider correctly raises a matter constitutional interpretation and application before this Court, to wit: did the High Court procedurally consider the plea of res judicata or did it infringe on the Appellants’ right to fair hearing in the res judicata proceedings, hence condemning them unheard?",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/20/eng@2019-10-25
Petition 17 of 2019,Mulima & 2 others (Suing as Representatives of Ex-East African  Airways Staff Welfare Association) v Attorney General & 8 others (Petition 17 of 2019) [2019] KESC 2 (KLR) (25 October 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",25 October 2019,2019.0,Nairobi,Civil,Mulima & 2 others,[2019] KESC 2 (KLR)               ,,"A. Background
1.
On 2nd August 2019, the second to sixth Respondents (the Applicants) filed an application dated 29th July 2019, seeking amongst other prayers, the striking out of the Petition filed by the Petitioners on 10th May 2019. The application is premised on the grounds, inter alia, that the record of appeal filed by the Petitioners did not contain a certified copy of the decree or order from the Court of Appeal and is therefore defective for failing to comply with the provisions of Rule 33(4)(d) of the Supreme Court Rules, 2012 (the Rules).
2.
The Applicants further contend that the Petitioners did not comply with Rule 33(6) of the Rules by failing to file a supplementary record of appeal to include the missing certified copy of the order or decree of the Court of Appeal.
3.
The Applicants furthermore argue that, while the Court of Appeal Judgment was delivered on 24th February 2017, the Petitioners had failed to extract the relevant order for over two (2) years which inaction is inexcusable.
4.
It was also contended that the omission to include a copy of the certified order or decree of the Court of Appeal is fatal and inexcusable, as the Rules impose a mandatory obligation on the Petitioners to include such a the certified order or decree.
5.
The application is supported by an affidavit sworn on 29th July 2019 by the Legal Counsel of the sixth Applicant, Ms. Nereah Okanga, for and on behalf of the other Applicants. The deponent reiterates the grounds stated to be in support of the application.
B. The Applicants’ written submissions
6.
The Applicants’ written submissions are dated 29th July 2019 and filed on 2nd August 2019. They submit in that regard that the omission by the Petitioners to include a copy of the decree or order of the Court of Appeal is inexcusable, and that they ought to have prepared themselves adequately before lodging an appeal to this Court.
7.
The Applicants in that regard rely on the decision of this Court in Law Society of Kenya v Centre for Human Rights & Democracy [2014] eKLR where it was held that the use of the word ‘shall’ in Rule 33(1) of the Rules suggests the mandatory nature of the said Rule which therefore requires strict adherence and compliance with all the components thereof. They also rely on Abok James Odera t/a J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR in arguing that the omission is in breach of the overriding objectives of the Supreme Court Act from which the Rules are derived.
8.
It was further submitted that Article 159(2)(d) of the Constitution is not a panacea for all procedural shortcomings, and that the mandatory nature of Rule 33(4)(d) aforesaid is not an issue of procedural technicality, but one of procedural substance. It was thus submitted that the Petitioners have exhibited scant respect for the Rules and procedures of this Court, and cannot therefore plead and rely on Article 159(2)(d) of the Constitution as the answer to their inaction. They furthermore rely on the decision of Sammy Kemboi Kipkeu v Bowen David Kagongo & 2 Others [2018] eKLR to advance the same argument.","(D) Determination
16.
Upon careful consideration of the application, the submissions in support thereof and the response by the respective parties, the issue arising for determination is whether the Petition as filed is incomplete and incompetent for failing to comply with the provisions of Rules 33(4)(d) and 33(6) of the Rules.
17.
In that context, it is common cause that the notice of appeal and subsequent record of appeal were both filed timeously by the Petitioners on 10th May 2019. It is also common cause that the Petitioners’ record of appeal does not contain a copy of the certified decree or order from the Judgment of the Court of Appeal delivered on 24th February 2014.
18.
In determining the above issue, we note that Rule 33(4) provides that a record of appeal filed in this Court shall contain, inter alia, the following documents;
(a)
the certificate, if any, certifying that the matter is of general public importance;
(b)
the memorandum of appeal;
(c)
the record of proceedings; and
(d)
the certified decree or order.
19.
We have previously held in Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others Petition (Application) No. 38 of 2018 that where a required document is lacking in the record of appeal, devoid of a sufficient explanation for the omission, then the said record is one for striking out. Have the Petitioners offered a plausible explanation for the omission of the decree or order of the Court of Appeal?
20.
We note in that regard that, on 22nd January 2018, the Petitioners wrote to the Applicants enclosing a copy of a draft decree for their approval. The Applicants responded to the Petitioners’ letter on 2nd February 2018 stating that the decree was erroneous and proposed amendments to the same. On 30th April 2019, the Petitioners wrote another letter to the Applicants and the first Respondent enclosing a draft decree for their approval. The Applicants responded to the letter on 6th May 2019 again rejecting the draft order as in their view, it was not in accordance with the Judgment of the Court of Appeal. On 13th May 2019, the Applicants finally wrote to the Petitioners approving the draft decree that the latter had previously sent to the parties on 9th May 2019. On 5th June 2019, the Petitioners then wrote to the Registrar of the Court of Appeal seeking to be issued with the extracted decree and order of the Court.
21.
From a careful perusal of the chronology of events that took place between 24th February 2014 and 10th May 2019, it is therefore deducible that the Petitioners engaged both the Applicants and the Registrar of the Court of Appeal on various occasions seeking to obtain a decree or order of the Court of Appeal. It is also deducible that the Applicants were aware that the Petitioners were making efforts to obtain a decree or order from the Court of Appeal, and had on several occasions sought to reach an agreement with them on the contents of the draft decree and order.
22.
Although not similar in substance, but definitely similar in principle, we held in Hassan Nyanje Charo v Khatib Mwashetani & 3 others [2014] eKLR that when a party fails to show that there was diligence on its part in trying to obtain proceedings, or that there was no assertion made by any of the other parties as to the industry of a party in seeking to obtain proceedings, this Court would uphold the assumption that all measures had been taken by the party to obtain the said proceedings, and that the encumbrance upon them in obtaining such proceedings was not of their own doing.
23.
In the instant matter, the Petitioners have adduced evidence that they sought, albeit unsuccessfully, to obtain a certified decree or order of the Court of Appeal. Even though there is no certificate from the Registrar of the Court of Appeal supporting or refuting this claim, it is still evident that the Petitioners took all necessary steps to obtain the said decree or order. The omission in filing the said decree or order cannot therefore be wholly attributed to the Petitioners. The Registrar of the Court of Appeal is certainly culpable of aiding this failure to obtain the certified decree or order, and as such, the Petitioners should not be punished for the indolence of the Court of Appeal’s staff and its administrative machinery.
24.
Further, this Court has the discretionary power under Rule 33(5) of the Rules to determine whether a matter before it can proceed without particular documents. That is why in Sammy Kemboi Kipkeu v Bowen David Kagongo & 2 Others (supra), we held that Rule 33(4) does not make a mandatory requirement for the proceedings or notes of a Judge from an appellate Court to be included in a record of appeal. And that the applicability of the requirement for such proceedings would only be mandatory under Rule 33(3)(h) of the Rules when appealing from a Court exercising original jurisdiction. In that case, we exercised discretion in favour of a party which had tendered a reasonable explanation for failure to file proceedings. The same principle applies to the present case albeit not in similar circumstances.
25.
Furthermore, in Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others (supra) we rendered ourselves as follows;
“
(18)
… Indeed as the learned appellate Judge stated “this Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. However, in enforcing adherence to the Rules, this Court has discretion in the interest of justice. In the Obado case, despite the Notice of Appeal having not been served at all, the Court considered that no prejudice had been occasioned to the Respondent(s) and excused the same.”
26.
In reiterating the above decision, we note that the Applicants have not shown or established what prejudice they would suffer should this Court choose to exercise its discretionary power under Rule 33(5) of the Rules to disregard the inclusion of the decree or order of the Court of Appeal in the record of appeal under Rule 33(4)(d) of the Rules.
27.
The upshot of our findings above is that, while the non-filing of a document mentioned in Rule 33(4)(d) without explanation would otherwise be fatal and the whole record of appeal would attract the strict sanction of striking out, a party that explains itself sufficiently for an omission would be the beneficiary of a favourable exercise of discretion by this Court. Further, where no prejudice is shown to be caused to the opposing party, the exercise of discretion would even be more warranted. The petitioners in this case, on both fronts, are deserving of that discretion.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/2/eng@2019-10-25
Application 21 of 2017,Musungu v Chesoli & another (Application 21 of 2017) [2019] KESC 19 (KLR) (25 October 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",25 October 2019,2019.0,Nairobi,Civil,Musungu v Chesoli & another,[2019] KESC 19 (KLR)               ,,"
A. Introduction
1.
This is an application by way of a Notice of Motion dated 14th November, 2017 seeking a review of the decision of the Court of Appeal (D.K Musinga & S. Gatembu Kairu JJA & A.K Murgor) dated 25th May, 2017 which refused to certify the cause as a matter of general public importance The application seeks the following substantive orders:
a)
That this Honourable Court be pleased to review and/or set aside the Court of Appeal Ruling in Eldoret Civil Application Number 68 of 2016;
b)
That this Honourable Court be pleased to grant leave to the Applicant to lodge an appeal against the judgment of the Court of Appeal given on 29th July, 2016 in respect of Eldoret Civil Appeal No. 58 of 2013;
c)
That a certificate does issue on the basis that a matter of general public importance is involved and a substantial miscarriage of justice shall occur to the Applicant unless the intended appeal to this Honourable Court against the judgment of the Court of Appeal dated 29th July, 2016 in Eldoret Civil Appeal Number 58 of 2013 is heard;
d)
That a stay of execution of the Bill of Costs of the Court of Appeal be extended until this matter is determined by this Honourable Court;
e)
That status quo of the High Court judgment where it is the Applicant to remain in the suit land is maintained until this Honourable Court determines this matter;
f)
That an inhibition Order is put on the Title Ndivisi/Ndivisi/64 to avoid any transaction on this title until this Honourable Court determines this matter;
g)
That the Director of Public prosecution investigates the fraudulent acquisition of the Title Ndivisi/Ndivisi/64 to the 1st Respondent herein and reports back to this Honourable Court;
h)
That the Land Registrar avails to this Honourable Court all documents used to issue title No. Ndivisi/Ndivisi/64 to the 1st Respondent herein; and
i)
That the costs of this application be in the cause.
2.
The application is premised upon forty (40) grounds in the body of the application and the supporting affidavit of Paul Khakina Musungu sworn on 14th November, 2017. In opposing the application, the 1st Respondent filed grounds of opposition, a replying affidavit and written submissions dated 11th January, 2018.","D. Analysis
14.
Appeals from the Court of Appeal to this Court lie upon certification, on the basis that a matter is one of general public importance as per Article 163(4)(b) of the Constitution.
15.
Further, Section 16 of the Supreme Court Act, permits the Supreme Court to grant leave to appeal to the Court, where the appeal involves “a matter of general public importance”. Section 16 provides thus:
“
(2)
It shall be in the interest of justice for the Supreme Court to hear and determine a proposed appeal if –
(a)
the appeal involves a matter of general public importance”
16.
Additionally, Rule 24 of the Supreme Court Rules, 2012 provides as follows:
“
(1)
An application for certification shall first be made in the court or tribunal it is desired to appeal from.
(2)
Where the Court of Appeal has certified a matter to be of general public importance, an aggrieved party may apply to the Court for review within fourteen days.
(3)
The Court shall in granting the certification review matters that have been certified to be of general public importance.”
17.
This Court has set the test applicable in determining whether a matter is of general public importance in the Hermanus Steyn Case. The Court outlined the governing principles as follows:
(i)
for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
(ii)
where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;
(iii)
such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination;
(iv)
where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;
(v)
mere apprehension of miscarriage of justice, a matter most apt for resolution in [other] superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution;
(vi)
the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought;
(vii)
determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.”
18.
We have considered the Notice of Motion, alongside the submissions made before this Court, the Replying affidavit and grounds of opposition by the 1st Respondent, and the governing law on such a matter, the principles set down by this Court in Hermanus Steyn Case, and concluded that the proposed appeal is not one fit for admission before this Court. We have already decided in the Malcom Bell Case that questions of adverse possession fall outside this Court’s Appellate jurisdiction. We therefore see no basis at all for admitting the appeal for further consideration and are persuaded to agree with the Court of Appeal’s ruling of 25th May, 2017.
19.
The effect of the above is that we are inclined to disallow the application dated 14th November, 2017.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/19/eng@2019-10-25
Reference 2 of 2017,"Council of Governors v Attorney General, The Senate, Law Society of Kenya, Intergovernmental Relations Technical Committee, Commission on Revenue Allocation, Controller of Budget, County Assembly Forum & Katiba Institute (Reference 2 of 2017) [2019] KESC 92 (KLR) (Civ) (18 October 2019) (Ruling)",Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",18 October 2019,2019.0,Nairobi,Civil,"Council of Governors v Attorney General, The Senate, Law Society of Kenya, Intergovernmental Relations Technical Committee, Commission on Revenue Allocation, Controller of Budget, County Assembly Forum & Katiba Institute",[2019] KESC 92 (KLR)               ,,"I. Background
1.
The Applicant, the Council of Governors (CoG), moved the Court on 26th April, 2017 by filing a Reference dated 19th April, 2017 invoking this Court’s Advisory Opinion jurisdiction under Article 163(6) of the Constitution.
2.
In laying a basis for the Reference, the Applicant averred that it receives funding from the Exchequer through allocations for operationalization of devolution activities from the Ministry of Devolution and Planning (MoDP) informed by Section 37 of the Intergovernmental Relations Act No 2 of 2012 (IRA). It however contended that the funds received are inadequate to finance all its activities and to bridge this financing gap, it works in partnership with the County Governments and development partners. However, it was contended that County Governments have been facing challenges in justifying the intergovernmental relations contributions to the Applicant and most recently the Senate Public Accounts and Investments Committee in a Report, recommended ten (10) Governors for prosecution for violating the law by making payments to the Applicant.
3.
As a consequence thereof, the Applicant has sought an advisory opinion of this Honourable Court on the following matters:
(a)
Whether the functions of the Council of Governors as stipulated under Section 20 of the Intergovernmental Relations Act No. 2 of 2012 is of a similar nature or in tandem with the functions of the County Government as enshrined in the Fourth Schedule, Part 2 of the Constitution 2010.
(b)
Whether the intergovernmental relations contributions made by the County governments to the Applicant are unconstitutional.
(c)
Whether pursuant to Section 37 of the Intergovernmental Relations Act, the fundings for the activities of the Council of Governors are restricted to annual allocations from the National Government notwithstanding the inadequacy of the said fund.
(d)
Whether on the strength of Section 37 of the Intergovernmental Relations Act the national government is under obligation to provide adequate financial provisions for operations of the Applicant.
4.
The Reference application was supported by an affidavit sworn by one, Peter Gatirau Munya (the then Chairperson of the Applicant) on 19th April, 2017.
","IV. Analysis & Determination
39.
In our view, there is only one fundamental question to answer: whether the Applicant, COG, is a State Organ within the provisions of Article 260 of the Constitution so as to be clothed with the locus standi to seek an advisory opinion before this Court.
a) Is the Applicant a state organ?
40.
The provisions of Article 163(6) of the Constitution as regards this Court’s jurisdiction have been settled in a number of cases. In Re the Matter of the Interim Independent Electoral Commission the Court, for the first time, expounded on this provision as follows [para.83]:
(i)
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be ‘a matter concerning county government.’ The question as to whether a matter is one ‘concerning county government’ will be determined by the Court on a case-by case basis.
(ii)
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or a county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae.
(iii)
The Court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court….
(iv)
Where a reference has been made to the Court the subject-matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the Applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion. In addition, the Applicant maybe required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial Court process.”
41.
In this matter, it is common ground that CoG is neither the national government nor is it among the 47 county governments as known to the Constitution. While it insists, with the support of Katiba, that it is a State organ as it is a body established under the Constitution and/or is an agency of the 47 county governments, the other parties are adamant that it is not a State organ. Who then is a State organ? Article 260 defines a State organ in the following terms:
‘State organ’ means a commission, office, agency or other body established under this Constitution”
Does the Applicant meet this definition? Again, quite clearly, the Applicant is not a commission or an office under the Constitution. This leaves us with the single thread that the Applicant and Katiba are hanging on; that it is a body or agency established under the Constitution. In so doing, they have rendered a lot of premium on the phrase “under this Constitution”. This calls for determination of the question whether there is indeed a need to define this phrase as urged by the Applicant.
42.
Under Article 2(1), the Constitution is the Supreme law of the land. Article 259 of the Constitution then gives the approach to be adopted in interpreting the Constitution, basically in a manner that promotes its purposes, values and principles. Suffice it to say that in interpreting the Constitution, the starting point is always to look at Article 259 for it provides the matrix, or guiding principles on how it is to be interpreted and then Article 260 where specific words and phrases are interpreted. It is imperative to note that while Article 259 deals with construing of the Constitution and outlines the principles that underpin that act; Article 260 deals with interpretation, that is, it is explicit in assigning meaning to the words and phrases it addresses. Hence the opening words in that Article are: “In this Constitution, unless the context requires otherwise-”.
43.
Consequently, in search of the meaning assigned to some words and phrases as used in the Constitution, one needs to consult Article 260 to find out if that particular term or phrase has ALREADY been defined. It is only where the same has not been defined that the Court will embark on seeking a meaning by employing the various principles of constitutional interpretation. So that in looking for the meaning of a particular word or phrase in the Constitution one will go to Article 260 for ‘Interpretation”. For example in defining the word ‘adult’, the Constitution states thus: “adult” means an individual who has attained the age of eighteen years. As explicit as that is, the search for the meaning of the word ‘adult’ will end there. Where the meaning is provided in terms of a collectivity of acts and things, the Constitution in Article 260 is also clear, for instance: “affirmative action” includes any measure designed to overcome or ameliorate an inequity or system denial or infringement of a right or fundamental freedom”. So that in giving meaning to words and phrases under the Constitution, Article 260 is direct in using the term ‘means’ and also deductive in using the term ‘includes’.
44.
With this clear provision in the Constitution, we would have thought that the definition of a State organ was clear and settled by the definition in the Constitution. However, the Applicant and more so, Katiba seem to have a different opinion. They call upon us to define the term “established under this Constitution” broadly.
45.
But even as we consider the Applicant’s and Katiba’s invitation aforesaid, we cannot disengage from the guiding principles in Article 259 of the Constitution on how our Constitution should be construed. The centrality of Article 259 has been aptly stated in the persuasive decision of the High Court in Apollo Mboya v Attorney General & 2 others [2018] eKLR, thus:
20.
It is useful to bear in mind that Article 259 of the Constitution introduced a new approach to the interpretation of the Constitution. It obliges courts to promote 'the spirit, purport, values and principles of the Constitution, advance the rule of Law, Human Rights and fundamental freedoms in the Bill of Rights and contribute to good governance, an approach has been described as 'a mandatory constitutional canon of statutory and Constitutional interpretation'. The Article imposes a mandatory duty upon everyone to adopt an interpretation that conforms to Article 259.
21.
It is also an established principle of interpretation that Constitutional provisions must be construed purposively and in a contextual manner. Courts are constrained by the language used. Courts may not impose a meaning that the text is not reasonably capable of bearing. In other words, interpretation should not be “unduly strained.” It should avoid “excessive peering at the language to be interpreted.”
46.
This Court indeed alluded to the purposive interpretation of Statute in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, [2014] eKLR, where it opined that a purposive interpretation should be given to statutes so as to reveal their true intention. The Court observed as follows:
In Pepper vs. Hart [1992] 3 WLR, Lord Griffiths observed that the “purposive approach to legislative interpretation” has evolved to resolve ambiguities in meaning. In this regard, where the literal words used in a statute create an ambiguity, the Court is not to be held captive to such phraseology. Where the Court is not sure of what the legislature meant, it is free to look beyond the words themselves, and consider the historical context underpinning the legislation. The learned Judge thus pronounced himself:
The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted’.”
47.
The persuasive decision of the Court of Appeal in County Government of Nyeri & Another v Cecilia Wangechi Ndungu [2015] eKLR is also illuminating where it was held that:
Interpretation of any document ultimately involves identifying the intention of Parliament, the drafter, or the parties. That intention must be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim and purpose. To that extent, almost every issue of interpretation is unique in terms of the nature of the various factors involved. However, that does not mean that the court has a completely free hand when it comes to interpreting documents; that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as can be attained, bearing in mind that each case must be resolved by referen1ce to its particular factors.”
48.
Consequently, laying credence to Article 259 of the Constitution in this matter, we place specific emphasis on Article 259(2) which provides:
""If there is a conflict between different language versions of this Constitution, the English language version prevails.”
In citing Article 259(2), we are not in any way suggesting that there are different language versions of the Constitution that have been submitted before us. On the contrary we are only noting the significance of the English language as the authoritative language to the interpretation of the Constitution. Hence words have to be assigned their meaning as assigned in the English language. It therefore also follows that where a word is used in the Constitution and it appears that a different meaning is created to the known English meaning, then one has to fall back to the known English version meaning of that word. It is on this basis that, as a Court we fall back to the dictionary English meaning of the word ‘under’ as used in Article 260 of the Constitution.
49.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/92/eng@2019-10-18
Petition 21 of 2017,Khalid & 16 others v Attorney General & 2 others (Petition 21 of 2017) [2019] KESC 93 (KLR) (18 October 2019) (Judgment),Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu",18 October 2019,2019.0,Nairobi,Civil,Khalid & 16 others v Attorney General & 2 others,[2019] KESC 93 (KLR)               ,,"I. Introduction
1.
This is an appeal filed as of right under article 163(4)(a) of the Constitution against the decision of the Court of Appeal at Nairobi ( Makhandia, Ouko & M’Inoti JJ A ) dated September 22, 2017 in Civil Appeal No 1 of 2015. The appellants seek several declaratory reliefs against alleged violations of their constitutional rights arising from their participation in a demonstration dubbed “ Occupy Parliament ” held on May 14, 2013. In particular, they seek the following orders:
(i)
This Appeal be allowed.
(ii)
A declaration that the arrest and detention of the appellants violated their rights under articles 29, 32, 33, 36, 49 and 50 of the Constitution hence it was unconstitutional.
(iii)
A declaration that the charges leveled against the appellants are illegal and unconstitutional because they fail to meet the standards set out in article 50 of the Constitution.
(iv)
An order to bring to the Supreme Court for quashing of the trial of Criminal Case No 685 of 2013 (Republic v William Omondi and 16 others).
(v)
A declaration that sections 78(1) and (2) and 94(1) of the Penal Code cap 63 of the Laws of Kenya are unconstitutional therefore null and void.
(vi)
Costs of this Appeal.
(vii)
Any other or further relief that this Honourable Court may deem fit and just to grant.
II. Background
2.
The appellants, together with other members of the Civil Society Organization, and some members of the public organized demonstrations dubbed “Occupy Parliament’ to protest the actions of the then Members of Parliament (MPs) to scrap out the Salaries and Remuneration Commission (SRC) and inflate their salaries and benefits. They duly notified the 2nd respondent of their intentions, and he did not raise any objection.
3.
On May 14, 2013, the demonstrations started at Freedom Corner in Uhuru Park, Nairobi, through the streets of the City. Reaching Parliament buildings, the demonstrators sat down and some of them made speeches criticizing the alleged greed and actions of the MPs. By the gates of Parliament were pigs on whose bodies were painted a ‘corruption’ of the initials “MP” to “MPigs” and names of some Members of Parliament.
4.
Later on, the demonstrations were dispersed by the police with the appellants being arrested. They were detained at Parliament Police Station until the hour of 7pm when they were informed that they will be charged with the offence of cruelty to animals. It is alleged that during the period of detention, the appellants and their counsel were given conflicting information relating to the action the police intended to take; ranging from being told they would be released unconditionally, charged with offences relating to cruelty to animals, or charged with offences relating to offensive conduct conducive to a breach of peace. They were subsequently released on free bond and required to report back to Parliament Police Station on 17th March 2013.
5.
On March 17, 2013, on return to the police station, they were instructed to report to the Chief Magistrate’s Court in Milimani on May 20, 2013 to be arraigned. They duly appeared before the Chief Magistrate’s Court on the set date and were charged with the following offences: (i) Offensive conduct conducive to a breach of peace contrary to section 94(1) of the Penal Code; (ii) taking part in a riot contrary to section 78(1) and (2) as read with section 80 of the Penal Code and (iii) Cruelty to Animals contrary to section 3(1)(c) as read with section 3(3) of the Prevention of Cruelty to Animals Act cap 360 Laws of Kenya.
6.
The Appellants objected to taking plea, raising issues of violations of their constitutional rights during their demonstrations, arrest and arraignment in court. They urged that the Magistrate’s Court finds invalid the charges and/or refer the constitutional questions they raised to the High Court. The Court in a ruling made on May 26, 2013, dismissed the appellants’ requests and directed that they take plea. This Ruling aggrieved the appellants and they sought recourse in the High Court.
","VI. Analysis
(a) Whether the arrest, detention and charging of the Appellants contravened their fundamental rights and freedoms enshrined in the Constitution under articles 32, 33, 36, 49 and 50 and are therefore unconstitutional.
66.
To effectively address this issue, we will evaluate the alleged violations as regards each specific article of the Constitution. It is common ground that the appellants, in furtherance of their right to freedom of conscience, thought, belief and opinion, expression and association as guaranteed under articles 32, 33 and 36 sought to protest the actions of Members of Parliament via demonstrations dubbed ‘occupy parliament’ held on May 14, 2013. The organisers of the protest notified the 2nd respondent who had no objections.
Alleged breach of articles 32 (freedom of conscience), 33 (freedom of expression) and 36(freedom of association)
67.
Undeniably, on the day of the demonstrations, the appellants began their demonstrations peacefully and were escorted by the 2nd respondent until at some point, when the demonstrations were stopped by the Police. This, to the appellants, was unlawful as no announcement was made to the effect that the demonstrations were now unlawful and that the police were not justified in arresting them without warrants.
68.
Determining this issue, the High Court held that it was not open for the Court to determine whether the police lawfully stopped the demonstrations as the issue was germane to the criminal trial and was therefore best left for the Magistrates’s Court in light of the presumption of innocence in favour of the Appellants. In the same breadth, the Court of Appeal held that the issue before the trial Court (Magistrate’s court) will be whether the Appellants conducted themselves in a public place in a manner that was not peaceful to warrant the intervention of the 2nd respondent.
69.
The appellate Court distilled, and in our view rightly so, the constitutional question arising being whether the provisions of the Public Order Act and the Penal Code that allow the police to stop a public meeting or procession and to prosecute the Appellants are unconstitutional. Despite faulting the High Court for not having done a sequential analysis required under article 24 of the Constitution before determining whether the impugned provisions were unconstitutional, the appellate Court had recourse to the plain reading of the provisions of the said statutes against the provisions of articles 24 and 37 of the Constitution and found the provisions valid. It stated in this regards thus:
“
While it is true that the High Court did not undertake the sequential analysing required by article 24 before determining whether the impugned provisions of the Public Order Act and the Penal Code are unconstitutional, a plain reading of that Act and the Code against articles 24 and 37 does not persuade us that impugned provisions are unconstitutional. As we have noted, the freedom of assembly, demonstration, picketing and petition guaranteed by article 37 is circumscribed by the express requirement of the Constitution that it must be enjoyed peacefully and by persons who are unarmed. The issue before the trial court will be whether the appellants conducted themselves in a public place in a manner that was not peaceful.”
70.
The Court of Appeal further found the limitation of the rights under article 32, 33 and 36 by the Public Order Act and the Penal Code to be reasonable and justifiable in a democratic society and pursuant to the tenets of article 24 of the Constitution. It held thus:
“
Turning to the criteria under article 24 of the Constitution, there can be no dispute that the limitation is supplied by legislation, the Public Order Act and the Penal Code, which are laws within the meaning of that article. By its nature freedom to assemble, demonstrate, picket and petition, is critical to a free society because it makes it possible for citizens to gather and express their views, stir public debate, search for truth, and participate in public affairs. Hence the basis of its limitation must be carefully scrutinized. Having regard to the following considerations namely; that by constitutional edict freedom of assembly, demonstration, picketing and petition must be enjoyed peacefully; the public order interest that informs the limitation of the right, namely the need to avoid disorder, violence to citizens, damage to property; the fact that under the Public Order Act and the Penal Code the right is limited only when there is clear, present or imminent danger of breach of peace; the need to ensure that the enjoyment of the appellants’ right does not prejudice the rights and fundamental freedoms of other users of public spaces and thoroughfares who are not involved in the meeting or procession; we hold that the impugned provisions of the Public Order Act and Penal Code are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. We need only point out that many democratic polities have similar public order legislation, such as the Public Order Act, 1986 of the United Kingdom and the Regulation of Gatherings Act, 1993 of South Africa.’
71.
We are in agreement with the Court of Appeal. The limitation to the freedoms of assembly, demonstration, picketing and petition is a well settled principle for order in the society and does not violate the rights provided for in the Constitution. The High Court aptly noted this in the case of Ferdinand Ndung’u Waititu & 4 others v Attorney General & 12 others [2016] eKLR thus:
“
…the Constitution itself has provided claw-backs. Demonstrators, picketers and petition-presenters must do so “peaceably and unarmed”. Assemblies, picketing and demonstrations which are not peaceful are excluded from the protection of the article. If they consist of violence to or intimidation of the public then the assembly or the demonstration ought to be stopped. Likewise participants in assemblies, picketers and demonstrators must not be armed. Weapons as well as defensive or protective contraptions which breed or stimulate aggression ought not to be possessed by the demonstrators or picketers.
33.
The spirit of the constitutional claw-back is to ensure that the rights of others within the vicinity of the place of assembly or of the demonstrators or picketers are also not interfered with. Thus in the South African case of Fourways Mall(Pty) Ltd v South African Commercial Catering [1999] 3 SA 752 , it was held that the Constitution as well as statute law does not protect picketers who proceed in a manner that interferes with the rights of the public or assault others. The court, in interpreting Section 17 of the South Africa’s Constitution which is pari materia with our Constitution at article 37, was clear that the Constitution does not encourage a volatile environment in a protest march.”
72.
The court continued thus:
34.
It certainly would be an antithesis of constitutional values and principles if picketers and demonstrators are allowed to participate in non-peaceful demonstrations or pickets whilst armed with implements set to stimulate aggression. It is therefore no surprise when the Constitution itself limits the right to assemble, to demonstrate, to picket and to present petitions.
35.
My preliminary view is also that the Public Order Act (cap 56) contrary to popular views does not limit the right to demonstrate or to assemble. It instead seeks to preserve and protect the precious right to public assembly and public protest marches or processions by regulating the same with a view to ensuring order. Part III of the Public Order Act seeks to regulate public meetings and processions by providing for the need to notify the police service and also the power of the police service to stop or prevent a public meeting where appropriate and where it is obvious it will not meet the constitutional objectives. Under the same Part III, the Public Order Act also prohibits the possession of “offensive weapons” at public meetings and processions. In my view, it is a small price to pay to ensure that the assembly or demonstration is peaceful by involving a body enjoined to ensure security, safety and order. Both the participants as well as the non-participants are assured of protection through involvement of security officials.”
73.
Notably, article 33(2) and (3) of the Constitution expressly excludes the freedom of expression from conduct and acts that extends to advocacy for hatred that constitutes vilification of others. The said provisions states:
33(2)
The right to freedom of expression does not extend to
(a)
propaganda for war;
(b)
incitement to violence;
(c)
hate speech; or
(d)
advocacy of hatred that-
(i)
constitute ethnic incitement, vilification of others or incitement to cause harm; or
(ii)
is based on any ground of discrimination specified or contemplated in article 2794).
(3)
In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.”
74.
It therefore emerges that the exercise of the right to freedom of expression comes with a counter obligation for respect to the rights and reputation of others. However, limitations based on grounds of vilification of others or respect of the right and reputation of others are matters to be subjected to judicial determination based on specific facts rather than a carte blanche and unilateral imposition. This determination of facts is a matter that can be only legitimately undertaken by a trial Court in evaluation of the evidence presented before it.
75.
Consequently, we agree with the Court of Appeal that the rights in articles 32, 33 and 36 are not prima facie violated by the provisions of the Public Order Act and the Penal code. The limitations granted in these statutes are legitimate as the said rights are not absolute. We hasten to add that for the Appellants to successfully bring themselves within the realm of constitutional challenge of the said Public Order Act, they ought to plead with specificity the alleged provision and the manner in which it is inconsistent with the Constitution. A general attack to legislation does not suffice.
76.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/93/eng@2019-10-18
Reference 3 of 2019,Council of Governors & 47 others v Attorney General & 6 others (Reference 3 of 2019) [2019] KESC 65 (KLR) (8 October 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",8 October 2019,2019.0,Nairobi,Civil,Council of Governors & 47 others v Attorney General & 6 others,[2019] KESC 65 (KLR)               ,,"A. Introduction
1.
This Reference is dated 15th July, 2019 and was filed by forty-seven County governments (herein the Applicants) seeking an Advisory Opinion, pursuant to Article 163(6) of the Constitution. The Applicants had initially sought an opinion on 14 issues which were later reframed to 8 issues by the Applicants on 29th July, 2019. The reframed issues are as follows:
a.
Whether the recommendations of the Commission on Revenue Allocation made under Articles 205 and 216(1) of the Constitution regarding the equitable share of revenue between “the national and county governments” are binding on “the Senate, National Assembly, the national executive, county assemblies and county executive;
b.
Whether the National Treasury and the National Assembly can formulate and publish a Division of Revenue Bill based on a share of revenue which is not based on the recommendations made by the Commission on Revenue Allocation and the criteria set out in Article 202 and 203(1) of the Constitution;
c.
Whether the continued impasse in the enactment of the Division of Revenue Act undermines the objects of devolution and impedes county governments from executing their mandate under Article 186 as read together with the Fourth Schedule to the Constitution;
d.
Whether the National Assembly can enact an Appropriation Act prior to enactment of a Division of Revenue Act;
e.
Whether the failure by the National Assembly and the Senate to agree on the provisions of Division of Revenue Bill triggers a vote on account within the meaning of Article 222 of the Constitution;
f.
Whether the Controller of Budget can approve withdrawal of funds from the Consolidated Fund and County Revenue Fund in accordance with Article 206(4) and 207 of the Constitution in the absence of a Division of Revenue Act for each financial year;
g.
Whether the National Treasury and Parliament can allocate funds in the national government budget for functions exclusively reserved for county governments except as provided for in Article 206 (2) of the Constitution;
h.
What is the reasonable period for release of the equitable share of the revenue to county governments envisaged by Article 219 of the Constitution;
2.
The Applicants’ Reference is supported by an affidavit sworn by Hon. Wycliffe Ambetsa Oparanya on 26th July, 2019 as the Governor of Kakamega County, one of the Applicants.
3.
On 19th July, 2019, the Speaker of the National Assembly, filed a Notice of preliminary objection dated 18th July, 2019 on the grounds that;
a.
The Applicants seek an interpretation of various constitutional and statutory provisions, matters falling within the High Court of Kenya’s jurisdiction under Article 165(3) (b) and (d) of the Constitution of Kenya;
b.
That the issues raised in the Reference are subject of pending proceedings before the High Court of Kenya, namely;
a.
Nairobi High Court Petition No. 277 of 2017, Wanjiru Gikonyo v The Attorney General & Others;
b.
Nairobi High Court Petition No. 252 of 2016, Council of County Governors v The Attorney General & Others;
c.
Nairobi High Court Constitutional Petition No. 284 of 2019, The Senate of Kenya & 3 Others v The National Assembly of Kenya & Another;
c.
That the county governments have not exhausted the mechanism set out in Article 189(3) of the Constitution, of making every reasonable effort to resolve any dispute before resorting to judicial proceedings.
d.
That the Applicants have not demonstrated that they sought the advice of the Attorney General as stipulated in Rule 41(4)(c) of the Supreme Court Rules, 2012.
4.
In response to the preliminary objection, the Applicants filed submissions dated 18th July, 2019. Other parties herein also submitted on the question of this Court’s jurisdiction.
5.
We note that the question of the revenue to be allocated to counties for the financial year 2019/2020 was settled by a joint Mediation Committee set up pursuant to Article 113 and so the issue of an impasse in revenue allocation is now moot to that extent only.
","C. Analysis
25.
The prime issue for determination at this stage is whether this Court has jurisdiction, and whether it should exercise and render an advisory opinion as sought;
26.
The National Assembly’s main argument in the preliminary objection is that this Court has no jurisdiction to entertain the Reference as filed. In that regard, we note that this Court’s jurisdiction to issue advisory opinions is anchored in the Constitution as Article 163(6), stipulates that:
“
The Supreme Court may issue an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government”.
27.
Further, on this Court’s jurisdiction to offer advisory opinions, the Supreme Court Act, 2011 (Act No. 7 of 2011) provides in Section 13 as follows:
“
An advisory opinion by the Supreme Court under Article 163(6) of the Constitution shall contain the reasons for the opinion and any judges who differ with the opinion of the majority shall give their opinions and their respective reasons”.
28.
Furthermore, the Rules of the Supreme Court also provide for the exercise of this jurisdiction. Rule 41 thus states:
“
The National government, a state organ or county government may apply to the Court by way of reference for an advisory opinion under Article 163(3) of the Constitution”.
29.
In several of this Court’s decisions, we have emphasized that the exercise of this Court’s jurisdiction in Article 163(6) of the Constitution is discretionary and only deserving matters will justify the exercise of such jurisdiction. For instance, in the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion No. 2/2012; [2012] eKLR, (the Matter of the National Gender and Equality Commission) we observed as follows:
“
17.
In the earlier Advisory-Opinion matter, this Court had elected to proceed with caution in such cases. Only a truly deserving case will justify the Court’s Advisory Opinion, as questions amenable to ordinary litigation must be prosecuted in the normal manner; and the Supreme Court ought not to entertain matters which properly belong to first-instance-Court litigation. Only by due deference to the assigned jurisdiction of the different Courts, will the Supreme Court rightly hold to its mandate prescribed in section 3(c) of the Supreme Court Act, 2011 (Act No. 7 of 2011), of developing ‘rich jurisprudence that Kenya’s history and traditions and facilitates its social, economic and political growth.
18.
The Supreme Court must also guard against improper transformation of normal dispute-issues for ordinary litigation, into Advisory-Opinion causes: as the Court must be disinclined to take a position in discord with core principles of the Constitution, in particular, a principle such as the separation of powers, by assuming the role of general advisor to Government”. [Emphasis added]
30.
The criteria for determining whether a matter is properly before this Court was also set by this Court in Re Matter of the Interim Independent Electoral Commission, Sup. Ct. Constitutional Application 2 of 2011 in which we rendered ourselves as follows:
“
83.
With the benefit of the submissions of learned counsel, and of the comparative assessments recorded herein, we are in a position to set out certain broad guidelines for the exercise of the Supreme Court’s Advisory-Opinion jurisdiction:
i.
For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government”, will be determined by the Court on a case-by-case basis.
ii.
The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae.
iii.
The Court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may if satisfied that it is in the public interest to do so, proceed and render an Advisory Opinion.
iv.
Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the Issue is of great public importance is of greatpublic importance and requiring urgent resolution through an Advisory Opinion. In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial Court process.
84.
The foregoing guidelines coincide with our conviction that the plain terms of the Constitution should be read in the broader context of its spirit and philosophy; and on that basis, applications seeking Advisory Opinion shall be resolved as necessitated by the merits of each case. In view of the practical and legal constraints attendant on Advisory Opinions, this Court will, in principle, exercise that jurisdiction with appropriate restraint”.
31.
In the Matter of the National Gender and Equality Commission, this Court emphasized that the locus standi of an applicant and the subject matter of a reference are the two paramount considerations although other factors may be considered on a case by case basis.
32.
Having therefore considered the above expressions of the law as well as the provisions of Article 6 and the 1st Schedule of the Constitution, it is no doubt that the Applicants(2 – 48) are County governments, hence are qualified to seek an advisory opinion from this Court.
33.
As to whether this matter concerns county governments, we have interrogated the Applicant’s reframed issues for an advisory opinion and are of the finding that the issues raised involve matters concerning county governments, namely, the formulation, publication of the Division of Revenue Bill, the reasonable period for release of the equitable share of the revenue to county governments among others and also what happens when both houses of parliament fail to agree on a Division of Revenue Bill. In Speaker of the Senate & another v Attorney-General & 4 others; Advisory Ref. o. 2 of 2013; [2013] eKLR, we found that a Division of Revenue Bill provides for sharing of revenue that is collected nationally between the two levels of governments and therefore, significantly impacts on county governments. We specifically stated as follows:
[32]
… “Now in the case of the Division of Revenue Bill (now an Act), it makes provision for the division of revenue that is nationally collected, and for its sharing between the two levels of government. It certainly has a significant impact on the county governments. We hold, in the circumstances, that the Reference herein properly falls under Article 163(6) of the Constitution, as a “matter that concerns county governments…
34.
It emerges that a matter qualifies to be regarded as one of county government only where: that is the case in the terms of the Constitution; it is the case in the terms of statute law; it is the case in the perception of the Court, in view of the function involved or the relation created as between the national government and its processes, on the one hand, and the county governments and their operations, on the other. In the last instance, the Court will conscientiously consider the relationship between the two units as this emerges from the governance operation in question, or from any pertinent scenarios of fact”. [Emphasis added]",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/65/eng@2019-10-08
Application 22 of 2019,Jirongo v Soy Developers Limited & 9 others (Application 22 of 2019) [2019] KESC 21 (KLR) (19 September 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu",19 September 2019,2019.0,Nairobi,Civil,Jirongo v Soy Developers Limited & 9 others,[2019] KESC 21 (KLR)               ,,"A. The Application
1.
The applicant’s Notice of Motion dated 24 July 2019 came up as an urgent matter before a single Judge (Lenaola, SCJ) on 28 July 2019, and was accorded a certificate of urgency. It is from that stage that we now come to the Ruling of the Court, arrived at after considering the application’s merits.
2.
The applicant seeks stay of execution of the Court of Appeal’s decision in Civil Appeal No. 43 of 2017 and Civil Appeal No. 48 of 2017, which had been delivered on 19 July 2019
B. Before the Appellate Court
3.
The Appellate Court had set aside the Judgment of the High Court in Nairobi (JR Misc. Application No. 78 of 2016), which had granted an Order of Certiorari, quashing a decision by prosecutorial agencies to institute criminal proceedings in Criminal Case No. 207 of 2016, against the applicant; as well as an Order of Certiorari quashing the charges in a charge sheet of 9 February 2016, in Police Case No. 121/41/206. Also reversed by the Appellate Court was the High Court’s Order of Prohibition stopping the said Police authorities from pursuing criminal proceedings in respect of the relevant subject-matter.
C. A Question of the Constitution: Applicant’s Case
4.
The applicant herein contends that the Appellate Court’s decision has compromised his personal freedom; and his contention is that “the Court of Appeal having refused to apply clear constitutional provisions … and which violation requires redress … to restore and preserve the appellant’s constitutional and [Court-upheld] rights”, he is rightly aggrieved, and the Supreme Court should uphold his position. On the basis of the foregoing argument, the applicant urges that his substantive appeal “has a high probability of success”, and so should be the basis of a final appeal which involves the interpretation and application of the terms of the Constitution — a matter thus falling within the jurisdiction of the Supreme Court.
5.
Specifically, the applicant contends that the Appellate Court had defaulted by not considering the prospect of violation of his constitutional rights; by disregarding his rights to fair trial under Article 50 (2) of the Constitution; by overlooking his right to equal protection and to the benefit of the law under Article 27 (1) of the Constitution; by default in purposive interpretation of the Constitution, such as will promote its objectives and values, in the terms of Article 259 of the Constitution; by overlooking the fact that the applicant’s contested action is essentially contractual, and had taken place more than two decades earlier, and the relevant official records are unavailable; by not considering the long delays in prosecution of the matter, which now worked to the applicant’s prejudice.
6.
The applicant sought to support the factual element in his application with averments in his affidavit of 24 July 2019. The factual basis of the application is that, it was some 25 years ago that the applicant took a land-offer which has now become the basis of a criminal case lodged against him, without the benefit of documentation and information such as were available at the material time.
7.
It is the applicant’s case that the prosecution case against him amounts to abuse of powers, guided by ulterior motives unrelated to the pursuit of justice. In the circumstances, it was urged that the application for stay of execution of the Appellate Court’s Judgment is merited.
","D. Respondents’ Case
8.
The 1st, 2nd and 3rd respondents, for their part, contend that the facts surrounding the property transaction in question, in 1989, disclose fraudulent acts by the applicant herein; and that, consequently, the Appellate Court had rightly reversed the High Court decision which stood in favour of the applicant. The three respondents denied that any issues of constitutional rights were entailed in the instant matter, maintaining that “this appeal is for the private benefit of the applicant”.
9.
For the 5th, 6th and 7th respondents, it was submitted that this matter had properly come before the Supreme Court, as the appellant is contesting the interpretation or application of certain Articles of the Constitution — notably Articles 50 and 157. The three respondents, however, urged the Court to dispose of the matter at the preliminary stage: for “the petition does not raise … [any] complex issues of constitutional interpretation or application which cannot … be determined at the interlocutory stage …” They urged, lastly, that “the appeal does not merit the threshold of arguability for purposes of grant of stay”.
10.
Of interlocutory standpoints taken judicially, Black’s Law Dictionary, 10th ed. (2014), p. 938 thus affirms:
“
[Of an order, judgment, appeal, etc.] interim or temporary; not constituting a final resolution of the whole controversy.”
11.
The 5th, 6th and 7th respondents call for a termination of the main cause at this preliminary stage: on the ground that no case of merit has come up, as compared to the foundations of the criminal case lodged against the applicant. As for the first three respondents, hardly any question of constitutional interpretation or application had arisen — and therefore, a jurisdictional question would have been pertinent, and the Supreme Court should not disturb the Appellate Court’s determination.
E. Constitution, and Supreme Court’s Remit
12.
This Court’s jurisdiction is not sharply defined in certain cases — especially as regards claims of constitutional entitlements, the content of which stands to be ascertained individually, from one case to another. So we must consider whether the circumstances in which the criminal case against the applicant was initiated, in any way stands to compromise rights as delineated in the Constitution. Does the applicant have certain constitutional rights, which can only be safeguarded through a proper hearing of his appeal before the Supreme Court?
13.
As the applicant notes, the Director of Public Prosecutions (5th respondent) has conceded that the matter before this Court had been premised upon constitutional grounds — the original cause before the High Court being founded upon Articles 22 (1); 23(1), (3); 159 (2) (a); 165 (3) (b), (d); and 258 of the Constitution.
14.
Trial issues, especially those involving the criminal law, have invariably to take into account the clear provisions of the Constitution — notably Article 50 which relates to “fair hearing”. In the instant case, it emerges that recent criminal processes rest upon old scenarios of fact, the boundaries of which may have lost clarity. Such earlier scenarios of fact, moreover, have tended to blur the boundaries between the criminal and the civil dockets. What we see is such an amalgam of civil and criminal scenarios that also touch on the processes of the Constitution, and its prescribed rights and obligations.
F. Supreme Court: Standpoint
15.
We hold, in these circumstances, that an appellate initiative before the Supreme Court, such as in the instant case, is substantially meritorious. To provide the requisite opportunity for such an inquiry of a constitutional nature, we would sustain the motions of the judicial process, and entertain the applicant’s case on the merits.
16.
Consequently, we determine the Notice of Motion of 24 July 2019 in favour of the applicant. We hereby grant stay of execution of the Appellate Court’s decision in Civil Appeal No. 43 of 2017 and No. 48 of 2018, of 19 July 2019, pending the hearing and determination of the appeal, which is to be conducted on the basis of priority.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/21/eng@2019-09-19
Civil Application 35 of 2018,Abdi v Hussein & 2 others (Civil Application 35 of 2018) [2019] KESC 24 (KLR) (Civ) (6 August 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",6 August 2019,2019.0,Nairobi,Election Petition,Abdi v Hussein & 2 others,[2019] KESC 24 (KLR)               ,,"A. Introduction
1.
The application before the court is a Notice of Motion application brought under certificate of urgency dated 3rd December 2018, and filed on the 5th December 2018, seeking stay of execution of the Court of Appeal orders of 23rd November 2018. The same is supported by the affidavit of Ibrahim Noor Hussein, the 1st Respondent in the heading of the application, stating that he is the applicant in the application. The application is brought under the provisions of Sections 21 and 24 of the Supreme Court Act, 2011 and Rules 23 and 26 of the Supreme Court Rules, 2012.
(i) Litigation History
2.
The genesis of the matter is that in the 8th August 2017 general election, Ibrahim Noor Hussein was declared as the elected Member of County Assembly [MCA] Batalu Ward in Wajir County, after garnering 1099 votes against his closest rival who obtained 946 votes. His election was challenged in a petition filed by Hassan Jimal Abdi before the Wajir Magistrates’ Court, and in a judgment delivered on 2nd February 2018, his election was nullified on grounds that it was not conducted in a free and fair manner, and an order was issued for the conducting of a fresh elections and costs to be paid to Ibrahim Noor Hussein and Hassan Jimal Abdi by the 3rd Respondent.
3.
The Applicant [Ibrahim Noor Hussein], filed an appeal before the High Court in Garrisa challenging the election court’s decision. The High Court [in its judgment delivered on the 19th July 2018.] upheld the decision of the election Court, He filed a second appeal to the Court of Appeal but it was struck out on grounds that the Court of Appeal lacked jurisdiction to determine such an appeal, which finding he avers was wrong considering that under Article 164[3] [a] of the Constitution, the Appellate Court has jurisdiction to hear all appeals from the High Court, and that such a finding offends his right to fair hearing under Article 50 of the Constitution. After that loss, he instructed his counsel to file an appeal before this Court.","C. Analysis And Determination
16.
From the pleadings and submissions of the parties, the court deems that two issues arise for determination;
(a)
Whether this court has jurisdiction to deal with the matter
(b)
Whether the orders for stay sought can issue.
(i) Jurisdiction of the Court
17.
It is the applicant’s position that since the Court of Appeal found no provision granting it jurisdiction to determine second appeals in MCA election matters, then it ought to have derived jurisdiction from a purposive interpretation of several provisions of law. However, this Court dealt with a similar issue in the case of Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe & 3 others [2019] eKLR, Election Appeal Application No. 38 of 2018, where the Court of Appeal had similarly struck out the appeal for lack of jurisdiction.
18.
This Court in the Mohamed Ali Sheikh Case analyzed the circumstances of the case and observed that since the Court of Appeal had not heard the appeal emanating from the High Court substantively, there was nothing before this Court to determine and then proceeded to dismiss the application. We, in this matter, reiterate that finding and hold that even if we were to enquire on the issue of jurisdiction, there will be nothing to determine for this court, since there is no substantive judgment of the Court of Appeal on the validity of the election challenged by the applicant.
19.
The other jurisdictional angle raised in opposition to the appeal is the fact that the applicant filed a Notice of Appeal on 28th November, 2018, but failed to institute an appeal. Submissions by the 1st Respondent on that point are that under Rule 33[1], the Record of Appeal ought to have been filed within 30 days of the filing of the Notice of Appeal. Rule 33[1] provides:
(1)
An appeal to the Court shall be instituted by lodging in the registry within thirty days of the date of filing of the notice of appeal —
(a)
A petition of appeal;
(b)
A record of appeal; and
(c)
The prescribed fee.
20.
The 1st Respondent thus contends in the above context that the applicant had not complied with the said Rule as at the time of filing the submissions. Our perusal of the Court record confirms that he has not done so to date. The 1st Respondent has thus urged the Court to dismiss the application for the reason that the non-compliance with the mandatory provision of the above Rule is fatal to the application. The 1st Applicant, it is urged, has also not offered any explanation for failure to comply with the said Rule.
21.
We have considered the submissions, the law and precedent in respect of applications filed before filing a substantive appeal. In the case of Alfred Nganga Mutua & 2 others v Wavinya Ndeti & another [2018] eKLR, Petition of Appeal No. 11 of 2018 this Court found that the record was filed piece-meal but within time, hence failure to file the appeal accompanying the application for stay was not fatal and in any case, the stay sought was to subsist pending the filing of the appeal. Similarly, in the case of Mohamed Ali Sheikh [supra], even though the application for stay was filed before the filing of the substantive appeal, the Court observed that the Record of Appeal was nevertheless filed and was considered by the Court when addressing the stay application.
22.
In addressing the circumstances of the present application, The Court is reiterates finding in the case of Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 Others SC Petition No. 27 of 2014; [2014] eKLR.) , as cited in the case of Mohamed Ali Sheikh [supra], when it held:
‘We have stated in the past that an interlocutory application cannot originate proceedings before the Court… Such a stand-alone application will not generally be considered as it is not predicated upon a substantive matter before the Court and remains unknown in law’:
Similarly in the case of Law Society of Kenya v Centre for Human Rights & Democracy & 12 others [2014] eKLR, Petition No. 14 of 2013, this Court held, while interpreting Rule 33,
‘[39]
If an intending appellant were to present the Court with a Notice and Petition of Appeal, but without the Record of Appeal, and expect the Court to determine “the appeal” on the basis of these two, such an appeal would be incomplete and hence incompetent. Indeed this is the gist of Rule 33(1) of the Supreme Court Rules’.
23.
We have considered these findings and hold that our exercise of discretion as sought by the applicant so as to grant the orders sought, has nothing to be based upon, because we are unable to discern whether there is an arguable appeal in absence of grounds of appeal in a real appeal.
24.
The 1st Respondent has in the alternative urged the Court to strike out the Notice of Appeal in line with the provisions of Rule 37 of this Court’s Rules, arguing that once an appeal is not launched within the prescribed time, then the Notice of Appeal is deemed as withdrawn. Rule 37 Provides:
(1)
Where a party has lodged a notice of appeal but fails to institute the appeal within the prescribed time, the notice of Appeal shall be deemed to have been withdrawn, and the Court may on its own motion or on application by any party make such orders as may be necessary.
(2)
The party in default shall be liable to pay the costs arising therefrom to any person on whom the notice of appeal was served.
25.
This Court considered a similar argument in the case of Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLR, Civil Application No. 35 of 2014, holding that, Rule 37 should be read in conjunction with Rule 53 if an application for extension of time has been filed and not in isolation. However in this case, no such application for extension of time has been filed; making it distinguishable, as a safe case where this Rule can be read in isolation. Reading the Rule in isolation therefore means that the Notice of Appeal so filed is fit for deeming as withdrawn, and without an active appeal before the Court, the application is predicated on nothing.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/24/eng@2019-08-06
Petition 3 of 2019,Karua v Independent Electoral and Boundaries Commission & 3 others (Petition 3 of 2019) [2019] KESC 26 (KLR) (Election Petitions) (6 August 2019) (Judgment),Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",6 August 2019,2019.0,Nairobi,Election Petition,Karua v Independent Electoral and Boundaries Commission & 3 others,[2019] KESC 26 (KLR)               ,,"
A. Introduction
1.
The Petition before us, dated January 25, 2019, is filed pursuant to rules 9 and 33 of the Supreme Court Rules, 2012. The petitioner contests the Judgment of the Court of Appeal delivered on December 20, 2018 which dismissed her appeal thus upholding the election of the 3rd and 4th Respondents as the Governor and Deputy Governor of Kirinyaga County, respectively.
B. Background
(i) Proceedings before the High Court and the subsequent preliminary appeals
2.
The petitioner and the 3rd respondent were candidates for the position of Governor for Kirinyaga County during the election held on August 8, 2017. After the counting of votes, the 3rd respondent was declared the winner of that election. Being dissatisfied with the outcome, the petitioner filed an election petition at the High Court in Embu seeking nullification of the election results. She alleged inter alia that the election was not credible for reasons of bribery, tampering with ballot boxes, forgery of ballot papers and the failure to comply with the statutory and constitutional requirements with regard to voting, counting, tallying and transmission of votes.
3.
In response to the Petition, the 3rd and 4th respondents filed an application to strike out the Petition for failure to comply with rule 8(1)(c) and (d) of the Elections (Parliamentary and County) Petition Rules, 2017. On November 15, 2017, the High Court upheld that application and struck out the Petition.
4.
The petitioner, being aggrieved by the striking out of her petition, successfully appealed to the Court of Appeal and on March 2, 2018, the Appellate Court remitted the matter back to the High Court for its substantive disposal. While the matter was pending before the High Court, on March 29, 2018, the 3rd and 4th respondents filed an appeal to this Court against the Order of the Court of Appeal remitting the matter back to the High Court. In that appeal, they argued that the High Court lacked jurisdiction to hear and determine the petition as the 6 months’ period provided by the law for the hearing of Petitions before the High Court had lapsed. They also sought stay of proceedings before the High Court. By a Ruling delivered on March 28, 2018, we declined to assume jurisdiction on that matter for the reason that the question then before us was also pending for determination before the High Court. We reasoned that it would have been premature of us to make a determination on that issue in those circumstances. That order paved the way for the substantive disposal of the election petition by the High Court.
5.
Upon considering the election petition, on June 11, 2018, the High Court (Gitari J) dismissed the same and held that the gubernatorial election for Kirinyaga County was conducted in accordance with the Constitution. Further, the court determined that once an appeal is filed at the Court of Appeal, it operates as a stay of proceedings at the High Court pending the outcome of the appeal thus freezing the 6 months’ period within which an election petition should be concluded upon filing.
6.
Being aggrieved by the decision of the High Court with regard to the validity of the election, the petitioner once again filed an appeal at the Court of Appeal. The 3rd and 4th respondents cross-appealed contending that the High Court’s Judgment was a nullity because that court lacked jurisdiction to hear and determine the election petition since 6 months had lapsed between the time of filing the petition and its final determination.","E. Analysis
(a) Whether the petitioner has properly invoked this court’s jurisdiction under article 163(4)(a) of the Constitution.
31.
The 3rd and 4th respondents contests this court’s jurisdiction on two fronts: Firstly, they urge that the Petition is not predicated on any constitutional provision. Secondly, that the appeal does not raise any question of constitutional interpretation or application. With regard to the first contention, they urge that the failure to identify the constitutional provision which invokes this court’s jurisdiction is grave and cannot be cured by article 159 of the Constitution. In urging so, they rely on our previous decisions in which we have emphasised on the need to quote the exact provision of the Constitution which invokes our jurisdiction.
32.
In that regard, in Nasra Ibrahim Ibren v IEBC & others SC Petition No 19 of 2018; [2018] eKLR we reiterated that the need to specify the constitutional provision through which one moves the court flows from the fact that not every appeal from the Court of Appeal is appealable to this court. Appeals are limited by article 163(4) of the Constitution, which categorises them either as of right or upon certification that a matter of general public importance is involved. Our jurisdiction therefore must be invoked within the confines of that constitutional provision. In approaching the court as of right, a party must demonstrate that questions of constitutional application or interpretation are in controversy. With regard to the second limb, one must have been granted certification to appeal to this court. Such requirements therefore dispel any notion of an automatic locus before this court. It has thus been our consistent position that the jurisdiction upon which an appeal rests should not be left for speculation. It must be outrightly stated.
33.
In that regard, in Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others SC Petition No 12 of 2018; [2018] eKLR the jurisdiction of this court was contested because the Petitioners had not indicated under what provision of article 163(4) of the Constitution they were moving the court. In that case, Counsel contended that the absence of certification should be taken to mean that the appeal was premised under article 163(4)(a) of the Constitution. In declining that argument, we held that [paragraph 53]:
“
In this appeal, what Counsel for the petitioners is asking us to do is to assume jurisdiction by way of elimination. This court is being called upon to hold that, because certification was not sought by the intending appellant, then it must follow that the said appellant is invoking the court’s jurisdiction as of right under article 163(4)(a) of the Constitution, even without demonstrating that, such right obtains in the first place. This we cannot do, as it would make a mockery of our past pronouncements on the matter.”
34.
In the present case, the petitioner’s appeal is filed pursuant to rules 9 and 33 of the Supreme Court Rules, 2012. Rule 9 specifies the contents of a petition while Rule 33 provides the timeframe for filing an appeal as well as the documents that forms the record of appeal. The importance of the rules of the court was recognised in the case of Daniel Kimani Njihia v Francis Mwangi Kimani & another SC Application No 3 of 2014; [2015] eKLR, where we held that [paragraphs 14 & 15]:
“
This Court’s jurisdiction is exercisable only on the basis of express provisions of the Constitution and the law. The operational rules for this court (Supreme Court Rules, 2012) are made pursuant to the Constitution, article 163(8) …Consequently, the only applicable sources of law when moving the Supreme Court are the Constitution, the Supreme Court Act, and the Supreme Court Rules, 2012.
35.
Undoubtedly, the Rules of the court thus remain an important tool in aiding the dispensation of justice. In this case however, rules 9 and 33 do not make reference to any particular jurisdiction of this court. Be that as it may be, we acknowledge that the appeal before us, in its body, is crafted in a manner that demonstrates that the petitioner invokes this court’s jurisdiction under article 163(4)(a) of the Constitution and specific provisions of the Constitution are cited as having been violated. We have already cited articles 27, 50, 81, 86 and 87 in that regard. The Warrakah case in that context is clearly distinguishable. Inelegance in drafting is not encouraged nonetheless.
36.
This brings us to the second aspect of the contestation of jurisdiction flowing from and as a corollary to the above. The 3rd and 4th respondents submit that the appeal does not raise any question of constitutional interpretations or application but rather the petitioner only makes mere reference to certain constitutional provisions. In response, the Petitioner urges that her appeal raises questions of constitutional interpretation and application.
37.
Further to our finding above, in our past decisions, we have cautioned parties against making fleeting statements alleging constitutional controversies where such questions were not pivotal for the determination of the dispute before the Court of Appeal. In this case, we note that the grounds raised in the Petition fall for this court to determine the interpretation of inter alia articles 81 and 86 of the Constitution in the context of the electoral process. Further, the petitioner alleges infringement of her right to fair hearing and fair, which proposition calls for interpretation of article 50. Above all, this appeal raises an important issue of timelines for settling electoral disputes. Such a question is deeply rooted in the Constitution and the determination of it will require an interpretation of articles 87(1) and 105 of the Constitution. To that extent therefore, it is our finding that this court has jurisdiction to determine the petitioner’s appeal under article 163(4)(a) of the Constitution.
(b) Whether the proceedings before the High Court were a nullity, and if so, what are the consequences thereof?
38.
It is the respondents’ case that the High Court had no jurisdiction to determine an election petition after the lapse of 6 months from the date of its filing. On her part, the petitioner urges that article 87 was not intended to deny a litigant the right of access to justice and especially where the 6 months’ period lapse was on account of an appellate process which the Petitioner had no control over. In order to contextualise the parties’ arguments, we will briefly narrate the background to this issue.
39.
The Petitioner filed an election Petition at the High Court in Kirinyaga on September 5, 2017. On October 17, 2017, the 3rd and 4th respondents filed an application seeking to strike out the Petition and the supporting affidavits thereto for non-compliance with rule 8(1) of the Elections (Parliamentary and County) Petition Rules 2017. By a Ruling delivered on November 15, 2017, the High Court held that the Petitioner’s failure to include the results of the elections and the date of declaration of results in the Petition was a serious non-compliance with rules 8(1)( c) and (d) aforesaid which rendered it incurably defective. On that basis, the Petition was struck out.
40.
That decision was overturned by the Court of Appeal on March 2, 2018. In doing so, the Appellate Court remitted the matter back to the High Court for its substantive determination. We note that by the time the Court of Appeal made its decision reinstating the Petition, the life span of 6 months from the date of filing of the petition was almost coming to an end. And as expected, by the time the High Court eventually determined the petition on June 11, 2018, 9 months had lapsed from the date of filing the petition. Hence the difficult question now facing the court.
41.
That question first arose in the High Court and that court took the view that once an appeal arising from any matter in an election petition is filed at the Court of Appeal, it operates as stay of proceedings at the High Court pending the outcome of the appeal. The Court of Appeal however was of a different view. It held that the 6 months’ time period limited by section 75 of the Elections Act as read with article 87 of the Constitution could not be extended. It thus held that the High Court had no jurisdiction to hear and dispose of the election petition upon expiry of 6 months after the election petition was lodged. Consequently, the proceedings at the High Court were declared a nullity.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/26/eng@2019-08-06
Petition 44 of 2018,"Ngunjiri & 3 others (Duly Registered Trustees of Kenya African National Union, Nakuru Branch) v Kenya Power & Lighting Company Limited (Petition 44 of 2018) [2019] KESC 25 (KLR) (Civ) (6 August 2019) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",6 August 2019,2019.0,Nairobi,Civil,"Ngunjiri & 3 others (Duly Registered Trustees of Kenya African National Union, Nakuru Branch) v Kenya Power & Lighting Company Limited",[2019] KESC 25 (KLR)               ,,"I. Litigation Background
1.
On 3rd December 2018, this Court was moved by the Petitioners/ Respondents via the filing of a Petition of Appeal dated 30th November 2018. The substantive prayers sought in the petition are that: the petition be allowed with costs; and the Court of Appeal decision of dismissal with costs of the application dated 22nd May 2018 on the 26th October 2018 be set aside and the same be replaced with orders of stay of the decree of Nairobi HCCC No. 14 of 2004.
2.
The appeal filed in this Court springs from the High Court decision in HCCC No. 14 of 2004 delivered on 7th August 2009. In that matter, Kenya Power & Lighting Company (KPLC) filed a suit against Kenya African National Union (KANU) and two of its officials, Julius Ole Sunkuli and Mohammed Yusuf Haji, in their respective capacities as Ag. Secretary General and National Treasurer. KPLC claimed a sum of Kshs. 212, 816, 986.80/- being the amount due for electricity supplied by KPLC to KANU as the landlord at Kenyatta International Conference Center (KICC), Nairobi between 1995 and March 2003.
3.
The High Court, Lesiit, J, in a judgement delivered on 7th August 2009 found that the Plaintiff, KPLC, had proved that it supplied electricity to KANU during the said period and that the latter owed it Kshs. 212, 816, 986.80/-. Consequently, the learned judge entered judgment in favour of the KPLC, against the KANU in the sum of 212, 816,986.80/- together with interest at court rates and costs from the date of filing the suit until payment in full.
4.
KANU was aggrieved and filed a notice of motion dated 26th July 2012 seeking to set aside that judgement of the High Court under Order 12 Rule 7 of the Civil Procedure Rules, 2010. The crux of its application was that due to the fact that KANU’s advocate on record, Kilonzo & Co. Advocates, had applied to cease acting for it after taking the hearing date hence the hearing date was later confirmed without it’s knowledge. The Court, Mutava J (as then was) dismissed the application with costs in a ruling delivered on 8th November, 2012.
5.
Another application was filed by KANU on 23rd November, 2012 seeking to stay the execution of the decision of Mutava J of 8th November, 2012. The application was grounded on the fact that an intended appeal by IT would be rendered nugatory if the stay was not granted and execution levied against it. KPLC had by then moved and attached land Parcel No. Nakuru Municipality Block 93/1 belonging to KANU. In a ruling delivered on 23rd May, 2013, the High Court, Havelock, J granted the application on the ground that KANU had to furnish security within 30 days in either of the following forms, failure to which the application stood dismissed, thus:
i.
A bank or insurance bond for Kshs. 483, 217, 081 or;
ii.
The deposit of the decretal amount i.e. 483, 217, 081/- in an interest earning account to be opened in the joint names of the Advocates for KANU and the Advocates for KPLC with a reputable bank to be agreed upon by the respective firms.
6.
Subsequently, in a plaint dated 28th July 2014, four litigants, the Petitioners in the substantive Petition before this Court, filed a case in the High Court at Nakuru seeking to permanently restrain the defendant from selling or disposing off land title No. Nakuru Municipality /Block 9/31, and a declaration that the said property is the exclusive property of KANU, Nakuru Branch, to the exclusion of KANU Headquarters.
7.
On the even date, by a notice of motion dated 28th July 2014, filed in the earlier suit: HCCC No. 14 of 2004, under Order 22 rule 51 and Order 51 rule 1 by the Objectors, the petitioners now before the Supreme Court, sought that there be stay of execution, attachment and sale by public auction of the property, and that the intended sale on 14th August, 2014 of the same be declared null and void. In a ruling delivered on 12th February 2015, the Deputy Registrar of the High Court, D.W. Nyambu dismissed the objectors’ application. She held that the property was indeed owned and registered in the name of KANU, Nakuru Branch. However, applying section 16(1) of the Political Parties Act, 2011, she held that KANU, Nakuru branch, was not a political party on its own. That land owned by all its branches belong to KANU as a single entity. A 30 days’ stay of execution was however granted as the objectors sought to be supplied with copies of the Ruling and typed proceedings.
8.
On 26th February 2015, the objectors filed an application dated 24th February 2015 seeking referral of a matter to the Judge or the High Court for review under the powers and duties of the Deputy Registrar Rules. The gist of their application’s argument was that KANU, Nakuru branch, by its registered Trustees is the absolute and indefeasible owner of the property and that the same cannot be attached. They further contended that having found that KANU, Nakuru branch, is the registered owner, the Deputy Registrar should have found and determined that registration was the spring board to determine objection proceedings in favour of the Objector(s).
9.
This application was however later withdrawn on 3rd November 2015 and another application dated 19th November 2015 filed on 30th November 2015 seeking extension of time to file an appeal against the decision of the Deputy Registrar. The application was opposed on the ground(s) that it was 10 months late, yet such an appeal was to be filed within 7 days of the decision of the Deputy Registrar. They also sought to preserve LR. No. Nakuru Municipality Block 9/31. In a ruling delivered on 8th April, 2016, Kariuki, J allowed the application and allowed the appeal to be filed with 7 days. The applicant was condemned to pay costs of Ksh. 30, 000 to the Respondent. Failure of the above meant that the application stood dismissed.","IV. Analysis
22.
Having perused the record before us, it is clear that despite the convoluted litigation background of this matter which we have endeavored to capture above, the petition of appeal before this Court, which the Applicant seeks to strike out, springs from the High Court ruling delivered on 17th November, 2016 by Tuiyott, J, on an appeal against the decision of the Deputy Registrar. Aggrieved by the dismissal of that appeal, the Respondents filed a Notice of Appeal to the Court of Appeal and on its basis filed an application under Rule 5(2)(b) of the Court of Appeal Rules, 2010 seeking stay of that High Court decision. It is that stay application that was dismissed by the appellate Court in a Ruling delivered on 26th October, 2018, which the Respondents now seek to appeal before this Court. It is common ground that the substantive appeal before the Court of Appeal, being Civil Appeal No. 149 of 2018, is still pending before the Court of Appeal. Also pending before the appellate Court is an application by the Applicant herein, to strike out that appeal. In a nutshell, the substantive justice of this matter still lies before the Court of Appeal for determination.
23.
This Court is now replete with jurisprudence on the import of Court of Appeal decisions under Rule 5(2)(b) of the Court of Appeal Rules, 2010. First, in Daniel Kimani Njihia v. Francis Mwangi Kimani & Another, SC Application No. 3 of 2014; [2015] eKLR this Court expressed deference to discretionary powers of the Court of Appeal and stated that decisions made in exercise of those powers were not appealable to this Court, thus [paragraph 21]:
“
Not all decisions of the Court of Appeal are subject to appeal before this Court. One category of decisions we perceive as falling outside the set of questions appealable to this Court, is the discretionary pronouncements appurtenant to the Appellate Court’s mandate. Such discretionary decisions which originate directly from the Appellate Court, are by no means the occasion to turn this Court into a first appellate Court, as that would stand in conflict with the terms of the Constitution.”
24.
Subsequently, in the case of Teachers Service Commission v. Kenya National Union of Teachers & 3 Others, SC Application No. 16 of 2015; [2015] eKLR, this Court interrogated the nature of Court of Appeal’s powers under Rule 5(2)(b) and found them to fall squarely within the discretionary powers of that Court stating thus:
“
(27)
Rule 5 (2) (b) of the Court of Appeal Rules of 2010 is derived from Article 164 (3) of the Constitution. It illuminates the Court of Appeal’s inherent discretionary jurisdiction to preserve the substratum of an appeal, or an intended appeal. Although we would not go as far as describing such discretionary jurisdiction as “original” (the term “inherent” more accurately in our view captures the nature of that jurisdiction), the Court of Appeal has nonetheless defined the contours of this discretion succinctly and consistently and has employed it effectively to aid the conduct of its appellate jurisdiction.”
25.
The Court then concluded thus: [paragraph 36]:
“
In these circumstances, we find that this Court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5 (2) (b) of that Court’s Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court.”
26.
Following that decision, this Court has been consistent in not assuming jurisdiction in matters where a Court of Appeal decision was made in exercise of its discretionary jurisdiction under Rule 5(2)(b) of it Rules. The case before this Court is a similar one and we see no reason to depart from this sound jurisprudence.
27.
The upshot is that having established that the substantive appeal in this matter is still pending in the Court of Appeal and that the decision of the Court of Appeal delivered on 26th October 2018 was subject of an application for stay of execution under Rule 5(2)(b) of the Court of Appeal Rules 2010, no appeal lies to this Court. Hence the petition of Appeal before this Court is fatally defective for want of jurisdiction. The Application seeking its striking out is therefore merited.
28.
Consequently, we make the following orders:
(i)
The Notice of Motion application dated 4th February 2019 is hereby allowed.
(ii)
The Petition of Appeal dated 30th November 2018 and filed on 3rd December 2018 is hereby struck out for want of jurisdiction.
(iii)
The Petitioners/Respondents shall bear the Applicant’s costs of the application.
Orders accordingly.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/25/eng@2019-08-06
Civil Application 4 of 2015,Pati Limited v Funzi Island Development Limited & 4 others (Civil Application 4 of 2015) [2019] KESC 23 (KLR) (Civ) (6 August 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",6 August 2019,2019.0,Nairobi,Civil,Pati Limited v Funzi Island Development Limited & 4 others,[2019] KESC 23 (KLR)               ,,"
A. Introduction
1.
This is an application by way of an Originating Motion dated 2nd April 2015 that seeks an order for stay of execution of the Judgement of the Court of Appeal delivered on 27th February 2014 in Mombasa C.A No. 252 of 2005 – Funzi Island Development Ltd & 2 Others v Pati Ltd & 2 Others and the review of the Ruling of the Court of Appeal dated 20th March 2015 in Malindi Civil Application No. 10 of 2014 Pati Ltd v Funzi Island Development Ltd and 4 Others. The Motion was filed pursuant to Article 163(5) of the Constitution, Sections 15, 16 and 24 of the Supreme Court Act and Rules 24 and 26 of the Supreme Court Rules 2012.
2.
In principle, the Applicant is seeking a review of the Court of Appeal Ruling (Okwengu, Makhandia & Sichale) dated 20th March, 2015 which declined to certify its intended appeal to this Supreme Court as one involving a matter of general public importance. The application has also sought stay of execution of the Judgement of the Court of Appeal delivered on 27th February 2014 in Mombasa C. A. No. 252 of 2005, pending its hearing and determination.
B. Litigation Background
i) High Court
3.
The intended appeal, subject of this application for review of denial of certification, is traced to a Judicial Review Miscellaneous Application No. 272 of 1994 filed by the 1st, 2nd and 3rd Respondents in the High Court in which they sought the following orders:
1.
That the Gazette Notice No. 3831 dated 24.6.1994 setting apart Land on Funzi Island and letter dated 27.7.1994 addressed to interested party Pati Limited relating to the allotment of un-surveyed Plot 0.1. ha for the purpose of boat landing base issued by the Commissioner of Lands be quashed and or set aside being null and void.
2.
That the grant issued CR106 under Registration of Titles Act to Pati Limited by respondents be quashed and or set aside as being null and void.
3.
That Pati Limited  , its employees, servants and agents be prohibited from having any dealings whatsoever, or carry out any development, or occupation entry upon or any access or otherwise on the said land on Funzi Island.
4.
That the costs of and incidental to this application be the applicants’ and be paid by the respondents.
4.
The main contention in the Judicial Review proceedings was that the original land allocated by Kwale County Council as Trust Land set apart under section 7 of the Trust Land Act Cap. 288, and allocated to the interested party was at all material times forest land as opposed to Trust Land. Hence, being forest land, no allotment could have legally taken place on the land unless there was a declaration that it had ceased to be such forest land. In a judgement delivered on 14th October, 2004, the High Court, Khaminwa, J (as she was then), declined to issue the orders sought and dismissed the application with costs.","E. Analysis
29.
Having considered the record of the Application before us and the rival submissions of the parties, the single issue for consideration before this Court is whether the Applicant has made a case to the satisfaction of this Court to warrant us to review the denial of certification by the Court of Appeal, set it aside and grant the Applicant leave to file its appeal to this Court.
30.
The principles for certification, which all parties have alluded to were long settled in the cases of Hermanus Philipus Steyn v. Giovanni Gnecci-Ruscone, Sup. Ct. Civil Application No. 4 of 2012 and Malcolm Bell v. Hon. Daniel Toroitich arap Moi & Another, Sup.Ct. Application No. 1 of 2013.
31.
The learned appellate Judges in their Ruling delivered on 20th March 2015 held that the Applicant had not satisfied the principles set out in the above decisions. They were thus emphatic that the Applicant had failed in its application “to identify and concisely set out the elements of general public importance which it attributes to the matter of certification.” That it had “not specifically identified any matter of general public importance, or points of law that are important and substantial or have a significant bearing on public interest or any question that flows from the judgment that forms issues that transcends the facts of the case.”
32.
The learned appellate Judges also considered the draft petition of appeal and reached the conclusion that the Applicant only complained about the Judges’ error in revoking the Applicant’s title in Judicial Review proceedings and in failing to appreciate that the prayer for certiorari was made after the statutory period. These they held not to be matters of general public importance.
33.
On our part, we agree with the Court of Appeal that an applicant seeking certification should outrightly, in its application, set out with precision the issues it considers to be of general public importance. This Court has time and again cautioned parties against engaging in rhetoric and second guessing where they convolute their pleadings and grounds on the pretext that the Court will filter out what it thinks amounts to matters of general public importance and leave out what is not. For instance, in the application before us, the Court of Appeal only framed three issues for determination. We thus wonder how a matter decided on only three issues will warrant the framing of upto seventeen (17) questions for determination. We find some of the questions verbose and repetitive. We reiterate, as we have severally done, that simplicity and precision in pleading is golden in advocacy.
34.
Further, it is now cardinal law that the issues that come to this Court on appeal are those issue that have risen through the judicial hierarchy. This was aptly stated in Peter Oduour Ngoge v Hon. Francis Ole Kaparo, SC Petition 2 of 2012, [para. 29-30] where this Court rendered itself as follows:
The Supreme Court, as the ultimate judicial agency, ought in our opinion, to exercise its powers strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals. In the instant case, it will be perverse for this Court to assume a jurisdiction which, by law, is reposed in the Court of Appeal, and which that Court has duly exercised and exhausted.
In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.”
35.
It therefore emerges that when a party seeks certification and leave to appeal to the Supreme Court, the questions he/she seeks to bring to this Court must have been subject of consideration/litigation in the High Court and then the Court of Appeal. One cannot frame novel matters as forming matters of general public importance when making an application for leave either in the Court of Appeal or this Court.
36.
From the foregoing, we have no hesitation in stating that we find that the majority of the issues that the Applicant has framed as matters of general public importance do not make sense considering the context of the Court of Appeal’s decision and framing of only three issues. In particular, having appreciated the tenor of the record before us, and the three issues that were considered on appeal before the Court of Appeal, we find questions to do with: the failure of the appellate Judges to reach a unanimous decision on the legal status of the suit property; amendment of the Notice of Motion out of the six months’ period; and whether judicial review proceedings are warranted for cancellation of title, are not questions that were considered by the Court of Appeal. Be that as it may, this Court wonders how lack of unanimity in reaching a decision by a collegial court, like the Court of Appeal as was constituted in the present instance, can be a matter subject of litigation. The concept of majority decisions and dissents is a legitimate tenet of judicial work. A decision of a collegial Court will always be that of unanimity or majority and it loses no import because there was a dissenting vote.
37.
As regards the substantive issues before the Court of Appeal, while the appellate Court rightfully considered the matter within the four corners of the Hermanus principles, we opine that the learned appellate Judges should have taken a broader perspective on the issue before them. The Hermanus principles are not exclusive. Another certification principle that we find applicable in this matter therefore was set in the case of Town Council Of Awendo v Nelson Oduor Onyango & 13 others [2015] eKLR which was rendered just over one month after the Ruling of the Court of Appeal under challenge herein in which this Court stated thus:-
(35)
From the content of paragraphs 32 and 34, it emerges that while this Court did, in the Hermanus Phillipus Steyn and Malcolm Bell cases, set out an elaborate set of criteria for ascertaining “matters of general public importance” for the purpose of engaging the Court’s jurisdiction, a further criterion has arisen. It may be thus stated. Issues of controversy that emerge from transitional political-economic-social-cum-legal factors, with impacts on current rights and entitlements of suitors, or on public access to common utilities and services, will merit a place in the category of “matters of general public importance” (Emphasis supplied).
(38)
We have considered the broad issues in the intended appeal in the above context, and found that at play is the question whether the subject matter was indeed Trust Land that could be allocated to private individuals or not? Or whether it was forest land that was not available for allocation. Indeed, a finding on whether the land was public land or not is a matter of general public importance as public land is an important and emotive issue that is fully protected and regulated by the Constitution, 2010. The fact that it might have been allocated under the old legal regime governing land places the matter squarely within the above principle in the Awendo case as a “transitional political-economic-social-cum-legal factor, with impacts on current rights and entitlements of suitors, or on public access to common utilities and services”.
39.
We therefore find that it is in the public interest that this Court settles with finality the question whether the land subject of this matter belongs to the Applicant or whether it fraudulently acquired its title. At play also is the balancing between private interests vis-s-vis public interest. This balancing and determination is a matter of general public interests. This Court has indeed previously held that the process of conversion of public land to private land must be clean. That is why in Narok County Government v Livingstone Kunini Ntutu & 2 others [2018] eKLR, while the case was decided as an appeal filed as of right the public importance element as regards public land was captured thus:
(88)
In that regard, it is our view that the process of conversion of public land or land held in trust to private land has to be beyond reproach. Under the Constitution 2010, this was the rationale behind the formation of the National Land Commission and we note that at the core of this case is the legality of the title to the Suit Land held by 1st Respondent, an individual who obtained it upon its purported excision from public land known as the Masaai Mara National Reserve.
(89)
The issue of the constitutionality and legality of that title was live both in the High Court and the Court of Appeal. Upon finding that the constitutionality and legality of that title was not clear, the learned judge of the High Court set aside the Consent Judgment and ordered that the matter should go for trial to determine that issue.
…
(91)
Public policy goes to the protection of the public interest which is safeguarded by the national values and principles of governance in Article 10 of the Constitution.
(92)
In stating as above, we are certain that the allegations of Trust Land being annexed for private purposes have not been determined on merits. The allegation of unconstitutionality and illegality of the title to the suit land therefore raises a serious policy issue that this Court must have regard to in determining whether it has jurisdiction and to be seized of the matter before it and in making the relevant orders.”
40.
We are therefore under no illusion that as the crux of this matter is whether the title of the Applicant to the suit land was fraudulently acquired or not, which land has to be determined whether it was public land or not, and whether it was available for allocation or not, this matter raises questions of general public importance. Hence we are inclined to grant certification and allow an appeal to be filed.
41.
Before granting the leave sought, we reiterate that not all the seventeen (17) questions framed by the Applicant for determination merits appeal to this Court. In Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2015] eKLR, this Court in granting leave to appeal proceeded to frame the particular issue upon which the leave was granted and which was to be considered on appeal. Consequently, in this matter, duly guided by the issues that the Court of Appeal considered and for pragmatism, we certify the following as the issue of general public importance which this Court should consider in the intended appeal:
Whether the land subject matter of this suit was initially Trust Land, a public beach or a mangrove forest protected under the Forest Act; and if it was Trust Land and or public land, it was properly, regularly and legally allocated to Hon. Mwamzandi who later re-allocated it to Pati Limited, the Applicant here.”
42.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/23/eng@2019-08-06
Petition (Application) 3 of 2017,Aviation & Airport Services Workers Union (Kenya) v Registrar of Trade Unions & Kenya Aviation Workers Union (Petition (Application) 3 of 2017) [2019] KESC 22 (KLR) (23 July 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",23 July 2019,2019.0,Nairobi,Civil,Aviation & Airport Services Workers Union (Kenya) v Registrar of Trade Unions & Kenya Aviation Workers Union ,[2019] KESC 22 (KLR)               ,,"I. Introduction
1.
The Substantive matter before this Honorable Court is a Petition of Appeal dated and filed on the even date of 23rd February, 2017. The appeal is brought under Article 163 (4) (a) of the Constitution, sections 15 (2) of the Supreme Court Act and Rule 9 and 33 of the Supreme Court Rules, 2012. It challenges the decision of the Court of Appeal dated 13th February, 2017 which stayed execution of the judgment of the Employment and Labour Relations Court (ELRC) dated 2nd December, 2016, which ELRC decision had directed that the 2nd Respondent be deregistered as a Trade Union.
II. Litigation Background
2.
This appeal springs from a Judicial Review Application: Misc. Application No. 439 of 2013, filed by the Applicant/Petitioner herein, challenging the decision of the 1st Respondent to register the 2nd Respondent as a Trade Union. The registration was challenged on the grounds that the application for registration was defective, as the name of the proposed trade union was sufficiently similar to an existing trade union, so as to mislead or cause confusion, in contradiction to section 19 of the Labour Relations Act (LRA). The JR application was transferred to the ELRC following a jurisdictional question and assigned the number, Judicial Review No. 1 of 2015.
3.
The matter was heard and in a judgment dated and delivered on 2nd December, 2016, the Learned Judge of the ELRC (Nduma, J) allowed the application holding that the decision of the 1st Respondent to register the 2nd Respondent as a trade union in the aviation industry was a nullity and quashed it. The Court ordered the 1st Respondent to deregister the 2nd Respondent through Gazettement.
4.
The 2nd Respondent was aggrieved by this judgement and filed a Notice of Appeal dated 6th December, 2016 signaling its intention to appeal the decision to the Court of Appeal. It subsequently filed two applications both seeking stay of execution of the judgment. First was an application dated 8th December, 2016 filed in the ELRC; and secondly, an application dated 13th December 2016 filed in the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules, 2010.
5.
Meanwhile, in compliance with the decision of the ELRC, the 1st Respondent via a letter dated 9th December 2016 notified the 2nd Respondent that it had been deregistered as from 5th December 2016. This was subsequently followed by a Gazette Notice No. 10372 notifying the Cancellation of the Registration of the 2nd Respondent on 16th December, 2016.
6.
Subsequent to these developments, the stay application filed in the Court of Appeal was heard on 17th December, 2016 and in a Ruling delivered on 3rd February, 2017, the Court of Appeal being cognizant of the fact that the 2nd Respondent had already been deregistered, stated that: “[t]he de-gazettement of the applicant (2nd Respondent herein) is merely a process of execution, which is not final until and unless the applicant’s undoubted right of appeal has been exhausted.” It thus allowed the application and ordered for stay of execution of the ELRC judgment pending the hearing and determination of the intended appeal to be filed before it. It is this Ruling by the Court of Appeal that aggrieved the Petitioner/Applicant and propelled its filing of the Petition before this Court
","VII. Analysis And Determination
(a) Whether this Court has the requisite jurisdiction to hear and determine the Application, and by extension the Petition of Appeal filed before it.
29.
It is trite law that a jurisdiction challenge whenever raised has to be determined in limine as it goes to the core of the case for where a court finds that it has no jurisdiction, it cannot make a further step. In determining the jurisdictional question in this matter, the factual background comprehensively outlined above illuminating. It is common ground that the ruling of the Court of Appeal of 3rd February 2017, which forms the subject matter of the Petition of Appeal before this Court and which this application seeks to stay its execution was subject of a Notice of Motion application under Rule 5(2)(b) of the Court of Appeal Rules. In its submissions, the 2nd Respondent at paragraph 7 has confirmed that it has filed and served the Record of Appeal upon the Applicant and the 1st Respondent. The two have not controverted this account. Hence it can be pragmatically concluded that there is a substantive appeal before the Court of Appeal pending determination.
30.
This Court is replete with decisions on the nature of the Court of Appeal decisions under Rule 5(2)(b) of the Court of Appeal Rules, 2010 as being decisions rendered in exercise of a discretion and the same not being appealable before this Court as of right. In the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others, [2013] eKLR this Court emphasized the principle that decisions of this Court ought to be predictable, consistent and reliable. As such, we find no hesitation in following the set precedents on deference to Court of Appeal discretionary Rulings on applications under Rule 5(2)(b) of its Rules.
31.
Indeed, while the Applicant has cited the case of Deynes Muriithi & 4 others v Law Society of Kenya & another in urging that this Court has jurisdiction, we find no difficult in distinguishing that decision. First the Deynes case did not depart from the principles laid in Daniel Kimani Njihia v. Francis Mwangi Kimani & Another, where the Court stated that discretionary decisions of the Court of Appeal are not appealable to the Supreme Court; and Teachers Service Commission v. Kenya National Union of Teachers and 3 Others (among others) where this Court stated that Rule 5(2)(b) Rulings are made in exercise of the Court of Appeal discretion hence not appealable to the Supreme Court. The Deynes case was decided on the basis of its unique factors which are distinguishable from the case before us.
32.
We reiterate the fundamental principle that Court of Appeal Rulings under Rule 5(2)(b) are made in exercise of a discretion and hence are not appealable to this Court as of right stands and is still good law. The substantive justice of this subject matter still lies before the Court of Appeal which is yet to hear the substantive appeal. Fundamentally, the Court of Appeal itself was cognizant of the fact that the said ‘de-registration’ had already been gazetted when it stated: “[t]he de-gazettement of the applicant (2nd Respondent herein) is merely a process of execution, which is not final until and unless the applicant’s undoubted right of appeal has been exhausted.” Hence, it considered the prevailing circumstances in making the decision it made. Courts of law seek to do justice. It cannot be that fully aware of the circumstances, the Court of Appeal outrightly made a decision to defeat the intended appeal before it.
33.
Hence it is our finding that to the extent that the Petition of Appeal before this Court, on which the application before us is predicated, emanates from a Ruling of the Court of Appeal on an application under Rule 5(2)(b), the same is fatal for want of jurisdiction. As nothing can stand on an illegality, it follows that equally, this application is also fatally defective and if for striking out.
34.
Before our final orders, we note that when this application first came before a single Judge of this Court (Ibrahim, SCJ), a consent was recorded by the parties. It is trite law that jurisdiction is a fundamental legal question and the same can even be raised by a Court of law suo motto. In Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 others [2012] eKLR, this Court was categorical that, “jurisdiction of a court flows from either the Constitution or legislation or both. [That] a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” We hasten to add that, where a court has no jurisdiction, parties cannot consent to clothe the Court with jurisdiction. Consequently, the parties earlier consent in this matter is not a bar to our holding that the Court lacks jurisdiction. Parties only consent to factual issues as between/among them and not on fundamental legal issues like jurisdiction of a court.
35.
In the same breath, earlier proceedings before the single judge (Ibrahim, SCJ) does not in any way waive the consideration of the question of jurisdiction for at that preliminary stage of the proceedings the jurisdictional question was not up for consideration by the learned judge. This was captured in the case of Basil Criticos v Independent Electoral and Boundaries Commission & 2 others, [2015] eKLR”, where it was stated that at that preliminary stage before a single Judge, “[t]here was no opportunity, in the circumstances, to consider vital questions relating to this Court’s jurisdiction as regards the exercise of purely discretionary powers by other Courts.”
36.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/22/eng@2019-07-23
Petition 37 of 2018,Kenfreight (EA) Limited v Nguti (Petition 37 of 2018) [2019] KESC 79 (KLR) (23 July 2019) (Judgment),Judgement,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",23 July 2019,2019.0,Nairobi,Civil,Kenfreight,[2019] KESC 79 (KLR)               ,,"A. Introduction
1.
This is an appeal dated October 4, 2018 and lodged on October 5, 2018 having been admitted by this court as one involving a matter of general public importance under article 1634(b) and 163(5) of the Constitution. The appellant is challenging the entire judgment and orders of the Court of Appeal Makhandia, Ouko & M’Inoti, JJ A. sitting in Mombasa, delivered on 11th March, 2016 which upheld the decision of the Employment and Labor Relations Court at Mombasa Makau J in Cause No 146 of 2013. The Court of Appeal dismissed the appellant’s appeal.
2.
While certifying this appeal as one involving a matter of general public importance, in Miscellaneous Application No 18 of 2016 this Court Maraga, CJ & P; Ojwang, Wanjala, Njoki & Lenaola, SC JJ on September 24, 2018 rendered itself thus:
“
[6]
The court has considered the question at the core of the application, namely, that the Appellate Court’s decision was not guided by the reasoning and determination in that Court’s earlier decision in CMC Aviation Ltd v Mohammed Noor, Nairobi Civil Appeal No 199 of 2013.
[7]
It is clear to this court that the particulars of inconsistency between the Appellate Court’s decisions in the two cases would only be fully evinced upon a hearing of the intended appeal.
[8]
Considering that the prospect of inconsistent determinations in relation to the law of employment would affect the process of application of the law, and would have a bearing on the interests of members of the public, we find this matter to fall within the terms of article 1635. of the Constitution.”
B. Background
i. Proceedings at the Employment and Labour Relations Court
3.
On November 26, 2010, the respondent received a letter from the appellant terminating his employment through its Group Managing Director, invoking the respondent’s contract of employment of September 5, 1996. That letter was to the effect that the respondent’s employment would be terminated with effect from December 1, 2010, having been given one-month notice. He was also informed that he would be paid his salary for the month of December 2010 in lieu of notice.
4.
Aggrieved by the termination, the respondent filed Cause No 146 of 2013 against the appellant in the former Industrial Court now Employment and Labour Relations Court. alleging that the termination of his employment was illegal, wrongful, unfair and discriminatory; that there was no justifiable reasons for the termination; that he was not given a hearing before the termination; and that the termination was actuated by the appellant’s intention to replace him with a Belgian national. As a result, the respondent contended that the amount of Kes 3,258,245 paid as his terminal dues was grossly low as it did not take into consideration an existing practice in the appellant company where full-time directors/employees whose employments were terminated would be paid terminal dues inclusive of 2 month’s as opposed to 15 day’s. salary for each year worked with the appellant. In that regard, the appellant sought the Court to declare his dismissal unfair, unlawful and a nullity, reinstate him, and order payment of his salary for the period between November, 2010 and the date of his reinstatement. In the alternative to his reinstatement, he sought payment of his full salary plus 14 % per annum interest thereon from the date of dismissal until the date of his retirement at the age of 60 years, 12 months’ salary for unfair termination, in addition to terminal dues equivalent to two months’ salary for each year worked, plus interest at 14% per annum effective November 26, 2011 until payment in full , costs and interest.
5.
The respondent’s claim was vehemently denied by the appellant who instead claimed that the respondent’s dismissal was not on disciplinary grounds but a normal termination through service of one month notice as was provided for under the employment contract. It was the appellant’s case that the respondent was not entitled to any accrued employment dues on termination but still, the respondent had granted him an ex-gratia payment.
6.
The Court Makau, J, having heard both sides, framed the following two questions for determination, namely, whether the termination of the respondent’s employment was wrongful and unfair, and whether the claimant was entitled to the reliefs sought.
7.
The learned Judge found, based on evidence on record, that in terms of sections 41, 43(a), 45(2)(a)(b), and 47(5) of the Employment Act, the appellant did not prove any justifiable cause for terminating the respondent’s employment. He held that the appellant’s suggestion that the respondent was negligent and inefficient as a result of which he caused loss to the appellant was never put to him for rebuttal and the respondent was not accorded a disciplinary hearing, nor was he given the reason or reasons for his dismissal. In that regard, the learned Judge declared the respondent’s termination unfair and unlawful, awarded him 12 months’ gross salary at the rate of Kes 676,362 per month for unfair termination, the total translating to Kes 8,116,344 with costs and interest. This award was expressed to exclude the dues of Kes 3,258,245, described in the judgment as ex-gratia. already paid. The rest of the prayers were rejected.
","D. Analysis
i. Issues for determination
26.
Having considered the pronouncement of this court admitting this appeal as one involving a matter of general public importance, the grounds of appeal, the mission of the parties, the authorities in support thereof and having further noted that the appellant has raised several other issues for determination, it is evident to us that there is only one issue for determination by this court, namely:
What is the appropriate remedy for an employee upon unfair or wrongful termination of a contract of employment? Specifically, to whom would the remedy in section 49 of the Employment Act apply where the dismissal upon notice is found to be unfair or wrongful?
27.
The appellant in that context mits that the respondent’s employment was terminated by invoking the contractual clause of terminating the contact which allowed either party to terminate the contract by issuing a one-month notice or by paying one-month salary in lieu thereof. According to the appellant, such a right can be invoked under section 35 of the Employment Act without assigning reasons for terminating the contract of employment. It is therefore the appellant’s mission that the Learned Judges of Appeal departed from previously decided cases, in upholding the decision of the trial Court, thereby creating conflicting decisions on the same issue as well as the question of interpretation and applicability of the Employment Act 2007, by making orders which are inconsistent with the decision of the Court of Appeal, albeit differently constituted in CMC Aviation Limited v Mohammed Noor; Civil Appeal No 199 of 2013, [2015] eKLR the CMC Aviation case.
28.
Conversely, it’s the respondent’s case that the circumstances leading to termination of his employment were allegations of misconduct, breach of duty, negligence and poor performance contemplated under section 41 of the Employment Act which entitles him to the right to be heard. Counsel for the respondent further mitted that the CMC Aviation case was one which the court decided uniquely and is not related to the instant case.
ii. Analysis
29.
We have considered the above mission and note that the Employment Act provides for various modes of terminating an employment one of them being by issuing a termination notice under section 35. The same section gives an employee a right to dispute the lawfulness or fairness of the termination in accordance with the provisions of sections 46; or of an employer or employee to terminate a contract of employment without notice for any cause recognized by law.
30.
Further, section 36 provides that either party to the contract of service to which section 355. applies, may terminate the contract without notice upon payment to the other party of the remuneration which would have been earned by that other party, or paid by him as the case may be in respect of the period of notice required to be given under the corresponding provisions of that section.
31.
In that context, the Employment Act, 2007 makes provisions for appropriate remedies for wrongful dismissal or unfair termination as follows:
“
[49].
(1)
Where in the opinion of a labour officer summary dismissal or termination of a contract of an employee is unjustified, the labour officer may recommend to the employer to pay to the employee any or all of the following—
(a)
the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service;
(b)
where dismissal terminates the contract before the completion of any service upon which the employee’s wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph a. which the employee would have been entitled to by virtue of the contract;
(c)
or c the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.
(2)
Any payments made by the employer under this section shall be ject to statutory deductions.
(3)
Where in the opinion of a labour officer an employee’s summary dismissal or termination of employment was unfair, the labour officer may recommend to the employer to—
(a)
reinstate the employee and treat the employee in all respects as if the employee’s employment had not been terminated; or
(b)
re-engage the employee in work comparable to that in which the employee was employed prior to his dismissal, or other reasonably suitable work, at the same wage.
(4)
A labour officer shall, in deciding whether to recommend the remedies specified in sections (1) and(3),take into account any or all of the following— a. the wishes of the employee;
(b)
the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination; and
(c)
the practicability of recommending reinstatement or re-engagement;
(d)
the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances;
(e)
the employee’s length of service with the employer;
(f)
the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;
(g)
the opportunities available to the employee for securing comparable or suitable employment with another employer;
(h)
the value of any severance payable by law;
(i)
the right to press claims or any unpaid wages, expenses or other claims owing to the employee;
(j)
any expenses reasonably incurred by the employee as a consequence of the termination;
(k)
any conduct of the employee which to any extent caused or contributed to the termination;
(l)
any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; and
(m)
any compensation, including ex gratia payment, in respect of termination of employment paid by the employer and received by the employee.”
32.
When giving an award under section 49 of the Employment Act, a court of law is expected to exercise judicial discretion on what is fair in the circumstances. The Black’s Law Dictionary 9th edition at page 534 defines judicial discretion as follows:
“
the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right”",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/79/eng@2019-07-23
Application 32 of 2018,Okoiti v Central Bank of Kenya & 7 others (Application 32 of 2018) [2019] KESC 29 (KLR) (23 July 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",23 July 2019,2019.0,Nairobi,Civil,Okoiti v Central Bank of Kenya & 7 others,[2019] KESC 29 (KLR)               ,,"A. Introduction
[1]
Before this Court is a Notice of Motion Application dated 15th November, 2018 supported by an affidavit of Okiya Omtatah Okoiti, the Applicant. The Motion is seeking the following orders:
i.
…
ii.
That this Court be pleased to exend time for filing both the petition of appeal, record of appeal, and a supplementary record of appeal so that they can be considered as having been filed within the stipulated time;
iii.
That the costs of the application be provided.
[2]
The Application was triggered by a Judgment of the Court of Appeal dated 12th October, 2018 that set aside the Judgment of the High Court. The Applicant, who was the Petitioner in the High Court, failed to file his appeal to this Court, on time, hence the instant application.
B. Background
[3]
The 1st Respondent (Central Bank of Kenya), pursuant to Article 232 of the Constitution, commenced the procurement of design of currency banknotes in 2014 by advertising the prequalification of suppliers for production of Bank notes, originating material and currency printing services. This was done locally and internationally by Tender No. CBK/043/2013/2014, published in two local dailies, regional weekly papers and its website.
[4]
Following the pre-qualification, four firms that included the 2nd Respondent (De La Rue International Limited), were prequalified by the 1st Respondent. After prequalification, the 1st Respondent in the year 2016 floated Tender No. CBK/064/2016/2017 for origination of material and data set files for the new Kenya currency and bank notes.
[5]
On 24th October, 2017, the 1st Respondent issued the tender for printing and supply of the new design currency. The tender was restricted to candidates who had prequalified under the earlier prequalification process due to the specialized and complex nature of the goods, works and/or services required. On 8th November, 2017, the 1st Respondent issued an addendum to the tender wherein it informed the candidates of its preferences and reservations which were to be fulfilled by bidders in the performance of the proposed contract. The addendum provided inter alia that the bidders who sought to sub-contract part or whole of the contract were to obtain the express authority of the 1st Respondent. The addendums were as a result of the clarifications sought by the 2nd Respondent.
[6]
Before the award of the tender, the 4th and 6th Respondents moved to the High Court by way of Nairobi HC Petition No. 568 of 2017 against the 1st Respondent challenging the tendering process for allegedly contravening Articles 227 and 231 of the Constitution. The Petition was however withdrawn by consent of the 1st, 3rd and 4th Respondents. Following the withdrawal, the tender was evaluated and awarded to the 2nd Respondent. In awarding the tender, the 1st Respondent applied 15% margin of preference provided for under Section 28 of the Public Procurement and Disposal Regulations, 2006. The Restricted Tender for Printing & Supply of New Design Kenya Currency Banknotes, being Tender Reference No. CBK/37/2017-2018 was made on 30th November, 2017.
[7]
Aggrieved with the award, M/s Crane AB successfully petitioned the 5th Respondent (The Public Procurement Review Authority) for review of the decision on the basis that the 2nd Respondent was unlawfully awarded the tender after irregular application of the 15% preference margin inter alia. The preferential margin had been introduced to promote the participation of local industries or marginalized groups in the tendering process. The 5th Respondent thereafter annulled the award. The 1st and 2nd Respondents then moved to the High Court through Judicial Review Applications Nos. 6 and 7 of 2018 to challenge that nullification. The High Court quashed the decision of the 5th Respondent on the ground that the 5th Respondent exceeded its jurisdiction in allowing a party who was not a bidder, to wit M/s Crane AB, to initiate the review proceedings before it.
[8]
Following the above decision of the High Court, Okiya Omtatah Okoiti, the Applicant herein, petitioned the High Court challenging the entire procurement process as a nullity for allegedly failing to comply with the law on the basis misapplication of the law and regulations thus petitioned the High Court for various declarations against the Central Bank Of Kenya, “the 1st Respondent”, De La Rue International Limited, “the 2nd Respondent”, De La Rue Currency & Security Print Ltd, “the 3rd Respondent”, De La Rue Kenya EPZ, “the 4th Respondent, and Public Procurement Review Authority, “5th Respondent.
[9]
The Petition aforesaid alleged contravention of Articles 27, 35 and 47 of the Constitution and the national values and principles of governance set out in Articles 1,2,3,10,231(3), 232, and 259 (1) of the Constitution by the 1st Respondent. The Petition also alleged that the 1st Respondent, in awarding the tender, contravened not just the aforesaid provisions of the Constitution but also the Public Asset Disposal Act, 2015; the Public Procurement & Procurement & Disposal ACT, 2005; the Fair Administrative Action Act, 2015; the Central Bank of Kenya Act and the Statutory Instrument Act, 2015. The Applicant further alleged that the 1st Respondent, as the procuring entity, rigged the tender in favour of the 2nd Respondent with the collusion of the 3rd and 4th Respondents.
[10]
The High Court (Odunga J) in a Judgment delivered on 9th April, 2018 inter alia issued a declaration that the award of the tender made on 30th November, 2017 by the 1st Respondent to the 2nd Respondent was both unconstitutional and unlawful. The High Court then proceeded to quash the said award and issued an order compelling the 1st Respondent to transparently re-evaluate the bids of all compliant bidders and award the tender strictly in accordance with law.
[11]
Aggrieved by the decision of the High Court, the 1st and 2nd Respondents filed Civil Appeals Nos. 116 and 119 of 2018, respectively. The appeals were consolidated and heard together. The Court of Appeal (Githinji, Asike-Makhandia, and Sankale ole Kantai) in a judgment delivered on 12th October, 2018 set aside the Judgment and Decree of the High Court. The Applicant’s failure to file his appeal to this Court within the required period has triggered the instant application.","D. Analysis and Determination
[42]
We have set out the rival submissions by parties and in our view, there are only two issues for determination by this Court. The first issue is whether this Court has jurisdiction to entertain the Application. The second issue is, if we have jurisdiction to determine it, has the Applicant laid enough grounds to enable us extend time within which to file his appeal?
[43]
It is important to settle the issue of jurisdiction ab initio bearing in mind that the jurisdiction of this Court is limited. It would also be an exercise in futility if we were to allow the Applicant to file his appeal out of time only to find later that we are without jurisdiction. In that context, the Application is stated to have been brought under Article 163(4) (a) of the Constitution. Put differently, the intended appeal must have involved application and interpretation of the Constitution. We would thus agree with the Respondents to the extent only, that if the Applicant were to bring his appeal as a matter of great public importance, then he ought to have sought certification thereof. The Applicant has however insisted that his appeal involves interpretation and application of the Constitution and so no certification is required.
[44]
The above being the case, we shall address the Application as framed and so the issue of certification would not arise in our consideration thereof. In that regard, the 3rd and 4th Respondents have made reference to paragraph 2 of the Judgment of the Court of Appeal where the court summarized the issues for determination. In the said paragraph, the Court of Appeal listed the twin issues for determination to be: “whether the appeals ought to be struck out for want of joinder of essential or necessary parties; the applicable law to the tender; and whether the 15% preference margin was lawfully granted to the 2nd appellant and finally, costs”.
[45]
For this Court to assume jurisdiction under Article 163(4) (a) of the Constitution, the Applicant must demonstrate how certain Articles of the Constitution were applied or interpreted in the Trial Court as well as the Appellate Court. In Zebedeo John Opore v. Independent Electoral and Boundaries Commission and 2 Others, Sup. Ct. Election Petition No. 32 of 2018 (para. 57) we held that for a dispute to fall under Article 163(4) (a) of the Constitution, the conclusion reached by the trial Court must clearly emerge as one requiring constitutional interpretation or application. Although the Opore case related to an electoral dispute, we find it applicable here. We further stated in that case that a party seeking this Court’s intervention has to indicate how the Court of Appeal misinterpreted or misapplied the constitutional provision in question. Has the Applicant demonstrated how Article 227 of the Constitution was misapplied?
[46]
We have elsewhere above made reference to the Applicant’s Replying Affidavit dated 11th March 2019. At paragraph 16, he has listed a number of Articles in the Constitution that he invoked for determination. He has included Articles 22 (1) & (2) (c) and 258 (1) & (2) (c) of the Constitution. He then, at paragraph 17, stated that “there is no way an appeal to this Court resulting from the Court of Appeal’s decision in the first appeal thereof, can be said not to be a case involving the interpretation or application of this Constitution”. At paragraph 21, he concludes that his intended appeal revolves around the interpretation and application of Article 227(a) of the Constitution. However, rather than explain how the Articles were applied or interpreted, the Applicant has only made assumptions and we are at pains to find, how the conclusion reached by the Trial Court as well as the Appellate Court emerge as one requiring interpretation and Application of the Constitution. We are also unable to find any explanation by the Applicant as to how the Court of Appeal misinterpreted or misapplied the constitutional provision he has listed. We thus agree with the Respondents that the dispute did not relate to any express question of the interpretation and application of the Constitution. In our view, like the Court of Appeal, we are clear in our minds that the dispute between the parties relates to the tender for printing of new currency and the issue of the 15% preferential margin. No Articles of the Constitution require any interpretation or application in that regard. Any reference to the Constitution, as was the case at the Court of Appeal, was peripheral in addressing those two central issues.
[47]
Having made the above observations, we find that this Court has no jurisdiction to entertain the intended appeal and we cannot also cannot proceed to determine the second issue on whether the time should be extended to allow the Applicant file his intended appeal.
[48]
We find it necessary to address issue of costs. While we agree with the Applicant that where a private citizen sues a government entity in a matter of great constitutional moment or of great public importance, the Applicant should, as a general rule, not be condemned to pay costs, we note however that all Respondents have expended their finances in defending this Application. The Application was in any event never certified as one of public interest to attract the sympathy of the Court as a matter of general public importance. The Applicant, by instituting proceedings in a process which is basically about the tender for printing of new currencies, ought to have anticipated the consequences of his actions including costs. We, in the event, order that the Applicant should bear the costs of all Respondents.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/29/eng@2019-07-23
Application 33 of 2018,Okoiti v Central Bank of Kenya & 7 others (Application 33 of 2018) [2019] KESC 27 (KLR) (23 July 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu",23 July 2019,2019.0,Nairobi,Civil,Okoiti v Central Bank of Kenya & 7 others,[2019] KESC 27 (KLR)               ,,"A. Introduction
[1]
Before this Court is an application dated 15th November 2018 of Okiya Omtatah Okoiti, the Applicant. The Application is seeking the following orders:
(a)
…
(b)
That the Honourable Court be pleased to order a stay to the Judgment and decree/orders granted on 12th October, 2018 by the Court of Appeal in Civil Appeal No.116 of 2018 consolidated with Civil Appeal No. 119 of 2018.
(c)
The costs of the application be provided.
[2]
The Application was triggered by a Judgment of the Court of Appeal in Civil Appeal No.116 of 2018 dated 12th October, 2018 (Githinji, Asike-Makhandia, and Sankale ole Kantai) that set aside the Judgment of the High Court regarding the printing of new bank notes for use in Kenya. The background and the facts of this Application have been set out in Application No. 32 of 2018 where the Applicant herein was seeking the leave of this Court to file his Petition of appeal out of time. We find it unnecessary to restate those facts here.
(i) The Application at the Supreme Court
[3]
The Application to stay the execution of the Judgment of the Court of Appeal has been brought under Articles 1,2,3(1), 4(2), 10, 22,27, 47, 50(1), 73, 75, 159, 163(4)(a), 201(a)&(d), 227(1) & (2), and 259 (1) of the Constitution of Kenya, 2010; Section 19 of the Supreme Court Act, 2011; Rule 17 and 23 of the Supreme Court Rules, 2012; and all enabling provisions of the law.
(ii) Notice of Preliminary objection (PO)
[4]
The 2nd Respondent, De la Rue International Limited, has filed a Notice of Preliminary Objection dated 11th December, 2018, alleging that the Orders sought by the Applicant are not available in law in the absence of the certification process stipulated in Article 163(4)(b) of the Constitution. We shall deal with the objection as we determine the Application before us.
B. Submissions
(i) The Applicant’s
[5]
The Applicant has filed written submissions dated 11th March 2019 in support of his Application and has listed the issues for determination as follows:
(i)
Whether the subject matter of the intended appeal is still alive and justiciable;
(ii)
Whether the intended appeal required certification under Article 163(4)(b) of the Constitution;
(iii)
Whether the computation of time under Rule 33(1) of the Supreme Court Rules violates the Constitution and the principles of natural justice;
(iv)
Whether there was inordinate delay in making this Application;
(v)
Whether the Judgment of the Court of Appeal should be stayed;
(vi)
Whether costs are payable.
[6]
Save for submissions on the issues of whether the Judgment of the Court of Appeal should be stayed and the delay in filing the Application, the submissions are a replica of the Applicant’s submissions in Application No.32 of 2018 where the Applicant is seeking leave of this Court to file his Petition of appeal out of time.
[7]
On the first issue, the Applicant submits that since the dispute is about the issue of banknotes and not coins, the Respondents’ claim that the subject matter is moot is not backed by any material evidence. He has produced as exhibit “000-2” Legal Notice No. 235 of 7th December, 2018, for supply of coins. It is thus his submission that the subject matter is still live and justiciable.
[8]
On the second issue, the Applicant has submitted that he wishes to appeal under Article 163(4) (a) of the Constitution, as the intended appeal raises issues of the interpretation and application of the Constitution as well as statute. He thus contends that his intended appeal revolves around the application and interpretation of Article 227 of the Constitution as read with the Public Procurement and Asset Act, 2015 as well as the repealed Public Procurement and Disposal Act, 2005 which he believes the Court of Appeal misapplied. He has in the same breathe alleged misapplication of Article 50(4) of the Constitution. He thus submits that in such a situation certification was not required.","C. Analysis And Determination
[27]
In Application No. 32 of 2018, we declined the prayer by the Applicant herein to extend time to file his Petition of Appeal out of time for want of jurisdiction. It follows therefore that we have no jurisdiction to determine this application for stay of execution of Judgment of the Court of Appeal. In addition, there is no substantive appeal before us to enable us make a determination on this application for stay of execution one way or the other. Orders cannot be granted in a vacuum or on a whim. It is the Petition of Appeal that indicates the substratum of a party’s case and whether interim orders should be granted or not. Without it, no orders can ordinarily issue.
[28]
On costs, the Applicant shall pay costs to all the Respondents as costs follow the event, a submission he forcefully made in his favour but which we hereby apply as against him. We have done so because this is not a matter of general public importance, but an issue regarding the award of a tender for print of currency, involving private as well as public entities. The Applicant ought to be aware of the consequences of his actions including on costs, hence this order.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/27/eng@2019-07-23
Application 15 of 2018,Okoiti v Sicpa Securities Sol. Sa & 2 others (Application 15 of 2018) [2019] KESC 28 (KLR) (23 July 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",23 July 2019,2019.0,Nairobi,Civil,Okoiti v Sicpa Securities Sol. Sa & 2 others,[2019] KESC 28 (KLR)               ,,"A. Introduction
1.
Before this Court are two Notice of Motion applications and a Notice of Preliminary Objection. The first Notice of Motion is by the Applicant in the main Okiya Omtatah Okoiti (Okoiti). The Second Notice of Motion is by the 3rd Respondent, Commissioner General, Kenya Revenue Authority (KRA). A Notice of Preliminary Objection has also been raised by the 1st Respondent, SICPA Securities SOL. SA (SICPA). The Cabinet Secretary, National Treasury (CS) is the 2nd Respondent. For purposes of this Ruling, we shall adopt the order of the parties as set out in the first Notice of Motion Application by Okoiti dated 8th June 2018.
2.
In the first Notice of Motion, supported by an affidavit dated 8th June 2018 and sworn by Okoiti, the Applicant is seeking the following orders:
(i)
That this Honourable Court be pleased to certify this matter as urgent and the same be heard as a matter of priority;
(ii)
That this Honourable Court be pleased to order a stay to the orders granted on 11th May, 2018 by the Court of Appeal in Civil Application No. 76 of 2018 (UR 67/2018) consolidated with Civil Application No. 78 of 2018 (UR 68/2018);
(iii)
That the substance of this application be certified as involving matters of general public importance;
(iv)
That this application for leave be granted;
(v)
That the costs of the application be provided.
3.
In the second Notice of Motion dated 31st July, 2018, KRA is praying for the following orders:
(i)
This Honourable Court be pleased to strike out Okiya’s Notice of Appeal dated 16th May, 2018 and filed in Court on 17th May, 2018;
(ii)
This Honourable Court be pleased to strike out Okiya’s Notice of Motion dated 8th June, 2018 and filed in Court on 14th June, 2018 as Civil Application No. 15 of 2018;
(iii)
This Court be pleased to make such other order as may be deemed fit and just in the interest of justice;
(iv)
The cost of the application be provided.
4.
In its Preliminary objection, SICPA is urging this Court to strike out Okiya’s Notice of Motion on grounds that this Court lacks jurisdiction. First, to hear and determine an application challenging the exercise of discretion by the Court of Appeal under Rules 5(2) (b) of the Appellate Court Rules. Second, the application offends Article 163(4) (a) of the Constitution. Third, that the application lacks merit, is incompetent and unlawful.
B. Background
5.
The genesis of the dispute is a public notice given in the local media in October, 2017 to announce that with effect from 1st November 2017 “Bottled water, juices, soda and other Non-Alcoholic Beverages and Cosmetics” manufactured or imported into Kenya shall be affixed with excise stamps in accordance with Legal Notice No. 110 of 18 June 2013.
6.
The regulations contained in the legal notice had been issued by the CS and had the effect of expanding the scope of the items to be covered by EGMS to include certain listed goods. According to Okiya, the Kenya branch of SICPA (having its headquarters in Switzerland) had been awarded the tender, worth between Ksh.15-17 billion to ensure the traceability of products, secure exercise duty and ultimately increase revenue to KRA.
7.
The system was also meant to seal loopholes leading to loss of revenue that had been suffered under a manual system as well as curb illicit trade in counterfeit goods. The previous manual method of affixing Excise and Revenue Stamps on excisable goods was only limited to tobacco, wines, spirit and beer but suffered alleged rampant counterfeiting of stamps resulting in manufacturers under declaring the volumes of their products, leading to under collection of exercise tax.
8.
Okiya filed constitutional Petition No.532 of 2017 in the High Court of Kenya at Nairobi challenging the legal instrument. The main grounds being that there had been no public participation or consultation before the introduction of the EGMS and that the legal instruments for the introduction of EGMS were enacted in a manner inconsistent with the Constitution. Further, that the award of Tender Number KRA/HQS/DP-423/2014-2015 by the KRA through direct procurement violated applicable laws thus necessitating its quashing.
9.
In a Judgment dated 12th March, 2018, the High Court (Mativo J) decided that Legal Notice No. 53 of 30th March 2017 was enacted in a manner inconsistent with the Constitution and the Statutory Instruments Act on account of want of adequate public participation prior to its enactment.","(v) Analysis and determination
50.
The main issue for determination, cutting across the three applications is whether this Court has jurisdiction to hear appeals arising from interlocutory orders of the Court of Appeal under Rule 5(2) (b) 0f the Court of Appeal rules. If answered in the affirmative, what are appropriate reliefs for this Court to grant? We have deliberately set out the rival submissions on this point to enable us firmly restate the law on that issue.
51.
Okiya is asking this Court to depart from its decision in Teachers Service Commission v. Kenya National Union of Teachers & 3 others (supra) where we made a determination that we have no jurisdiction to interfere with the exercise of discretion by the Court of Appeal on an application made under Rule 5(2) (b). He is instead urging this Court to be persuaded by the dicta in Deynes Muriithi (supra), where this Court found that:
“
…whenever it becomes plain that the Orders made by other Courts are destined to occasion grave injustice, and this is apparent on the fact of the decision in question, this Court, as ultimate custodian of the constitutional integrity, may not turn a blind eye to such decision, where it stands in conflict with express provisions of the Constitution.”
52.
Okiya thus believes that the Court of Appeal acted in manner that takes away fundamental rights of the citizens of Kenya; the decision has determined the pending appeals in the Court of Appeal denying him the right to be heard; and therefore it is important for this Court to interfere with the exercise of discretionary powers by the Court of Appeal.
53.
KRA, SICPA and CS on the other hand have argued that this Court lacks jurisdiction to entertain appeals in relation to Rule 5(2) (b) applications in the Court of Appeal and have urged this Court to be persuaded by the cases of Equity Bank Limited v. West Link MBO Limited; Stanley Kangethe Kinyanjui v. Tony Keter & others; Daniel Njihia v. Francis Mwangi Kimani & another; Fahim Yasim Twaha v. Timamy Issa Abdalla & 2 others; Hassan Nyaje Charo v. Khatib Mwashetani & 3 others; Sum Model Industries Ltd v. Industrial & Commercial Development Corporation; Lawrence Nduttu & 6000 others v. Kenya Breweries Ltd & another; and Hermanus Phillipus Steyn v. Gnecchi-Ruscone.
54.
From the onset, we must reiterate that the jurisdiction of this Court is limited. That jurisdiction flows from the Constitution and legislation. In Teachers Service Commission v. Kenya National Union of Teachers & 3 Others (supra) this Court held that Rule 5(2)(b) of the Court of Appeal Rules are derived from Article 164(3) of the Constitution and that it illuminates the Court of Appeal’s inherent discretionary jurisdiction to preserve the substratum of an appeal. Generally thereafter, we added there will be a pending, or an intended appeal, as a basis for this Court to entertain an application for stay of execution; and that this Court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules where there is neither an appeal, nor and intended appeal pending before the Supreme Court. We are not ready to depart from these principles because no sound argument has been made in this application to demand such departure.
55.
In that regard, the issues raised in the application by Okiya have not been adjudicated upon by the Court of Appeal. The appeals are indeed still pending in the Court of Appeal. There is no Judgment by the Court of Appeal in which constitutional issues or matters of general public importance have been canvassed. This was also our finding in Basil Criticos v. Independent Electoral and Boundaries & 2 Others. We thus agree with the Respondents that interlocutory applications filed under Rule 5(2) (b) are not appeals as envisaged by Article 164(3) of the Constitution. The jurisdiction of this Court in that context is not as wide as submitted by Okiya.
56.
Okiya has also submitted that the pending appeals in the Court of Appeal were mentioned on 29th August 2018 for purposes of fixing a hearing date. We also note that Okiya made an application dated 23rd July 2018 seeking the Court of Appeal to vary or rescind its order granted on 11th May 2018. Although he is denying the contents of the application, we have perused the annexure marked “CNM-4” by KRA and we are in agreement with KRA that such conduct amounts to an abuse of Court process. An Applicant should have first pursued the application in the Court of Appeal to avoid conflicting decisions from this and that Court.
57.
If we were to follow the decision in Deynes Muriithi, which we are not, we would find that Okiya has not demonstrated that the decision of the Court of Appeal has the effect of disposing of the substratum of the substantive matter before the High Court. He has not demonstrated that the Order of the Court of Appeal has a pre-emptive effect on the appeals pending in the Court of Appeal.
58.
Okiya has further argued that the Preliminary Objection by SICPA is incompetent on the basis that it is not based on pure issues of law but raises issues of fact that need to be ascertained. We do not agree with him because the notice is mainly challenging the jurisdiction of this Court to entertain the application by Okiya which is a pure point of law. We find no contested facts that need to be ascertained in determining the issue of jurisdiction.
59.
The last issue to address is costs of the application. Okiya has urged this Court not to condemn him to pay costs, relying on the Biowatch decision cited above, in the event his application is not successful. We agree with the principle set out in that Judgment but find that it finds no application in this matter for two reasons. First, based on our finding above, we are unable to categorize this application as constitutional litigation. Secondly, all the Respondents have expended their resources in defending Okiya’s application. He should therefore pay their costs. In making that order, it is important for an applicant to be mindful of the cost implication in litigation before embarking on that journey.",Allowed in part,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/28/eng@2019-07-23
Application 4 of 2019,Law Society of Kenya v Attorney General & another (Application 4 of 2019) [2019] KESC 30 (KLR) (Civ) (31 May 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          DK Maraga,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",31 May 2019,2019.0,Nairobi,Civil,Law Society of Kenya v Attorney General & another ,[2019] KESC 30 (KLR)               ,,"Ruling Of The Court
1
The Applicant, the Law Society of Kenya, filed an application dated 1st February, 2019 and filed on 4th February, 2019, seeking orders that this application be certified urgent, that the Court grant an order staying the execution of the whole of the Judgment of the Court of Appeal in Civil Appeal No. 133 of 2011: The Hon. Attorney General v Law Society of Kenya & Another and that the status quo prevailing before delivery of the judgment be restored. The application is brought under Articles 1, 41(1), 159, 163, 258, 259, of the Constitution, Sections 3, 21(2), 24(1) of the Supreme Court Act 2011; Rules 3, 23, 26 of the Supreme Court 2012 and all other enabling provisions of the law.
2
The Applicant sets out the grounds in support of the application in a Supporting affidavit sworn on 1st February, 2019 by Peter Mwaura Kamau and Supplementary Affidavit sworn on 19th February, 2019 and filed 20th February, 2019. It is its case that as a consequence of the Court of Appeal Judgment, thousands of Work Injury Benefits Cases pending before Magistrates’ Courts were transferred to the Employment and Labour Relations Court (ELRC) which then referred them to the Director of Occupational Safety and Health Services (the Director) for adjudication in accordance with a Memo dated 11th July 2018 and titled “Handling of Work Injury Benefits Cases” circulated by the Principal Judge of the ELRC.
3
The Applicant submits in its written submissions dated 19th February, 2019 and filed on 20th February, 2019 that the effect of the Court of Appeal’s decision is to remove jurisdiction to hear Work Injury Benefits Cases arising from the Work Injury Benefits Act 2007 from Magistrates’ Courts. This has occasioned, it argues, a major crisis in the Courts as all Magistrates have refused to deal with any case falling under the Act resulting in such matters being stalled countrywide.
4
It was further submitted by the Applicant that an order of stay of execution and restoration of the status quo is merited since the appeal before this Court is arguable and not frivolous because it touches on grave violations of the Constitution. Particularly, it submits that the question who should wield judicial authority under Article 159(1) should be resolved as the Court of Appeal Judgment vests in the Director, jurisdiction to singlehandedly adjudicate on work injury claims, which is tantamount to denying claimants access to justice and a fair hearing as guaranteed by Articles 48 and 50(1) of the Constitution. Should the order of stay sought be refused, the Applicant has submitted that the appeal, were it to succeed, would be rendered nugatory since all files touching on the Act are being transferred to the Director for re-adjudication and damages would not suffice as a remedy to compensate legal practitioners and litigants.","0.
In conclusion, the 2nd Respondent has submitted that the order sought would not serve the public interest as the filing of a claim for compensation is time sensitive and Section 27(1) of the Act specifically places a 12 month period to bring such a claim after which the right to benefits would lapse. To grant an order of stay for an indefinite period would therefore deny claimants their right to institute claims within the statutory timeframes thus causing injustice
11.
On our part, taking into account the above submissions, WE NOTE as follows;
(a)
As provided under Section 21(2) & (3) of the Supreme Court Act 2011 the Court may make any ancillary or interlocutory orders. That Section must be read with Rule 3(5) of the Supreme Court Rules, 2012, which maintains the Court’s inherent powers to make such orders or give such directions as may be necessary for the ends of justice or to prevent the abuse of the process of the Court.
(b)
In Board of Governors, Moi High School, Kabarak & Another v Melcom Bell [2013] eKLR this Court held (and later confirmed in Teachers Service Commission v Kenya National Union of Teachers & 3 Others [2015] eKLR) that it has jurisdiction to grant declaratory orders, and more particularly, orders of stay of execution of decrees issued by other superior Courts.
(c)
In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR the principles the Court on whether or not to grant a stay of execution were set out thus: “(i) The Appeal or intended appeal is arguable and not frivolous and that; (ii) Unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory. (iii) These principles continue to hold sway not only at the lower courts but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added namely; (iv) That it is in the public interest that the order of stay be granted.”
(d)
The Court was also instructive in Malindi Law Society v Law Society of Kenya of Kenya, Nairobi Branch & 5 others [2018] eKLR where it said that “a grant of stay of existing orders cannot be a matter of course. It rests upon genuine conditions of urgency, merit and dispatch - which in this case are missing.”
12.
In the above context, the Applicants in the present Application do not put forward sufficiently convincing evidence of “genuine conditions of urgency, merit and dispatch” and although the appeal is certainly arguable, we agree with the Respondents that the time lapse between the delivery of the Court of Appeal Judgment, the issuing of the circular implementing the Judgment and the date of filing this application is such that the grant of an order of stay at this late hour would not serve the public interest and would only serve to confuse the on-going adjudication process in Work Injury Benefits cases. It is indeed instructive that litigation has been ongoing since delivery of the Court of Appeal Judgment on 17th November 2017 and to stay any proceedings at this late hour would unduly hamper the fair administration of justice.
13
Having therefore considered the application and affidavit in support thereto and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following orders under section 21(2) & (3) of the Supreme Court Act, 2011 and Rule 3(5) of the Supreme Court Rules, 2012;",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/30/eng@2019-05-31
Petition 4 of 2018,"Kenya Plantation & Agricultural Workers’ Union v Omulama & 9 others (The Kenya Export Floriculture, Horticulture and Allied Workers’ Union (KEFHAU); Represented by its  Promoters) (Petition 4 of 2018) [2019] KESC 37 (KLR) (8 May 2019) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",8 May 2019,2019.0,Nairobi,Civil,Kenya Plantation & Agricultural Workers’ Union v Omulama & 9 others,[2019] KESC 37 (KLR)               ,,"A. Introduction
1.
This is an application by way of Notice of Motion dated 9th August, 2018 brought under Articles 36, 41(2) (c ) (4)(a), (b) & (5), 50(1), 163(3) (b), 163(4) (b), 163 (7) of the Constitution of Kenya and Rules 23, 26(1)(a), (b) (2)(3)(4) and (5) of the Supreme Court Rules, 2012 and the inherent jurisdiction/powers of the Court. The applications seek the following substantive orders:
1.
………….;
2.
That pending inter-partes hearing and determination of this application and petition, the Petitioner be prohibited and/or restrained by itself, its servants, agents or any other person(s) claiming through it from interfering in any way with the operations of the 1st to 9th Respondents’ union by instituting legal proceedings in any other lower courts other than the Supreme Court on matters arising from the impugned Judgment of the Court of Appeal in Civil Appeal No. 141 of 2014;
3.
That pending inter-partes hearing and determination of this application and the petition the proceedings in Cause No. 13 of 2018 and Cause No. 222 of 2018 in the Employment and Labour Relations Court in Nakuru on matters arising from the impugned judgment of Civil Appeal No. 141 of 2014 and any ex parte orders thereto be stayed;
4.
That pending inter-partes hearing and determination of this application and the petition the 1st to 9th Respondents’ union be and is hereby allowed to engage in Collective Bargaining Agreement negotiations on behalf of its members with employers with whom it has a Recognition Agreement;
5.
That pending inter-partes hearing and determination of this application and the petition, employers who employ more than 5 members of the 1st to 9th Respondents’ union be and are hereby directed to deduct and remit trade union dues in accordance with the Kenya Gazette Supplement No. 95, Legal Notice No. 157 of 3rd July, 2018;
6.
That after hearing of this application this Court be pleased to grant an order stopping the petitioners from interfering with operations of the 1st and 9th Respondents’ Union by filing any suit in any other matters arising out of the judgment in Civil Appeal No. 141 of 2014 and which are under consideration in petition No. 4 of 2018; and
7.
That costs of and incidental to this application abide the result of the Petition No. 4 of 2018.
2.
The application is premised upon nineteen (19) grounds in the body of the application and the supporting affidavit of David Benedict Omulama, the National Secretary of KEFHAU, sworn on 9th August, 2018.
3.
The application is opposed by Kenya Plantation & Workers’ Union (the Respondent herein) who has filed a replying affidavit sworn by Francis L. Atwoli, the National Secretary, on 17th August, 2018.
B. Background","D. Analysis
16.
The appellate jurisdiction of this Court is aptly captured in Article 163(4) of the Constitution of Kenya which state as follows:
“
(4)
Appeals shall lie from the Court of Appeal to the Supreme Court –
a)
As of right in any case involving the interpretation or application of this Constitution; and
b)
In any other case in which the Supreme Court, or Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)
(5)
A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.
17.
Section 15 (1) of the Supreme Court Act No.7 of 2011 also provides that Appeals to the Supreme Court shall be heard only with the leave of the Court. Section (15) (2) on the other hand provides that Sub-Section (1) shall not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution.
18.
This Court has time and again stipulated the boundaries of its jurisdiction under Article 163(4)(a) of the Constitution in several decisions, which decisions are still applicable. In the case of Lawrence Nduttu case, a two-Judge Bench of this Court (Tunoi and Wanjala SCJJ) the set guiding principles were affirmed as follows:
(28):
“The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4) (a).” [emphasis added]
19.
Further, in the case of Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others (Joho Case), Sup.Ct. Petition No. 10 of 2013, this Court observed as follows:
(37):
“In light of the foregoing, the test that remains, to evaluate the jurisdictional standing of this Court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the Superior Courts and has progressed through the normal appellate mechanism so as to reach this Court by way of an appeal, as contemplated under Article 163(4)(a) of the Constitution…” [emphasis added].
20.
The same principle was also affirmed in this Court’s decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, S.C App. No. 5 of 2014; [2014] eKLR (Munya 1) where we stated thus:
(69):
“The import of the Court’s statement in the Ngoge Case is that where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate is that the Court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.” [emphasis added]
21.
In determining this application, we shall approach the question of jurisdiction from two angles, whether this Court can stay proceedings before a court below? And whether this Court can issue orders on matters that have not arisen through the normal appellate mechanism?
Jurisdiction to stay proceedings before a court below
22.
On this, the Applicants seek this Court to prohibit the Respondent from instituting legal proceedings in any other lower Courts other than this Court on matters relating to Civil Appeal No. 141 of 2014. They also want this Court to stay proceedings in Cause No. 13 of 2018 and 222 of 2018 before the Employment and Labour Relations Court pending the hearing and determination of the Petition before this Court.
23.
We have had the opportunity to interrogate the Applicants’ application, the supporting affidavit and written submissions, and note that they have not sought stay of proceedings before the Employment and Labour Relations Court. That Court has had the advantage of assessing the facts and legal arguments placed and advanced before it by the parties since the alleged causes are live before it. Accordingly, that court should ideally be afforded the first opportunity to express an opinion as to whether the causes filed and being filed before it raise similar questions as to the ones being raised before the Supreme Court. Should the Applicants be dissatisfied with the decision of that Court, they shall be free to appeal that decision before the Court of Appeal and subsequently to this Court through the normal appellate mechanism. To allow the applicant disregard the Courts below and come directly to this Court in search of stay orders, would amount to an abuse of the process of Court. This was the reasoning of this Court in the case of Sum Model Industries Ltd v Industrial & Commercial Development Corporation, SC Application No. 1 of 2011; [2011] eKLR.
24.
We are therefore reluctant to grant prayer 2, 3 and 6 of this application for the above reasons.
Jurisdiction to issue orders on issues that have not arisen through the normal appellate mechanism.
25.
It is the Applicants’ case that pending the hearing and determination of this application and the petition, this Court issues them with orders to engage in Collective Bargaining Agreement negotiations on behalf of its members with employers with whom it has recognition agreement. They also seek orders from this Court directing employers who employ more than 5 members of their Union to deduct and remit trade union dues to the union.
26.
This Court has in previous decision emphasized the significance of respecting the hierarchy of the judicial system in several cases. For instance, in the case of Peter Oduor Ngoge v Francis Ole Kaparo & others [2012] eKLR this Court stated as follows:
“
In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.”",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/37/eng@2019-05-08
Petition (Application) 17 of 2017,"Khalifa & 2 others v Chairperson, Independent Electoral & Boundaries Commission & another; Njenga (Intended Interested Party) (Petition (Application) 17 of 2017) [2019] KESC 78 (KLR) (8 May 2019) (Ruling)",Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          DK Maraga,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",8 May 2019,2019.0,Nairobi,Civil,"Khalifa & 2 others v Chairperson, Independent Electoral & Boundaries Commission & another; Njenga",[2019] KESC 78 (KLR)               ,,"This is a Notice of Motion Application dated 25th October, 2017 and filed on even date by Adrian Kamotho Njenga, seeking to be enjoined as an Interested Party in the substantive appeal before us.
2.
The Application is supported by the Applicant’s affidavit sworn on 25th October, 2017. The Applicant urges that he has a legitimate interest to be enjoined in the proceeding, since he proposes to argue matters of “crucial public interest”. He takes the position that the Court has no jurisdiction to entertain the substantive appeal, as the subject matter therein does not arise under Article 140 of the Constitution. Further, he proposes that the petitioners have not exhausted the available judicial avenues, before approaching this Court.
3.
","3.
Having considered the Application and even without the benefit of other parties’ responses, it is our finding that the Applicant has not satisfied the conditions for admission as an Interested Party as set out in the cases of Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others Supreme Court Petition No. 12 of 2013; [2014] eKLR and Francis Karioki Muruatetu & Another v. Republic & 5 Others SC Petition No. 15 & 16 of 2015; [2016] eKLR. We say so because the applicant has not demonstrated how he will be affected by the ultimate decision of the Court or what prejudice he will suffer if he is not enjoined. In addition, the applicant’s proposed arguments are not novel, but rather a replication of what is already before the Court.
Orders",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/78/eng@2019-05-08
Application 38 of 2018,Nuri v Kombe & 2 others (Application 38 of 2018) [2019] KESC 77 (KLR) (8 May 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",8 May 2019,2019.0,Nairobi,Civil,Nuri v Kombe & 2 others,[2019] KESC 77 (KLR)               ,,"The substantive matter before the Court is a Petition of appeal dated and filed on the even date of 26th October 2018. The appeal seeks to set aside the Court of Appeal (Ouko, P, Musinga & Murgor, JJA) judgment delivered in Election Petition Appeal No. 5 of 2018 as consolidated with Election Petition No. 1 of 2017, which judgment dismissed the Appellant’s appeal for lack of jurisdiction.
2.
Upon being served with the Petition of appeal, the 2nd Respondent (Applicant herein) filed a Notice of Motion Application dated 17th December 2018, subject of this Ruling. The application is stated to be brought under Rule 8 of the Supreme Court of Kenya Rules, 2012, Section 1A, 1B & 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law.
3.
The application seeks for orders that: the 2nd Respondent be and is hereby granted leave to file an affidavit seeking to be excused from the proceedings before this Honorable Court, and that the 2nd Respondent be granted costs of this application.
4.
The application is premised on grounds in the body of the Notice of Motion and a Supporting Affidavit sworn by one, Barrack Okwaro Muluka, the 2nd Respondent’s Secretary General. The crux of the application is that the 1st Respondent colluded with the 2nd Respondent’s former officials to secure her nomination as a Member of County Assembly of Tana River County contrary to the Party’s Constitution. That while the Appellant successfully sued the 1st Respondent at the Magistrate Court the decision was quashed by the High Court on the basis of a legal technicality. Further, that the Party was not aware of the collusion until the Appellant wrote a letter to the Party.
5.
It is deposed that upon realizing the collusion, the Party instructed an advocate who went on record at the High Court and subsequently at the Court of Appeal, with the aim of bringing to the attention of the court(s), the true factual position. However, the Court of Appeal cited lack of jurisdiction and downed its tools. Consequently, the Applicant now wishes to withdraw from the matter as it deems its continued participation in this matter as amounting to perpetuating a fraud and sanitizing an illegality. Hence the current application for leave to file an affidavit to withdraw from the proceedings.","Consequently, the only applicable sources of law when moving the Supreme Court are the Constitution, the Supreme Court Act, and the Supreme Court Rules, 2012. The Appellate Jurisdiction Act is not applicable when moving this Court. Neither is the Civil Procedure Code.” (Emphasis provided).
10.
Consequently, we find and hold that the reference to the Civil Procedure Act and Rules by the 2nd Respondent is inapplicable and insufficient to help its cause before this Court.
11.
Secondly, Rule 8 remains as the only legal provision under which the application is made. Rule 8 provides for Further pleadings, affidavits etc. It provides:
(1)
A party may, with leave of the Court or with the consent of other party, lodge further pleadings or affidavits.
(2)
An application for leave under this Rule may be made orally.
(3)
Any pleadings, affidavits or other documents filed under this rule shall be served on all parties in accordance with rule 10.
12.
Upon a pragmatic interpretation of this rule, we find that it cannot be a premise for filing of an application like the one before us: seeking leave to file an affidavit to withdraw from proceedings.  This rule allows parties to seek leave (orally) to file a further affidavit or further pleading in addition to what a party might have already filed before Court. The rule cannot be invoked where a party seeks to completely withdraw from proceedings. Hence on that basis alone, we find that the application is fatal for being predicated on a wrong statutory provision.
13.
Be that as it may, we are of the considered view that the application before this Court is alien in law and it is not properly before us. A party who seeks to withdraw from proceedings is required to file a substantive application seeking to withdraw from the proceedings. One cannot withdraw from proceedings by way of an affidavit. An affidavit is a document that presents evidence on oath and cannot, on its own, be a tool for withdrawal from proceedings. Hence the proper cause of action is for the 2nd Respondent to file a substantive application seeking leave to withdraw from the proceedings and not an application seeking leave to file an affidavit to withdraw from proceedings. Such a relief is not available for granting by way of an affidavit.
14.
The upshot is that we have no hesitation in striking out the application for being fatally defective. Consequently, the Notice of Motion application dated December 17, 2017 is hereby struck out with no orders as to costs.
",Struck Out,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/77/eng@2019-05-08
Application 4 of 2018,"Tullow Oil PLC & 3 others v Permanent Secretary, Min of Energy, Republic of Kenya & 15 others (Application 4 of 2018) [2019] KESC 36 (KLR) (Civ) (8 May 2019) (Ruling)",Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",8 May 2019,2019.0,Nairobi,Civil,"Tullow Oil PLC & 3 others v Permanent Secretary, Min of Energy, Republic of Kenya & 15 others",[2019] KESC 36 (KLR)               ,,"A. Introduction
1
This is an application by way of a Notice of Motion dated 28th February, 2018 brought under Rules 3(1), (2) and (5) and 37 of the Supreme Court Rules. The application seeks the following substantive orders:
1.
The Notice of Appeal dated 8/8/2016 lodged by Edward Kings Onyancha Maina, the 16th Respondent herein be and is hereby deemed as withdrawn;
2.
In the alternative, Notice of Appeal dated 8/8/2016 lodged by Edward Kings Onyancha Maina, the 16th Respondent be and is hereby struck out.
3.
The costs of this application be borne by the 16th Respondent.
2.
The application is based on eight (8) grounds in the body of the application and the supporting affidavit of Martin Ombogo, the Country Manager of Tullow Kenya B.V, a subsidiary of Tullow Oil Plc, sworn on 28th February, 2018.
3.
The 16th Respondent has filed a Notice of Preliminary Objection on Points of Law dated 4th April, 2018.
B. Background
I. Proceedings at the High Court
4
This cause originates from a decision of the High Court sitting at Kitale (Karanja J.R, J) delivered on 5th March, 2013. In that ruling, the Court rejected the Applicants’ applications to dismiss or strike out a judicial review application by the 16th to the 18th Respondents. The main issue for determination on the applications was, whether the subject matter or matters and indeed the issues in the subsequent judicial review application had “previously been dealt with and finalized by the court” in the previous judicial review application. While dismissing the applications dated 20th February, 2012, 18th April, 2012 and the application dated 8th May, 2012 the learned Judge held himself thus:
“
Judicial review proceedings, being sui-generis, do not fall under the Civil Procedure Act and Rules save order 53 of the Civil Procedure Rules. The main ground in the applications to set aside leave is founded on the doctrine of “res-judicata"" which is provided for under Section 7 of the Civil Procedure Act in that: -
""No court shall, try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
The doctrine is based on the maxims that no man should be vexed twice over the same cause, that it is in the interest of the state that there should be an end to litigation and that a judicial decision must be accepted as correct. However, the doctrine is applicable under the Civil Procedure Act which does not apply to judicial review proceedings (see, Republic vs. Judicial Service Commission ex parte Pareno (2004) KLR 203, Republic vs Communication Comm. Of Kenya (2001) 1 EA 1999 and Welamondi vs The Electoral Commission of Kenya (2002) KLR 486).
It may as well follow that “res-judicata"" does not apply in judicial review proceedings. Therefore, the application dated 20th February, 2012 and the two applications dated 18th April, 2012 would be devoid of merit in so far as they relate to the setting aside of the leave granted on 30th January, 2012.” [emphasis added]
","D. Analysis
i. The preliminary Objection
15
The core of the preliminary objection is that the application before this Court the supporting affidavit and notice of address of service are defective, frivolous, the applicant’s counsel is conflicted, and that this Court lacks jurisdiction.
16.
This Court has had occasion in the past, to consider the nature of a preliminary objection and endorsed the long-standing jurisprudence set in the Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 (the Mukisa Biscuit Case), on the nature of a preliminary objection. In Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others, Sup. Ct. Application No. 23 of 2014, the Court cited its earlier decision in the Joho case thus:
[paragraph 51]
“The principles in the Mukisa Biscuit case were restated by this Court in the Joho case [as follows…]
‘a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion’.”
17
In the case of Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others; SC, Appl No. 50 of 2014 [2015] eKLR, we held as follows:
“
(18)
… a preliminary objection may only be raised on a “pure question of law”. To distinguish such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record...” [ emphasis added]
18.
In the present case, we are not able to discern the point of law that is being raised by the 16th Respondent. It is our considered opinion that the same has not met the threshold set in the Mukisa Biscuit case. Therefore, the preliminary objection fails.
ii. The case for withdrawal or striking out the Notice of Appeal
19.
We now consider the question whether this Court should withdraw or strike out the 16th Respondent’s Notice of Appeal dated 8th August, 2016. It is the Applicants’ submissions that the timelines for filling an appeal either as of right or one involving matters of general public interest has lapsed and that the 16th Respondent’s Notice of Appeal dated 8th August, 2016 should be withdrawn or struck out.
20
Rule 33(1) of the Supreme Court Rules 2012 thus provides as follows:
“
An appeal to the Court shall be instituted by lodging in the Registry within thirty days of the date of filing of the notice of appeal-
a)
a petition of appeal;
b)
a record of appeal; and
c)
the prescribed fee”
21
Rule 33(4) of the Supreme Court Rules thus provides:
“
For purposes of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub-rule (3) and shall further contain the following documents relating to the appeal in the first appellate court—
a.
the certificate, if any, certifying that the matter is of general public importance;
b.
the memorandum of appeal;
c.
the record of proceedings; and
d.
the certified decree or order” [emphasis supplied].
22
Further, Rule 33(6) of the Supreme Court Rules, provides as follows:
“
Where a document referred to in sub-rule (3) and (4) is omitted from the record of appeal, the appellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record of appeal.”
29.
In the present application, we note the Notice of Appeal was filed 8th August, 2016 and the time for filing an appeal as of right lapsed on 7th September, 2016. Up to date there is no appeal filed. The time for filling an appeal under Article 163(4)(b) lapses 30 days after the grant of certification. There is nothing on record to confirm that the 16th Respondent sought certification, and if the same was allowed, and when it was allowed. In a nutshell, it is our finding that the 16th Respondent has failed to provide sufficient grounds for his failure to file his appeal within the prescribed time. We are inclined to allow the application with costs to the applicants.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/36/eng@2019-05-08
Civil Application 37 of 2018,African Merchant Assurance Company v Kenya Power & Lighting Company Limited (Civil Application 37 of 2018) [2019] KESC 75 (KLR) (30 April 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          PM Mwilu,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",30 April 2019,2019.0,Nairobi,Civil,African Merchant Assurance Company v Kenya Power & Lighting Company Limited,[2019] KESC 75 (KLR)               ,,"A. Introduction
1.
The Application before this Court is dated 12th December, 2018 and lodged on 21st December, 2018. The applicant seeks to challenge the decision of the Court of Appeal (Visram, Karanja, Koome JJ.A) sitting at Malindi, disallowing its application for certification for leave to appeal to the Supreme Court pursuant to Article 163(4)(b) of the Constitution. The applicant now seeks review of the learned Judges’ Ruling and Orders of 6th December, 2018.
B. Litigation Summary
(i) In the High Court
2.
The genesis of the suit before the trial Court was a fire incident at Kibaoni area in Malindi, where several properties were damaged. The applicant, being the insurer of the burnt properties, conducted investigations to identify the cause of the fire and thus the party responsible for the damage. Its investigations revealed that the fire was caused by a faulty electrical pole and that the respondent, was legally responsible for the fire. Relying on this finding, the applicant settled the eight insured affected parties’ claims amounting to Kshs. 76,708, 415 and the cost of investigators and loss adjusters amounting to Kshs. 5, 544, 799.
3.
Anchoring its case on the doctrine of subrogation, the applicant filed a suit in the High Court Civil Case No. 92 of 2012 seeking Kshs. 82,253,214 in the form of special damages plus interest and costs against the respondent. When the original plaint was filed on 19th July, 2012, the eleven insured were joined as the 2nd to 13th defendants. The plaint was later amended to remove them as parties to the suit.
4.
The respondent opposed the claim disputing the cause of the fire and further maintained, that no negligence on its part, had been proved to the required standard. It also claimed that some of the policies, were not valid and that without written authority from the alleged policy holders to file the suit, the applicant lacked capacity to institute the claim. It also disputed the special damages and claimed that no expert report had been produced in Court. It concluded that the doctrine of subrogation could not be invoked in the circumstances.
5.
The issues before the High Court were: What was the cause of the fire; whether the respondent was negligent; whether the polices were valid; whether the applicant had proved its case on the amount of Kshs. 82, 253,214 being claimed; whether the suit was properly filed under the principle of subrogation; and who would bear the costs.
6.
The High Court (Chitembwe, J.) in its Judgment dated 16th day of March, 2016, found that the fire was indeed caused by the electrical sparks from the electrical pole, that the applicant had proved that the respondent was negligent hence 100% liable. On the issue of special damages, it found that only eight policy documents were produced amounting to Kshs 71,527,412 and Kshs. 5,544,799/= paid to the investigators respectively. The Court entered Judgment for the applicant against the respondent for the sum of Kshs. 71, 527,412/= being the total amount incurred as a result of the fire. The applicant was awarded costs.
7.
As regards the issue of whether the suit was properly filed under the principle of subrogation, the High Court found that the suit was properly instituted. The High Court outlined the principles of subrogation. It stated that under the principle of subrogation, the insurance company that settles the claim is allowed to take up the role of the insured. In this regard, the Court was guided by the decision in Simpson & Company et al v. Thomson Kburrel et al [1877] 3 App Cas, 279 or 38 L.T. Further, the High Court found that, such proceedings had to be instituted in the name of the insured but for the benefit of the insurance company. The trial Judge held that the principle precluding an insurer from directly instituting proceedings against third parties was not only well established, it also allows an insured to assign his right against a third party to the insurer. Where upon assignment, the court found, the insurer takes up the role of the insured and was at liberty to sue the third party in its own name. This, the High Court found, was done through clause 6 of the general conditions of the applicant’s policy agreements entered into by the insured. Clause 6 reads:
“
… every right of the insured accrued or to accrue will by way of subrogation pass to and absolutely vest in the insurer to the extent that the loss or damage insured by this policy may be ultimately made good or diminished thereby.”
(ii) At the Court of Appeal
8.
Aggrieved by the High Court Judgment, the respondent appealed to the Court of Appeal, in Malindi Civil Appeal No 59 of 2017. The respondent challenged the High Court Ruling on the basis that the learned Judge erred by:
a.
finding that the suit was properly before him without considering that the respondent (applicant herein) had no capacity to institute the suit;
b.
misdirecting himself by treating the respondent’s submissions on liability and quantum superficially thus arriving at a wrong conclusion;
c.
awarding the applicant Ksh. 71,527,412 which was not just unproven, but also excessive; and
d.
delving into the litigation arena and considering matters not before him.
9.
The Court of Appeal considered the issue of whether or not the insurer had the requisite standing to bring the suit in light of the principle of subrogation. The Court held that the general rule is that an insurer that has subrogated the rights of the insured, may only pursue those rights in the name of the insured. The Court was guided by the decisions in Esso Petroleum Co. Ltd. v. Hall Russel & Co. Ltd. [1989] AC 643, [1989] 1 All ER 37 and Michael Hubert Kloss & Another v. David Seroney & 5 Others [2009] eKLR.
10.
[10] The Appellate Court also held that the only exception to this general rule is where an insured formally assigns his/her rights of action to the insurer. The Court also held that ‘clause 6’, upon which the High Court had relied, merely set out the rights of the insurer under the doctrine of subrogation, but did not have the effect of assigning the right to institute suit as argued by the insurer. On this grounding, the Court of Appeal held that the insurer lacked the requisite standing to bring the suit before the trial Court. It further held that the fact that the insured were initially parties to the suit, did not remedy the lack of standing as the insured ceased to be parties to the suit subsequent to the amendment brought by the insurer.
11.
Consequently, the Court of Appeal found in favour of the respondent herein, set aside the High Court Judgment, the effect of which, it struck out the suit with costs.","C. Issues For Determination
28.
The issue for determination by this Court is whether the matter in respect of which certification is sought is one of general public importance.
D. Analysis
(i) On Jurisdiction
29.
Having been aggrieved by the Judgment of the Court of Appeal, the applicant herein, sought certification to appeal to the Supreme Court under Article 163 (4) (b) of the Constitution. The application for certification was dismissed by the Appellate Court, thus prompting these proceedings. Thus the applicant has invoked, and rightly so, the provisions of Article 163 (4) (5) of the Constitution. What the applicant seeks is a review of the Court of Appeal’s denial to certify the matter for appeal to this Court. There is no doubt therefore, that the application for review is rightly before us. This then paves the way for the Court to consider the merits of the application.
(ii) Whether the Intended Appeal involves a Matter of General Public Importance
30.
The main question before us is: whether an insurer having indemnified the insured, can sue a third party in its own (the insurer’s) name under the doctrine of subrogation.
31.
Is this a question, the determination of which, transcends the circumstances of the case at hand? And would such determination, have a significant bearing on the public interest? Does the intended appeal raise a substantial question of law, the determination of which shall have a significant bearing on the public interest?
32.
We note that in declining to certify the appeal as one involving a matter of general public importance, the Court of Appeal held that the question before it had long been settled in past decisions of the Court. The Appellate Court observed that the High Court, notwithstanding the well settled principle of law, nonetheless invoked the provisions of Article 159 (2) (d) of the Constitution in an attempt to cure, not a procedural technicality, but a substantive requisite of locus standi. The Court also acknowledged the fact that its decision transcended the circumstances of the case at hand in that it concerned a significant community in the insurance sector.
33.
The applicant is not challenging the well settled principle, to the effect that an insurer, has no locus standi to initiate suit against a third party, under the doctrine of subrogation. Nor has the applicant demonstrated that the law on this question is in such state of flax that this Court must intervene. Apart from making reference to the International Bar Association Report, the applicant has not placed before this Court any inconsistent precedents emanating from the Court of Appeal regarding this issue. All the applicant is urging, is that this Court should pronounce itself on a question that has already been settled by other superior courts. Such an enterprise in our view, does not fall within the ambit of Article 163 (4) (b) and (5) of the Constitution. The Court of Appeal was not establishing a new principle in Insurance Law and Practice. It was simply affirming or restating a well-established legal principle. The decision of the Appellate Court transcended the circumstances of the case at hand, only because, it was a Judgment in rem, but not because, it was going to affect the already established legal relations between different actors in the insurance industry. Regarding the applicability of Article 159 (2) (d) of the Constitution to the case, all we can say, is that this Court, has already authoritatively pronounced itself, in a number of cases, as to the meaning and scope of the said Article.
34.
The foregoing analysis inevitably leads us to make the following Orders.
E. Orders
i.
The applicant’s Notice of Motion dated 12th December 2018, is hereby disallowed.
ii.
The applicant shall bear the costs of the application.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/75/eng@2019-04-30
Civil Application 11 of 2018,Ali & another v Mwamutsi (As Administrator of the Estate of David Mwamutsi Muria) (Civil Application 11 of 2018) [2019] KESC 43 (KLR) (30 April 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",30 April 2019,2019.0,Nairobi,Civil,Ali & another v Mwamutsi (As Administrator of the Estate of David Mwamutsi Muria) (,[2019] KESC 43 (KLR)               ,,"We have before us an Application for certification under Article 163(4)(b) of the Constitution that the applicant’s intended appeal against the judgement of the Court of Appeal involves a matter or matters of general public importance warranting a further appeal to this Court and a temporary order of stay of execution of the judgement and/or decree of the Court of Appeal made on 10th May, 2018 in Civil Appeal No. 61 of 2017.
2.
The subject matter of the intended appeal is a land dispute over Title Number Mbwaka/Maereni/311 (the suit land) allegedly dating back to 1975 pitying the applicant’s family against that of the respondent. Both Juma Ali Birwa (deceased) the father of Salim Juma Ali and Rashid Ali (the Applicants) and Mwamutsi Murira (deceased) the father Joyce Ningala Mwamutsi (the Respondent) claim to have separately bought the suit land from the original owner one Katana Chiringa. During the adjudication process in the area, the respondent’s father, who claims to have been the first purchaser of the suit land, lodged his claim and was registered as the proprietor thereof on 13th April 1987. The applicant’s father was, however, in possession of the land and his family has to date been in possession.
3.
In 1996, the respondent’s late father filed Mombasa CMCC No. 3153 of 1996 and sought the eviction of the applicants’ father. That suit was never determined. In 2016, the respondent filed another suit, Mombasa ELC No. 182 of 2016. Contemporaneous with the filing of that suit, the respondent also filed a Notice of Motion in which he sought the eviction of the applicants from and vacant possession of the suit land.
4.
In their grounds of opposition to that application, the applicants averred that the entire suit was an abuse of the court process as the matter was sub-judice Mombasa HCCC No. 44 of 2012 (OS) and that having exclusively and openly occupied the suit land since 1975, the applicants’ family had acquired title to it by adverse possession.
5.
In its ruling dated 27th July 2017, the Malindi ELC Judge, Olola, J. granted the application and compelled the applicants to immediately hand over the suit land and in default be evicted therefrom after 45 days. The learned Judge also ordered the OCS Kisurini Police Station to supervise the execution of that eviction order.
6.
Aggrieved by that ruling, the Applicants appealed to the Court of Appeal contending in 11 grounds of appeal in a nutshell that the learned judge of the Environment and Land Court erred in issuing final eviction orders in an interlocutory mandatory injunction thereby finally determining both Mombasa HCCC No. 44 of 2012 and Malindi 182/2017 even before they were formally consolidated. In its said judgment dated 10th May 2018, the Court of Appeal, declining to disturb the learned ELC Judge’s discretion, which it held was properly exercised, dismissed the Applicant’s Appeal with costs. That is the decision which is the basis of the application before this Court.
7.
From their counsel’s written submissions and the 1st applicant’s affidavit in support of the application, the applicants’ case is that the grant of final orders which determined the suit at an interlocutory stage without a hearing and directed their eviction from and demolition of their permanent buildings on the suit land they have occupied for over 20 years is a matter of general importance warranting a further appeal to this Court.","The question as to when this Court can assume jurisdiction under Article 163 (4) of the Constitution has been addressed in a number of cases. The criteria regarding the invocation of this Court’s jurisdiction as of right under Article 163(4)(a) has been stated in a number of cases including: Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd & Another S.C Petition No. 3 of 2012; (2012) eKLR; Erad Suppliers & General Contractors Ltd. vs. National Cereals & Produce Board, Petition No. 5 of 2012 [2012] eKLR; and Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Petition No. 10 of 2013 [2014] eKLR. The ratio emanating from all these cases and others is as was stated in the Lawrence Nduttu Case: to warrant the invocation of this Court’s jurisdiction under Article 163(4)(a) of the Constitution, “an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter….”
11.
In this case, the applicants wish to invoke this Court’s jurisdiction under Article 163(4)(b). As stated in the case of Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, Sup. Ct. Appl. No. 4 of 2012 [2013] eKLR, a decision it had also made in Peter Oduor Ngoge v. Hon. Francis Ole Kaparo & 5 Others [2012] eKLR (Supreme Court Petition No. 2 of 2012) and reiterated in many other subsequent decisions, an applicant seeking certification under Article 163(4)(b) “must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case….” If it is a point of law, he “must demonstrate that such point is a substantial one, the determination of which will have a significant bearing on the public interest.”
12.
With regard to the invocation of this Court’s jurisdiction as of right under Article 163(4)(a), it was stated in Peter Ngoge (supra) and Michael Mungai v. Housing Finance Co. (K) Ltd & 5 Others SC Application No. 9 of 2015; (2017) eKLR that the matter should have progressed….. This implies that the matter must been substantially heard and the issue of constitutional interpretation and/or application determined with finality by the Superior Courts before finding its way to this Court.
13.
The same analogy must apply to matters of general public importance under Article 163(4)(b). Besides other considerations such as whether the matter in question is one, “the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest”, it must have been finally determined. In our recent decision in the case of Bia Tosha Distributors Ltd v. Kenya Breweries Ltd & Others, Civil Application No. 10 of 2017, relying on Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Petition No. 10 of 2013 [2014] eKLR, we stated that although interlocutory orders can be the basis of appeals to this Court, there must be a definite determination or judgment on the issue.
14.
It is important to recall that the dispute between the parties was first filed before the Subordinate Court in 1996 in Mombasa CMCC No. 3153 of 1996. In 2012, another suit—Mombasa HCCC No. 44 of 2012 (OS)— was also filed. In 2016, a third suit—Malindi ELC No. 182 of 2016—was also filed. None of those cases has been heard. As stated above what was heard is an application in Malindi ELC No. 182 of 2016 pursuant to which an interlocutory mandatory injunction was granted. The main suit is still pending before the Environment and Land Court at Malindi.
15.
So the intended appeal which the applicants wish to proffer to this Court arises out of that interlocutory mandatory injunction issued by the High Court against which the applicants unsuccessfully appealed to the Court of Appeal. The mandatory injunction is itself interlocutory. It could be set aside when the main suit is ultimately heard and determined.
16.
The question we ask ourselves is: can an inchoate determination be a matter of general public importance? We think not. Allowing an appeal from an interlocutory order of the Court of Appeal without definite determination or judgment on the issue, as we recently stated in the Bia Tosha Case, this Court risks making “premature comments on the merits of issues yet to be adjudged … [in the courts below and] … expose one of the parties to prejudice, with the danger of leading to an unjust outcome.”
17.
For these reasons, we find that the application before us has not met the threshold for certification that the applicants’ intended appeal involves a matter of general public importance. Being of that view, the applicants’ additional prayer for a temporary order of stay of execution of the judgement and/or decree of the Court of Appeal made on 10th May, 2018 in Civil Appeal No. 61 of 2017 must also fail.
Justice Wanjala’s Dissenting Opinion
18.
The applicant has approached this Court seeking certification of his intended appeal, as one involving a matter of general public importance, under Article 163 (4) (b) of the Constitution. Crucially, he at the same time, seeks a temporary order of stay, of the Court of Appeal’s decision, against which he intends to appeal. The facts are as outlined in the Ruling by the Majority. At issue is an unresolved land dispute dating as far back as 1975, in which the protagonists are claiming ownership of Title Number Mbwaka/Marereni/311 in Kilifi County.
19.
The suit land has been and remains, the subject of multiple suits at the Chief Magistrate’s Court, the High Court, the Environment and Land Court, the Court of Appeal, and now the Supreme Court. At the Chief Magistrate’s Court, in CMCC No. 3153 of 1996, the respondent’s late father sought the eviction of the applicant’s father from the land, claiming that he, the plaintiff, was the legal owner thereof. This suit, was never determined. There are no discernible reasons on the record before us, as to why this case was never disposed of, one way or the other. At the High Court, the applicants filed an Originating Summons in HCCC No. 44 of 2012, seeking a declaration that he was the legal owner of the suit land on grounds of Adverse Possession. Again, the Originating Summons was never disposed of. In 2016, it was now the turn for the respondent to file suit at the Environment and Land Court in ELC No. 182 of 2016 claiming the eviction of the Applicants.
20.
In a Ruling dated 27th July 2017, the Environment and Land Court, sitting at Malindi, (Olola, J.) granted the application, and issued Orders requiring the applicants to vacate the suit land or be evicted therefrom. Aggrieved by the Court’s Orders, the applicants filed an appeal before the Court of Appeal. The crux of the appeal was to the effect that by granting a Mandatory Injunction at an interlocutory stage, evicting the applicants from the suit land, the learned Judge, had effectively and with finality disposed of the dispute, without hearing the parties on the merits. Another ground by the applicants was that the learned Judge had granted the impugned Orders, in total disregard of the fact that, the dispute was Sub-Judice, in view of HCCC. No 44 of 2012. The Court of Appeal dismissed the application for stay, on grounds that to do so would be interfering with the Superior Court’s exercise of discretion.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/43/eng@2019-04-30
Petition (Application) 4 of 2017,Coast Professional Freighters Limited v Oganda & 2 others (Petition (Application) 4 of 2017) [2019] KESC 40 (KLR) (30 April 2019) (Ruling),Ruling,Supreme Court,Supreme Court,I Lenaola,30 April 2019,2019.0,Nairobi,Civil,Coast Professional Freighters Limited v Oganda & 2 others,[2019] KESC 40 (KLR)               ,,"
1.
Upon perusing the Notice of Motion in the application by the Applicant dated and filed on 2nd June, 2017 brought under Sections 8, 17 and 20 of the Supreme Court Act 2011 and Rule 26 of the Supreme Court 2012, seeking that this application be certified urgent and that the Court does allow the Applicant to file additional grounds of appeal herein as well as a Supplementary record of appeal; and
2.
Upon reading the Applicant’s grounds in support of the application and the Supporting affidavit sworn on 1st February, 2019 which state that “the crux of the appeal and all the grounds serialized by the former applicant’s Advocates crystallize into the grounds proposed to be added” which addition is principal to understanding the dispute and the substance of which, in sum, is that the High Court erred by ignoring the pleadings filed by the Applicant and proceeded to grant remedies to the 1st Respondent (which were not sought against the Applicant) and the order returning the property in dispute to the 1st Respondent amounts to unjustified enrichment since the Applicant has since made significant improvements to the property and no compensation was awarded to the Applicant in respect of this; and without a corresponding order for recovery of the improvements amounts to an arbitrary deprivation of property of any description or of any interest in or right, over, any property of any description as provided in the Constitution; and
3.
Upon considering the Applicant’s written submissions dated 19th February, 2019 and filed on 20th February, 2019 wherein the Applicant submits that the additional grounds of appeal it now seeks to add allow it to approach this Court as of right in terms of article 163(4)(a) as the appeal concerns the application and interpretation of the property clause in article 40(1)(2) and (3) as well as the section 99 of the Land Act; and
4.
Upon reading the 1st Respondent’s grounds of opposition dated 5th February, 2018 and filed on 8th February, 2018 stating that the application is incompetent since this Court has no jurisdiction to entertain the appeal within which the application has been filed; adding that the application is baseless, bad in law and vexatious as well as an abuse of this Court’s processes; lastly, stating that the orders sought would serve no useful purpose as the additional grounds are already covered by the grounds in the appeal filed; and
5.
Upon considering the 1st Respondent’s written submissions dated and filed 7th June, 2019 in which it has submitted that because this Court lacks jurisdiction to entertain the substantive appeal then so too does it lack jurisdiction to deal with the application quoting Owners of the Motor Vessel “Lilian S” v Caltex Oil Ltd [1989] eKLR where it was said that “jurisdiction is everything. Without it, a court has no power to make one more step…”;","We find as follows;
a)
Although the 1st Respondent correctly quotes the dictum on jurisdiction, the conclusion that this Court lacks jurisdiction is premature since the jurisdiction in question is that in respect of the Courts’ power to determine this application and not the substantive appeal.
b)
Granting the orders sought by the Applicants would be prejudicial to the Respondents as it brings before this Court issues not taken on appeal in the Court of Appeal. The additional grounds of appeal are new grounds which neither formed part of the appeal in the Court of Appeal nor were the Respondents able to respond to such substantive grounds of appeal.
7.
Having therefore considered the application and affidavit in support thereto and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following orders;
Orders
a)
The application dated 2 June, 2017 is hereby dismissed;
b)
The Applicant shall bear the costs of this application.
8.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/40/eng@2019-04-30
Application 12 of 2018,Director of Public Prosecutions v Kamau & 4 others (Application 12 of 2018) [2019] KESC 41 (KLR) (30 April 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",30 April 2019,2019.0,Nairobi,Civil,Director of Public Prosecutions v Kamau & 4 others,[2019] KESC 41 (KLR)               ,,"Upon perusing the Notice of Motion application dated 31st May, 2018 and filed on 6th June, 2018 for extension of time to file an appeal out of time and for stay of execution against the Judgment and Orders of the Court of Appeal delivered on 14th July, 2017 in Civil Appeal No. 102 of 2016 and brought under the Provisions of Article 163(4) of the Constitution, Section 21(2), 24(1) of the Supreme Court Act, Rules 23, 26 and 53 of the Supreme Court Rules, 2012; and
2.
Upon reading the applicant’s supporting affidavit and further affidavit sworn by Emily Kamau on 31st May, 2018 and 20th June, 2018 respectively; and
3.
Upon considering the written submissions filed by the applicant on 21st June, 2018 wherein it is contended that the delay in filing the appeal was occasioned by the Court of Appeal’s failure to provide certified copies of typed proceedings, despite having applied for the same as far back as 14th July, 2017; and
4.
Upon further considering the written submissions by the applicant and 2nd, 3rd, 4th and 5th respondents in support of the application, wherein it is contended that:
1.
The intended appeal concerns a substantial outlay of public resources amounting to approximately Kshs 17 billion.
2.
Unless the Orders for extension of time and stay of execution are granted, there is real danger that over 127 pending cases of corruption, bribery and economic crime will be prematurely terminated at this stage, thus severely dealing a blow to the administration of justice and the public interest; and","Upon reading the 1st respondent’s replying affidavit sworn on 16th July, 2018 and written submissions dated 26th July, 2018 and filed on 16th July, 2018 and 27th July, 2018 respectively, wherein he contends that:
1.
The applicant’s decision to charge him afresh before the Magistrates’ Court has rendered the intended appeal spent;
2.
the applicant has not moved the Court with clean hands, as the Application is founded on an unconstitutionality;
3.
The applicant has not demonstrated to this Court what efforts it undertook to obtain the said certified copies of typed proceedings;
6.
We Have Considered the question at the core of the application viz: whether on the basis of the rival affidavits and written submissions of the parties, the Applicant herein, has made a compelling case for this Court to exercise discretion in its favour and thereby grant the orders sought. By a unanimous decision of this Bench, pursuant to the provisions of Sections 21(2) and 23(2)(b) of the Supreme Court Act, 2011 and Rules 21, 23 and 53 of the Supreme Court Rules, 2012; we make the following Orders:
 
Orders
Reasons
1.
The Application dated 31st May, 2018 is hereby allowed.
The application satisfies the principles set out in the cases of Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 others Application No. 16 of 2014 and Hassan Nyanje Charo v Khatib Mwashetani & 3 Others SC Application No. 15 of 2014; on extension of time by this Court
¾And¾
The principles in Board of Govenors, Moi High School, Kabarak & Another v. Malcom Bell SC petition No 6 & 7 of 2013 as affirmed in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others Application No. 5 of 2014 and Wycliffe Oparanya Ambetsa v. the Director of Public Prosecutions SC Petition No 14 of 2016.
2.
The Applicant shall file its appeal within 14 days from the date hereof.
 
3.
Costs shall be in the cause.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/41/eng@2019-04-30
Application 6 of 2019,Nyamboki v Gathuru (Application 6 of 2019) [2019] KESC 44 (KLR) (30 April 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",30 April 2019,2019.0,Nairobi,Civil,Nyamboki v Gathuru,[2019] KESC 44 (KLR)               ,,"Upon perusing the Notice of Motion Application by the applicant dated 20th February 2019, brought under Section 3 of the Supreme Court Act and Rules 3(2) & (5), 31, 33 and 53 of the Supreme Court Rules 2012, seeking an extension of time to file an appeal out of time against the Judgment and Orders of 27th May, 2016 the Court of Appeal in Civil Appeal No. 184 of 2004; and
2.
Upon reading the Applicant’s grounds in support of the application and the supporting affidavit sworn on 20th February, 2019; and
3.
Upon considering the applicant’s written submissions dated 20th February, 2019 and filed on 22nd February, 2019 wherein the applicant submits that the delay in filing the Notice of appeal was occasioned by the mistaken knowledge and belief that his former advocates Messers Oraro and Company Advocates, had filed the Notice of Appeal in the Court of Appeal, and that he should not be punished for counsel’s error; that the Applicant only became aware of the advocates’ failure to file the Notice in December 2018; that further, the Applicant was advised by its advocates on record, that his case required certification before admission to the Supreme Court as was the principle set in Re The Matter of the Interim Independent Electoral Commission, Appeal No. 2 of 2011; that the decision of this Court in Geoffrey Asanyo & 3 Others v. the Attorney General Petition No. 21 of 2015 has established an exemption to the principles in the Re Interim Case allowing the Supreme Court to exercise its inherent jurisdiction to right jurisdictional wrongs committed by the superior Courts, in instances where the issues of appeal have not arisen through the judicial hierarchy; and, that the said decision has therefore presented the Applicant with a new shot at justice; and
4.
Upon reading the respondent’s replying affidavit sworn on 13th March 2019 and filed on 15th March 2019 in which he opposed the Application, on the basis that the same had been filed out of time, with no credible explanation for the inordinate delay; and that since the Applicant’s applications for certification under Article 163(4)(b) and under Article 163 (5) of the Constitution had been dismissed by the Court of Appeal and this Court respectively, the present Application is an afterthought, replete with falsehoods and deliberate distortion of facts, in an attempt to mislead the Court; and","Upon considering the respondent’s written submissions dated 13th March 2019 and filed on 15th March, 2019 in which, the respondent argues that this court has no jurisdiction to hear and determine this application, having heard and dismissed the application for certification under Article 163 (5) of the Constitution; that the delay is inordinate, inexcusable and/or unreasonable; that he has suffered great prejudice since 1983 and will continue to suffer should the application be allowed; and, that the Application is an afterthought and an abuse of Court process;
6.
We find as follows;
a.
The jurisprudence of this Court on the considerations for grant or denial of an application for extension of time was well expressed in Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others Application No. 16 of 2014 and Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others SC Application No. 15 of 2014; and
b.
In determining such an application, the Court has to consider whether the explanation given for any delay is reasonable and credible; whether there also exist extenuating circumstances to enable the Court exercise its unfettered jurisdiction; and that the delay, in any event, should not be so inordinate as to leave no doubt, that an applicant has been slothful, and filed such an application as an after-thought.
c.
In the present case, the four year (4) and two month (2) has neither been adequately explained, nor is the justification offered by the applicant credible. The delay is both untenable and unreasonable.
7.
Having considered the Application and the Affidavit in support filed in support thereto, the Replying Affidavit in opposition thereof, and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following Orders under Section 23(2) (b) of the Supreme Court Act 2011, and Rules 21 and 23 of the Supreme Court Rules, 2012;",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/44/eng@2019-04-30
Application 9 of 2017,Siboe v Kenya Railways Corporation & another (Application 9 of 2017) [2019] KESC 39 (KLR) (30 April 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",30 April 2019,2019.0,Nairobi,Civil,Siboe v Kenya Railways Corporation & another,[2019] KESC 39 (KLR)               ,,"Upon perusing the Notice of Motion Application dated 15th May, 2017 and filed on 19th May, 2017 for stay of execution against the Judgment and Orders of the Court of Appeal of 24th March, 2017 in Civil Appeal No. 157 of 2014 and predicated on the provisions of Articles 159(2)(a), (d) & (e), 163(4) and 259(1) of the Constitution, 2010; and
2.
Upon reading the undated supporting affidavit of the applicant and a further supplementary affidavit sworn on 15th March, 2018 and filed on 16th March, 2018; and
3.
Upon considering the written submissions by the applicant dated 29th May, 2017 wherein it is urged that:
(i)
This Court is vested with jurisdiction to grant the interlocutory Orders sought under Sections 21 and 24(1) & (4) of the Supreme Court Act, 2011;
(ii)
that the intended appeal involves a matter of general public importance; and
(iii)
The application for stay satisfies the conditions set out by this Court in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others; Application No. 5 of 2014.
4.
Upon reading the 1st respondent’s replying affidavit sworn on 23rd February, 2018 and filed on 8th March, 2018 and considering the written submissions of even date, wherein it is contended that:
(i)
The application is fatally defective since the applicant has not sought certification to appeal from the Court of Appeal or this Court;
(ii)
The orders sought cannot be granted in a vacuum since there is no pending appeal the substratum of which is sought to be preserved; and
(iii)
The application is merely intended to prolong the applicant’s stay on the premises, there being no arguable appeal","We have considered the application and response thereto and by unanimous decision of this Bench, pursuant to the provisions of Section 21(2) and 23(2)(b) of the Supreme Court Act, 2011 and Rules 21, 23 and 53 of the Supreme Court Rules 2012; we make the following Orders:
 
Orders
Reasons
1.
The Application dated 15th May, 2017 is hereby disallowed.
(i)This Court lacks jurisdiction to entertain the Application herein, there being no appeal on the basis of which a stay can be granted.
(ii) Although the application is predicated upon the provisions of Article 163(4)(b), no certification to appeal has been sought and granted either by the Court of Appeal or the Supreme Court.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/39/eng@2019-04-30
Petition 37 of 2014,Town Council of Awendo v Onyango & 13 others; Mohamed & 178 others (Interested Parties) (Petition 37 of 2014) [2019] KESC 38 (KLR) (Civ) (30 April 2019) (Judgment),Judgement,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",30 April 2019,2019.0,Nairobi,Civil,Town Council of Awendo v Onyango & 13 others; Mohamed & 178 others,[2019] KESC 38 (KLR)               ,,"A. Introduction
1.
This is a Petition of Appeal dated December 10, 2014 and filed on December 23, 2015 pursuant to its admittance by this court as one involving a matter of general public importance under articles 163(4)(b) and 163(5) of the Constitution. The appellant is challenging the entire Judgment and Orders of the Court of Appeal (Onyango Otieno, Azangalala & Kantai JJ.A) at Kisumu in Civil Appeal No 161 of 2010 delivered on the 18th day of October 2013. In certifying the Appeal as one involving a matter of general public importance, in Miscellaneous Application No 49 of 2014; (Mutunga CJ &P, Tunoi, Ibrahim, Ojwang, Njoki, SCJJ); this court stated:
“
……The issues of the intended appeal cut across the former and the current Constitutions and law regimes. It is important to reconcile these two regimes, and the instant case provides the occasion. The question whether the respondents in this case are entitled to the revisionary interest in unutilized portions of land, invokes critical sub-themes of jurisprudential significance and which, in every respect touch on matters of public interest.” [Emphasis added]
B. Background
2.
Sometime in 1976, in exercise of its powers of Eminent Domain, the Government of Kenya issued two Gazette Notices informing the public of its intention to acquire privately owned parcels of land in the then South Nyanza District. In doing so, the Government was acting pursuant to the provisions of section 75 of the retired Constitution and section 6(2) of the Land Acquisition Act of 1968 (Now repealed). The first was Gazette Notice No 2996 of 1968 (Legal Notice No 47 of 1968) dated 8th October, 1976 (herein Gazette Notice 2996); which in its preamble read as follows:
“
The Land Acquisition Act 1968 (No 47 of 1968)Notice of Intetion to Acquire Land in Pursuance of section 6(2) of the Land Acquisition Act 1968, I hereby give notice that the Government intends to acquire the following land for the South Nyanza Sugar Scheme in South Nyanza” [emphasis added].
3.
The second was Gazette Notice No 3737 (Legal Notice No 47 of 1968) dated 24th December, 1976, (herein after Gazette Notice 3737); which in its preamble read as follows:
“
The Land Acquisition Act 1968 (No 47 of 1968)Notice of Intention to Acquire Land in Pursuance of Section 6(2) of the Land Acquisition Act 1968. I hereby give Notice that the Government intends to acquire the following land for the South Nyanza Sugar Scheme (Awendo Township Expansion) in South Nyanza District”. [Emphasis added]
4.
The Government then proceeded to compulsorily acquire, various privately owned parcels of land. Some of the acquired parcels had been owned by the 1st to 13th respondents in this Appeal. Thus far, there was no legal dispute, until the year 2005, when the respondents herein filed suit in the High Court at Kisumu, in Civil Case No 133 of 2005; challenging the process of compulsory acquisition of the suit land and the allocation of unutilized portions to third parties by the Appellant.
","C. Analysis
(i) Issue for Determination
27.
Having carefully considered the grounds of appeal, the submissions of the parties, the authorities cited in support thereof, and the pronouncement of this court, admitting this appeal as one involving a matter of general public importance, it is clear to us that only one issue falls for determination. We hereby restate this single issue as being:
Whether a proprietor, whose land has been compulsorily acquired by the state, for a public purpose, in accordance with the Constitution and the Law, retains a reversionary interest in, or a pre-emptive right over any un-utilized portion of such land, should the public purpose for which it was acquired become spent?
(ii) What was the purpose for which the Suit Land was acquired?
28.
From the Record of Appeal, it is not in doubt that the suit land, was compulsorily acquired by the Government of Kenya, pursuant to the provisions of section 75 of the retired Constitution, and section 6(2) of the Land Acquisition Act 1968, (now repealed). It is also not in doubt that the proprietors of the land, including the 1st to the 13th respondents herein, were fully compensated in accordance with the applicable law. The compulsory acquisition was actualized vide the two Gazette Notices No. 2996 of October 8, 1976 and No 3737 of December 24, 1976. However, while it is clear that the parcels of land were acquired for a public purpose, what remains in contention is the specific nature of the purpose for which some of the parcels were acquired. [Emphasis Added].
29.
On the one hand, it is contended that the suit land was acquired for the sole purpose of establishing the South Nyanza Sugar Scheme In South Nyanza District. The proponents of this contention are the 1st to 13th respondents. They base their argument on the opinion of the then State Counsel, Mr Maroro, who on behalf of the Attorney General had submitted at the Court of Appeal (see Vol A Page 306, Para: 2), that the purpose of the acquisition was solely, for the establishment of the South Nyanza Sugar Scheme, and no other. This Opinion had also been expressed by the then Town Clerk of Awendo Town Council, Mr Barnaba Kosgei, in his replying Affidavit to the Originating Summons in the High Court.
30.
On the other hand, the appellant, the Interested Parties, and the Attorney General (in a departure from his earlier position at the Court of Appeal) contend that the acquisition of the suit land was for the twin purposes of establishing the South Nyanza Sugar Scheme and the Awendo Township Expansion. They submit that Gazette Notice No 2996 was issued to effect the establishment of the Scheme while Gazette Notice No 3737 was for the Township Expansion.
31.
Be that as it may, both purposes for which the various land parcels were acquired fall within the rubric of “public purpose”, within the meaning of section 75(1) of the retired Constitution of which the relevant provisions read as follows:
“
No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied:
(a)
the taking of possession or acquisition is necessary in the interest of defence, public safety, public order, public morality, public health, town and county planning or the development or utilization of property so as to promote the public benefits; and
(b)
the necessity thereof is such as to afford reasonable justification for the causing of hardship that may result to any person having an interest or right over the property; and
(c)
provision is made by a law applicable to that taking of possession or acquisition for the prompt payment of full compensation…”
32.
Section 6 of the Land Acquisition Act (now repealed) replicates the above provisions of the retired Constitution. On the face of the two Gazette Notices therefore, we find little difficulty in concluding that the Suit lands in question were acquired, on the one hand for town and county planning and on the other hand, for the development of, or utilization of the said lands so as to promote the public benefit. This then immediately leads us to determine the lingering controversy, as to whether the parcels of land in question were acquired solely for the establishment of the South Nyanza Sugar Scheme, or in addition thereto, for the expansion of the Awendo Township.
33.
Having taken note of the divergent opinions advanced by the parties regarding this issue, we hold that the proper basis for determining the specific nature of the purpose for which the suit lands were acquired, is the language used in the two Gazette Notices. Towards this end, Gazette Notice No 2996 states that the specified parcels of land are to be acquired for “ the South Nyanza Sugar Scheme” while Gazette Notice No 3737 states that the specified parcels are to be acquired for the South Nyanza Sugar Scheme (Awendo Township Expansion) in South Nyanza District.
34.
We also note from the Record, that the two Gazette Notices do not refer to the same parcels of land. On the contrary, the Notices are distinct and refer to different parcels of land. Thus Gazette Notice No 3737 refers to land title nos. North Sakwa/Kamasonga/204 (plot no. 204), North Sakwa/Kamasonga/34 (plot No 34), North Sakwa/Kamasonga/1081 (plot No 1081), North Sakwa/Kamasonga/1093 (plot No 1093), North Sakwa/Kamasonga/1111 (plot No 1111), North Sakwa/Kamasonga/1067 (plot No 1067), North Sakwa/Kamasonga/207 (plot No 207), North Sakwa/Kamasonga/45 (plot No 45), North Sakwa/Kamasonga/111 (plot No 111), and North Sakwa/Kamasonga/202 (plot No 202) in respect of the 2nd, 3rd, 4th, 5th, 8th, 9th, 10th, 11th and 12th respondents respectively (hereinafter the Suit Land).
35.
It is also noted from the Record (VolA pages 137 and 158) that land title No North Sakwa/Kamasonga/1193 (Plot No 1193) in respect of the 7th Respondent was not on the list of parcels of land acquired by the two Gazette Notices. The tentative conclusion regarding the said title therefore, is that it was never compulsorily acquired. Besides, it is noted from the Record that land title No. North Sakwa/ Kamasonga/ 46 (Plot No 46 ) in respect of the 1st respondent and Land Title No North Sakwa/ Kamasonga /168 (Plot No 168) in respect of the 13th respondent were acquired vide Gazette Notice No 2996.
36.
Finally, a perusal of the Record reveals the fact that some of the respondents herein, to wit, the 3rd, 9th, 10th, 11th and 12th were not the original proprietors of the parcels in question. However, they refer to themselves in their supporting affidavits as beneficial owners.
37.
Against this background, what meaning as to purpose ought to be attributed to the language in the two Gazette Notices? A plain reading of Gazette Notice No 2996 clearly indicates that the intention of acquiring the land parcels listed therein was for establishing the South Nyanza Sugar Scheme. This must be taken to refer to all that it entails to establish such a scheme, including the factory, sugar plantations, offices, plant and machinery and all necessary infrastructure. Towards this end, there is no dispute regarding the establishment of South Nyanza Sugar Scheme.
38.
As for Gazette Notice No 3737, it is stated that the listed parcels therein are to be acquired for the South Nyanza Sugar Scheme (Awendo township Expansion) in South Nyanza District. The operative words are the bracketed ones ie, “Awendo Township Expansion”. It was the Attorney General’s argument that the two Gazette Notices referred to one and the same purpose; the establishment of the South Nyanza Sugar Scheme. This was the same argument advanced by the 1st to 13th respondents. Much later in the appeal before the Supreme Court, the Attorney General would abandon this argument. It was now his submission that a plain reading of the two Gazette Notices reveals that under Gazette Notice No 2996 the parcels listed therein were acquired for the South Nyanza Sugar Company while Gazette Notice No 3737 was for Awendo Township Expansion. He faulted the Court of Appeal for treating the two acquisitions as if they were one and the same, when they were in fact, different.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/38/eng@2019-04-30
Application 21 of 2016,Golden Lime International Limited v Blue Sea Shopping Mall Limited & 3 others; National Land Comission (Interested Party) (Application 21 of 2016) [2019] KESC 32 (KLR) (29 April 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",29 April 2019,2019.0,Nairobi,Civil,Golden Lime International Limited v Blue Sea Shopping Mall Limited & 3 others; National Land Comission,[2019] KESC 32 (KLR)               ,,"Sometimes in 2008, the City Council of Nairobi, by an advertisement in a local daily, invited the private sector to partner with it in the development of markets at various locations in the City. Although Eastleigh Plot L.R No. 36/VII/1037 (the suit property) was not one of the plots earmarked for development of a market, its proprietor, the 1st respondent, prepared a detailed proposal and submitted it to the City Council. Subsequently, the City Council awarded a tender to the applicant to develop a market on that plot. Upon learning of the tender and contract, the 1st respondent filed a judicial review application and sought orders of certiorari to quash the tender and mandamus to compel the City Council to comply with the Public Procurement and Disposals Act.
(2)
Although the High Court found that the award of tender had flouted the Public Procurement and Disposals Act, it nonetheless declined to grant the reliefs sought on the ground that given other considerations including a dispute on the ownership of that plot pending before the Environment and Land Court, the reliefs sought were not efficacious. On appeal, the Court of Appeal set aside that decision and granted the 1st respondent the orders it had sought of certiorari and quashed the award tender. It also granted an order of mandamus compelling the City Council to comply with the Public Procurement and Disposals Act.
(3)
Aggrieved by that decision, the applicant sought the Court of Appeal’s certification under Article 163(4)(b) of the Constitution that its intended appeal to this Court involves matters of general public importance. The Court of Appeal found no merit in that application and accordingly dismissed it. The applicant has, vide its application dated 5th October 2016 brought under Article 163(5) of the Constitution, sought this Court’s review of the said decision of the Court of Appeal and an order granting it certification to appeal to this Court. That Application is pending before this Court.
(4)
In the meantime, the National Land Commission (the NLC) has applied to be enjoined as an interested party in the said application to clarify the status of the suit land as public property that was unlawfully alienated to the 1st respondent and that no structure should be erected thereon. Relying on the cases of Francis Muruatetu & Another Vs Republic & 5 Others, [2016] eKLR, Meme Vs Republic, [2004]1 EA, and Trusted society of Human Rights Alliance Vs Mumo Matemu & 5 Others, SC Petition No. 12 of 2013, the NLC argues that if it is not enjoined, the suit property may be illegally developed to the detriment of the Kenyan public.","(5)
The respondents find no merit in NLC’s application. They argue that this Court, having not granted the applicant certification to appeal, the said application is premature and bad in law. Moreover, the respondents further argue, the issue before court in this application is compliance with the public procurement law. The NLC, which has yet to proof that the suit land is public property, wishes to come on board and turn this application into an ownership dispute over the suit property. Citing several authorities, the respondents concluded that such an application is not legally tenable.
(6)
Having considered the matter, we agree with the respondents that the NLC’s application to be enjoined in this matter is for dismissing. In the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2014] eKLR, Petition No. 12 of 2013, this court defined an interested party as;
“
(18)
… one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause.”
(7)
Although the suit land may very well be public property and that the public may suffer prejudice if construction on it is allowed, on the authority of Attorney General v Kenya Bureau of Standards & Another [2018] eKLR, Court of Appeal Civil Application No. 132 of 2017; Kensalt Limited v. Water Resources Management Authority [2018] eKLR, Petition (Application) No. 8 of 2016; Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commisson & 3 Others [2017] eKLR, Petition No. 1 of 2017, and many others, it is trite that an interested party cannot be enjoined in a matter to obfuscate issues by raising a new cause of action.
(8)
It is clear from the material placed before us that the NLC wishes to be enjoined in this matter to urge the public’s alleged ownership of the suit property and stop construction on it. That material will completely alter the character of the issues before us in this application. On its own admission, the NLC knows of ownership disputes over the suit land pending before the Environment and Land Court and other courts. It should seek to be enjoined in those suits and therein seek a resolution of the ownership dispute and not by this application.
(9)
For these reasons, we find no merit in this application and we accordingly dismiss it. As to costs, the NLC being a public entity seeking to protect what it believes to be public property, we order that each party shall bear its own costs of this application.
",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/32/eng@2019-04-29
Civil Application 14 of 2018,Kibunja v Kibunja (Civil Application 14 of 2018) [2019] KESC 73 (KLR) (29 April 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"PM Mwilu,                                                                                                                          DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",29 April 2019,2019.0,Nairobi,Civil,Kibunja v Kibunja,[2019] KESC 73 (KLR)               ,,"Before the Court, is a Notice of Motion dated 12th June 2018 seeking orders for leave to appeal out of time against the judgment of the Court of Appeal delivered on 29th May 2013; stay of execution of the orders of the Court of Appeal; this Court’s direction as to the filing of the Notice of Appeal; and costs. The application is supported by the Applicant’s affidavit sworn on 12th June 2018.
2.
The background to this matter is that, on the 14th of February, 1992, the respondent filed an Originating Summons at the High Court seeking orders of adverse possession of 5 acres out of 14 acres in parcel No. Abothuguchi/Githongo/1825, 1826 and 1827 (formerly Abothuguchi/Githongo/494) (the suit property) as against the applicant. The respondent is the daughter of the elder Kibunja who died in or about 1948. The said Kibunja, had two wives one of whom was the respondent’s mother who had no male child and the other being the applicant’s grandmother who had sons. Apparently, under Meru customary law, a woman, especially a daughter could not get registered as proprietor of clan land. As her mother had no sons, during the land adjudication, the respondent thus opted to register the suit property in the name of the applicant who was by then a minor aged about 5 years old.
3.
The respondent nonetheless continued in occupation and developed a portion of the suit property where she built permanent and semi-permanent structures and planted coffee as well as other food crops. However, desirous of being issued with title to the suit land, sometimes in the 1970’s, the respondent sought the help of clan elders who directed that she be issued with title to a 5 acre portion out of 9.5 acres of the suit land. The respondent rejected that decision arguing that the applicant and her mother lived on the suit property as licensees and as such the title could not be split to include them as proprietors of the suit land. She therefore filed the said Originating Summons (OS) before the High Court to exert her right to the suit land.
4.
In a ruling delivered on 4th March, 1993, Kuloba J (as he then was) dismissed the Originating Motion on the ground that it was time barred by virtue of the Limitation of Actions Act. However, on Appeal, the Court of Appeal reinstated the suit for hearing on merit. Emukule J who heard the Motion granted the respondent only a life interest in the suit land.
5.
Aggrieved by that decision, the respondent once again appealed to the Court of Appeal which, by a judgement dated 29th May 2013, allowed her appeal with the result that the respondent is entitled to the entire suit land. The applicant wishes to appeal to this Court against that decision.
6.
It is the applicant’s case that the judgement of the Court of Appeal goes against previous decisions by the same Court thereby undermining the rule of law and the principle of legitimate expectation. That the decision also goes against the greater public interest and, if allowed to stand, will occasion substantial injustice to his brother, James Kimathi, who has a school by the name: Marathi Academy—Registration Number 204225—on the said portion of land which is the only private school in the whole of Marathi location, and that the school employees will also lose their employment which shall adversely affect their families and the applicant’s brothers who depend on that portion of the land and the school for their sustenance.",,Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/73/eng@2019-04-29
Civil Application 16 of 2018,"Moi Teaching & Referral Hospital Board,Attorney General & Minister for Health v Uasin Gishu Memorial Hospital Ltd,Minister for Health,Attorney General & Moi Teaching & Referral Hospital Board (Civil Application 16 & 25 of 2018 (Consolidated)) [2019] KESC 72 (KLR) (29 April 2019) (Ruling)",Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",29 April 2019,2019.0,Nairobi,Civil,"Moi Teaching & Referral Hospital Board,Attorney General & Minister for Health v Uasin Gishu Memorial Hospital Ltd,Minister for Health,Attorney General & Moi Teaching & Referral Hospital Board",[2019] KESC 72 (KLR)               ,,"By its Notice of Motion dated June 18, 2018, Moi Teaching and Referral Hospital Board (the 1st Applicant) seeks orders under Articles 159 and 163(4) of the Constitution, Sections 3, 14(5), 19, 21 (3), 31 (d) and (g) of the Supreme Court Act, Rules 17(3), 23, 31, 32, 33, 34 and 53 of the Supreme Court Rules 2013 (sic) and all other enabling provisions of law, for an extension of time to file a Notice of Appeal against the judgment of the Court of Appeal delivered on 6th October 2017.
2.
By their Notice of Motion dated 26th July 2018 (the 2nd application), the Minister for Health and the Attorney General also seek more or less the same orders.
3.
The subject matter of the suit giving rise to this application are Title Nos. Eldoret Municipality Block 7/125 & 126 (the suit property) (Original L.R. No. 2958 Eldoret Municipality) over which there has been an ownership tussle since 1998 pitying the applicants against the 1st respondent.
4.
The 1st application is based on the ground that the Applicant had no notice of delivery of the Court of Appeal’s judgment on 6th October 2017. The 1st applicant argues that it came to know of the entry of judgment against the applicants on 20th March 2018, when the 1st respondent sought compensation from it of Kshs. 1, 738, 630,267.00. Between that date and 18th June 2018 when it filed this application, the 1st applicant claims that it was involved in consultation with the 2nd and 3rd applicants. In the supporting affidavit of Silvia Nyariki, it made reference to the 3rd applicant’s letter of 25th May 2018 advising the 1st applicant to appeal as proof of the said consultations.
5.
On their part, the 2nd and 3rd applicants argue that though they were served with notice a day before delivery of judgment, the delivery notice was inadvertently filed away and the 2nd and 3rd applicants did not get to know of the judgment until 23rd February 2018, when the 1st respondent forwarded a copy the judgement to them seeking compensation in the sum of Kshs 1, 738, 630,267.00 by which time the period for filing a Notice of Appeal had lapsed. They filed a notice of appeal on 13th June 2018.","Opposing the application, the 1st respondent argues that contrary to the principles set out in the Nick Salat Case (supra), the applicants have not explained the delay between the time they learnt of the judgment and when they filed these applications. In the circumstances, the 1st respondent sees these applications as the applicants’ gimmick to continue denying it compensation for the suit property that the 1st applicant has unlawfully occupied for now over 20 years.
8.
It appears to be common ground that the 1st applicant was not given notice and the 2nd and 3rd applicants were given a day’s notice of the delivery of the impugned judgment of the Court of Appeal. As was stated in the cases of Paul Mungai Kimani & 20 others v Attorney General & 2 others [2018] eKLR, Application No. 17 of 2017 and Hassan Nyanje Charo v Khatib Mwashetani & 3 Others SC Application No. 15 of 2014; [2014] eKLR, an applicant cannot be blamed for the lower courts’ failures or omissions. In this case, we are satisfied by the explanation given that the delay between the date when the applicants learnt of the judgment and when they filed these applications was taken by consultations between the applicants.
9.
For these reasons, we find merit in this application and we accordingly allow it. The applicants shall file and serve fresh notices of appeal within 14 days of the date hereof failing which these applications shall stand dismissed with costs. The costs of this application shall abide the outcome of the appeal.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/72/eng@2019-04-29
Civil Application 1 of 2018,Mulima & 2 others (Suing as Representatives of Ex-East African airways Staff Welfare Association) v Attorney General & 8 others (Civil Application 1 of 2018) [2019] KESC 74 (KLR) (29 April 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",29 April 2019,2019.0,Nairobi,Civil,Mulima & 2 others (Suing as Representatives of Ex-East African airways Staff Welfare Association) v Attorney General & 8 others,[2019] KESC 74 (KLR)               ,,"Before the Court is an application dated January 22, 2018 premised upon Section 24 of Supreme Court Act, Rules 3 5 , 4 3 i and 23 of the Supreme Court Rules, 2012 seeking leave to appeal out of time and an order directing the Registrar of this Court to deem the petition and record of appeal as filed with leave. An amended application was filed on 24th May 2018 albeit without leave of the Court.
2
The applicants are chairman, secretary and treasurer of the Ex-East African Airways Staff Welfare Association the Association registered on 12th June, 2012 . They filed a representative petition in the High Court for the benefit of the members of the association and for all former Kenyan employees of the defunct East African Airways Corporation the corporation . Their claim was that when the corporation ceased operations on 13th January 1977 and they were declared redundant on 15th February 1977, as employees of the corporation engaged on diverse dates, they became entitled to their provident fund, redundancy payments, unpaid leave and other cessation of service benefits. The corporation, however, failed to pay them thus violating their Constitutional rights under Articles 20 1 , 27, 28, 29 f , 35, 40, 41, 43, 47, 48 and 57 of the Constitution of Kenya, 2010.
3
Save for the petitioners’ right to information which the High Court directed the 1st Respondent to provide them within 90 days and publish the names of those who were paid by the official receiver, as well those yet to be paid and the total amount being held by National Bank of Kenya for the petitioners, the High Court dismissed the petition on the grounds that the matter was not only statutorily barred but also unenforceable under the 2010 Constitution as the said Constitution has no retrospective application. To date, the 9th Respondent is yet to comply with the orders.
4
Aggrieved by that decision, the applicants appealed to the Court of Appeal. In its judgment delivered on the 24th of February 2017, the Court of Appeal dismissed the applicants’ Appeal No. 179 of 2015 in its entirety adding that the matter was res judicata as the East African Mediation Agreement Act had addressed the issue of the petitioners’ provident fund. The Court of Appeal also found that the applicants were guilty of laches which caused the respondents serious prejudice.","certificate of delay from the Court of Appeal and that the respondents will not suffer any prejudice if this application is allowed.
8
In response, through the replying affidavit sworn on 20th March 2018 by Paul Ndungi, the Secretary and Senior Legal Counsel with the 6th Respondent, the 2nd to 6th Respondents argued that leave to appeal out time is never granted as of right. It is an equitable remedy that is only available to a deserving party. Having failed to comply with the High Court direction to publish the names of the former employees of the corporation who had been paid and those not yet paid, the applicants are not parties deserving the exercise of this Court’s discretion in their favour.
9
The respondents further argued that the applicants are guilty of laches. To allow proceedings after a delay of 36 years during which the respondents have destroyed or lost their documents will deny them the right to a fair hearing and thus cause them great prejudice. Moreover, they concluded, the applicants have not satisfied the conditions set out in the Nicholas Salat case for allowing such an application. They therefore urged us to dismiss the said application with costs.
10.
Having perused the application and its annextures and considered the rival submissions of the parties, we find that it is the Court of Appeal which failed to supply the applicants with copies of the proceedings and judgment in time. The record shows that the judgment of the Court of Appeal that the applicants wish to appeal against was delivered on 24th February 2017. The applicants filed a Notice of Appeal and applied for a copy of the proceedings and judgment on 6th March 2017. The proceedings were supplied to them on 20th December 2018 and they filed their record of appeal out of time on 22nd January 2018.
11
In the circumstances, we allow this application. The applicants shall file a fresh record of appeal within fourteen 14 days of the date hereof. The costs of this application shall abide the outcome of the intended appeal.
",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/74/eng@2019-04-29
Petition (Application) 10 of 2018,Njenga v Republic & 3 others (Petition (Application) 10 of 2018) [2019] KESC 76 (KLR) (29 April 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",29 April 2019,2019.0,Nairobi,Civil,Njenga v Republic & 3 others,[2019] KESC 76 (KLR)               ,,"We have an application dated December 6, 2018 and filed in Court on 10th December 2018 for orders that Jacob Njenga Muiruri and Mark Kamau Njenga, the widower and son of Leah Waithira Njenga (the deceased), respectively, and the legal representative of the deceased’s estate be enjoined in this matter as the 1st and 2nd Petitioners in place of the deceased together with the costs of the application.
2.
The facts of this case are that the deceased instituted an appeal before this Court on 18th June, 2018. Unfortunately, she passed away on the 3rd of August 2018. Jacob Njenga Muiruri and Mark Kamau Njenga (the applicants/intended petitioners) have applied to be enjoined in this appeal in place of the deceased. Upon their application, on 7th November 2018, the High Court at Nyahururu granted them letters of administration ad litem for the purposes of their joinder in this appeal in place of the deceased.","Despite service, the 1st to 3rd Respondents have not responded to this application. Though he has also not put in any written response, when the matter came up for mention on 10th January 2019 before the Deputy Registrar, the 4th Respondent attended and stated that he has no objection to this application.
4.
In the circumstances, and there being no objection to the application, the same is hereby allowed with no order as to costs.
It is so ordered.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/76/eng@2019-04-29
Petition (Application) 38 of 2018,Nuri v Kombe & 2 others (Petition (Application) 38 of 2018) [2019] KESC 42 (KLR) (29 April 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          N Ndungu,                                                                                                                          I Lenaola",29 April 2019,2019.0,Nairobi,Election Petition,Nuri v Kombe & 2 others,[2019] KESC 42 (KLR)               ,,"
1.
On 21st September 2018, the Court of Appeal (Ouko, P, Musinga & Murgor, JJA) delivered a judgement in Election Petition Appeal No. 5 of 2018 as consolidated with Election Petition No. 1 of 2017, in which judgment it dismissed the appellant’s appeal for lack of jurisdiction. The judgment aggrieved the appellant and she moved to this Honourable Court on appeal. Her Petition of appeal is dated and filed on the even date of 26th October 2018.
2.
Upon being served with the petition, the 1st respondent filed a Notice of Motion application dated 12th November 2018. It is this application that is the subject of this ruling. The application seeks the following orders:
(1)
That this Honorable Court be pleased to strike out the Notice of Appeal filed on the 27th of September, 2018 and served on the First Respondent on the 24th of October, 2018.
(2)
That this Honourable Court be pleased to strike out the Record of Appeal filed on the 26th of October, 2018.
(3)
That the costs of this application be provided for.
3.
In her application, the 1st respondent asserts that the Notice of Appeal, which was filed timely on 27th September 2018, was served on her on 24th October, 2018, being nineteen days after the required time of within seven days of its lodging pursuant to Rule 32 of the Supreme Court Rules, and further that the Record of Appeal does not contain the record of proceedings before the Court of Appeal. She contends that failure to comply with the mandatory provisions of the Rules renders the Notice of Appeal fatally defective and that there are no valid reasons to justify failure to comply with these mandatory provisions of the law.
4.
The application is supported by a Supporting Affidavit, deponed by the 1st respondent in which she avers that failure of the appellant to effect service on her duly appointed firm of Advocates within the statutory timelines prejudiced her as she was unable to adequately prepare for the hearing of the appeal promptly.","In the matter before us, there is a petition of appeal duly filed upon payment of the prescribed fee and a Record of Appeal. Hence, prima facie, there is an appeal on record. However, the Record of Appeal lacks the record of proceedings of the Court of Appeal, is that fatal?
22.
Under Rule 33(4), the contents of a Record of Appeal (from a court or tribunal in its appellate jurisdiction) contains the following documents from the first appellate court: the certificate, if any, certifying that the matter is of general public importance; the memorandum of appeal; the record of proceedings; and the certified decree or order. This Court has timely reiterated that under Rule 33(6) a document omitted may be filed in a Supplementary Record without leave of the Court with fifteen days of filing of the Record of Appeal; and subsequently with leave of the Court, the same document may be filed.
23.
It therefore emerges that failure to include the ‘record of proceedings of the court of Appeal” in the Record of Appeal does not automatically render the appeal filed before this Court fatal. For if the law contemplates that such an omitted document may be filed later, the same law cannot be said to render a Record of Appeal with that omission outrightly fatal. However we hasten to add that where a required document lacks in the Record of Appeal, devoid of a sufficient explanation for the omission, is a ground for the striking out of that Record of Appeal.
24.
In the current matter, the appellant submitted that she promptly requested, for the certified copy of the typed proceedings and the decree on the 27th of September 2018. The appeal before this Court was filed on 26th October 2018, by which time the appellant states that the typed proceedings had not been received. We note that there is no evidence of any correspondence between the Court of Appeal Registry and the appellant between the time of the first letter requesting for the proceedings and the time of filing the Appeal in this Court. The letter of 1/11/2018 was filed after the lodging of the Appeal before this Court and the one on 15/11/2018 was filed after being served with this application, to strike out the Record of Appeal. Hence the appellant’s efforts and the Registry’s response(s) between the period of 27th September 2018 and 26th October 2018 are not well explained. Unfortunately, the respondents have not submitted to the lack of this information, save to say that the appellant had sufficient time of one month to collect the typed proceedings. They have not confirmed whether the proceedings were ready for collection in that period. Be that as it may, the three letters demonstrate that there was persistent inquiry at the Court of Appeal registry by the appellant for the proceedings.
25.
In the matter of Hassan Nyanje Charo v Khatib Mwashetani & 3 others [2014] eKLR, this Court buttressed the principles of access to justice in considering an application for extension of time where the delay was occasioned by the delay by the Court of Appeal in typing proceedings thus:
“
(27)
Counsel for the applicant has stated that he has exercised all due diligence to get the proceedings from the Court of Appeal, but to no avail. We note that the last correspondence in the record before us was on 29th January, 2014 and that could cast doubt on the measure of assertion of diligence; but there is nothing to show that the applicant has not made other efforts to inquire about the proceedings, or to show that the proceedings are now ready but remain uncollected. As no respondent has called into question the assertion that the proceedings are not yet available, we would not impugn the applicant’s claim of diligence.
(28)
Would it be in the interests of justice then to turn away an applicant who has, prima facie, exercised all due diligence in pursuit of his cause, but is impeded by the slow-turning wheels of the Court’s administrative machinery?”
26.
The upshot is that we find that the lack of filing of the record of proceedings of the Court of Appeal in the Record of Appeal cannot be attributed to the fault of the appellant, but the delay at the Court of Appeal in typing the proceedings.
27.
Further, we take note of Rule 33(5) of the Court Rules which states:
“
The Court may, on the application of any party, direct which documents or parts of documents should be excluded from the record and an application for such direction may be made orally”
This rule connotes that the Court may exclude a document from the Record. It therefore emerges that once a Record of Appeal has been filed, this Court has discretion to determine whether the matter can sufficiently proceed without particular documents. Recently, in Sammy Kemboi Kipkeu v Bowen David Kangogo & 2 others [2018] eKLR, this Court was invited to strike out a Record of Appeal for being incompetent for lack of the proceedings of one judge of the Court of Appeal. The Court declined the invitation holding that in any event, the inclusion of the court proceedings was not a mandatory requirement. It stated thus:
“
(28)
This takes us back to the 1st Respondent’s application dated 14th September, 2018. The only prayer remaining for consideration is the one seeking the striking out of the Record of Appeal filed on 17th August 2018 for being incomplete for lacking the proceedings by J. Mohammed, JJA. Is the lack of the same fatal? Upon perusal of the Rules, we find that under Rule 33(4) of the Court Rules, the appellate Judge(s)’ notes is not a mandatory requirement in the Record of Appeal. Rule 33(3) deals with a Record of Appeal where one is appealing from a court or tribunal exercising original jurisdiction. In this case, under Rule 33(3)(h), the trial judge’s notes of the hearing, is a mandatory inclusion in the record. The same is however, not a mandatory requirement under Rule 33(4) where it is an appeal from a court or tribunal in its appellate jurisdiction.
…
(29)
The upshot is that the lack of the proceedings of J. Mohammed, JJA from the Record of Appeal filed on 17th August, 2018, by itself, is not sufficient to warrant the striking out of the Record of Appeal.”
28.
The upshot is that, it is our determination that in the matter before us, the absence of the proceedings of the Court of Appeal is not fatal to the hearing and determination of this matter. We hence decline the respondents’ invitation to struck out the Record of Appeal on that basis.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/42/eng@2019-04-29
Civil Application 2 of 2019,Sundowner Lodge Limited v Kenya Tourist Development Corporation (Civil Application 2 of 2019) [2019] KESC 71 (KLR) (29 April 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"DK Maraga,                                                                                                                          PM Mwilu,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          I Lenaola",29 April 2019,2019.0,Nairobi,Civil,Sundowner Lodge Limited v Kenya Tourist Development Corporation,[2019] KESC 71 (KLR)               ,,"The applicant’s Notice of Motion dated 24th January 2019 and supported by the affidavit of Samuel Waruguru Kimotho, a director of the applicant, is brought under Section 3 of the Supreme Court Act and Rules 3(2) & (5), 31 and 53 of the Supreme Court Rules as well as other enabling provisions of the law. It seeks an extension of time to file a Notice of Appeal against the judgement and orders of the Court of Appeal (Ouko, Kiage, and Murgor JJA) delivered at Nairobi on 28th Day of September 2018.
2.
The application is based on ground that counsel for the applicant was unaware of the amendment to the Supreme Court Rules allowing a party to file a Notice of Appeal even before obtaining certification/leave. Relying on the authorities of Belinda Murai & 9 Others vs Amos Wainaina [1979] eKLR; Tropical Africa Bank Ltd vs Grace Were Muhwana Civil Application No. 3 of 2012[2012] UGSC 8, (Ugandan SC); Horizon Coaches Ltd Vs Edward Rurangaranga & Another [Civil Application 18 of 2009 [2009] UGSC 7; Onyebuchi Iroegbu & others vs Richard Okwardu & Others Nigeria SC 291 of 1989; and The Attorney General vs Oriental Construction Co. Ltd [SC Application 7/90, the applicant argues that a procedural error of counsel should not be visited upon a litigant and urges this Court to grant it leave to file a Notice of Appeal out of time adding that no prejudice will be caused to the respondent. The applicant also relies on the case of Nicholas Kiptoo Arap Korir Sala vs Independent Electoral & Boundaries Commission & 7 Others [2014] eKLR, Application No. 16 of 2014 and urges us to exercise our unfettered discretion and allow this application.
3.
","Basing their arguments on the averments in the replying affidavit and written submissions, counsel for the respondent dismissed this application as lacking in merit. Citing the case of Abok James Odera T/A A.J Odera & Associates vs John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, counsel argued that a Notice of Appeal is a jurisdictional prerequisite that every litigant should be aware of. They urged that it is every counsel’s duty to keep abreast with legal developments. In the circumstances, they argued that indolence or ignorance of the law, to make it worse, counsel’s ignorance of the law, is therefore not one of the grounds in the Nick Salat case for extending time. They argued that as was stated in the case of Charo vs Mwashetani & 3 Others [2014] eKLR, timelines are a vital ingredient for effective governance under the Constitution and urged us to dismiss this application with costs.
4.
Having considered the parties’ rival submissions, we find that counsel’s ignorance of the amendment of the Supreme Court Rules in 2012 making it unnecessary “to obtain … certification before lodging the notice of appeal”, was an innocent mistake which they have not sought to hide. Moreover, a delay of only four months is not inordinate. In the circumstances, we allow this application. The applicant shall file and serve its notice of appeal within fourteen (14) days of the date hereof failing which this application shall stand dismissed with costs. The costs of this application shall abide the result of the intended appeal.",Allowed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/71/eng@2019-04-29
Miscellaneous Application 18 of 2018,Mwangi & 2 others (As the Administrators of the Estate of Kenneth K Mwangi - Deceased) v City County of Nairobi & another; Fidelity Commercial Bank (Interested Party) (Miscellaneous Application 18 of 2018) [2019] KESC 35 (KLR) (29 March 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"MK Ibrahim,                                                                                                                          JB Ojwang,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",29 April 2019,2019.0,Nairobi,Civil,Mwangi & 2 others (As the Administrators of the Estate of Kenneth K Mwangi - Deceased) v City County of Nairobi & another; Fidelity Commercial Bank (Interested Party) ,[2019] KESC 35 (KLR)               ,,"
1.
Upon perusing the Notice of Motion application by the Applicants dated 29th June, 2018 and filed under Certificate of Urgency by the Applicants on 3rd July, 2018 brought under Sections 1A, 1B & 3A of the Civil Procedure Act, Rules 33 and 53 of the Supreme Court Rules, Order 50 Rule 6 and Order 51 of the Civil Procedure Rules and all enabling provisions of the Law, seeking for extension of time to file an appeal out of time against the Judgment and Orders of the Court of Appeal in Civil Appeal No. 228 of 2008; and
2.
Upon reading the Applicants’ grounds in support of the Application, the Supporting Affidavit sworn on 29th June, 2018; and
3.
Upon considering the Applicant’s written submissions dated 3rd September, 2018 and filed on 5th September, 2018 wherein the Applicants submit that the delay in filing the appeal was occasioned by the delay in receiving the typed and certified copy of the proceedings in the Court of Appeal, having only received the certified proceedings once the time for lodging the Petition to the Supreme Court had lapsed, and that: (a) the delay of less than three months cannot be considered inordinate; (b) the prejudice to the Applicant would be substantial as the denial of the right to be heard would lead to the loss of Kshs. 400 million; and (c) there would be no prejudice suffered by the Respondents as they would be able to challenge the Petition when presented in Court;
4.
Further, it was submitted by the Applicants that the Preliminary Objection raised by the 2nd Respondent that this Court has no jurisdiction to determine this matter and that the Applicants had failed to obtain certification in respect of any appeal to be filed, is ideally misplaced at this point in time because the Petition is not yet before the Supreme Court for its determination; and
5.
Upon reading the 2nd Respondent’s Preliminary Objection dated 1st August, 2018 and filed on 2nd August, 2018 wherein it submits that this Court has no jurisdiction to determine this matter and that the Applicants had failed to obtain a certification in respect of the intended appeal as required by Rule 24(1) of the Supreme Court Rules, 2012; and
6.
Upon considering the 2nd Respondent’s written submissions dated and filed on 27th September, 2018 in which it has urged that there is inordinate and unexplained delay as the Applicants have not demonstrated how they made the alleged inquiries and follow-ups on the typed proceedings or disclosed when they collected the certified typed proceedings and that in any event, Rule 33(3) of the Supreme Court Rules, 2012 does not make mention of certified typed proceedings as one of the pre-requisites for filing a Record of Appeal. And that the typed proceedings in this matter were ready for collection from 15th March, 2018 making it unclear why the Applicants took more than three months to file this Application;
7.
","We find as follows;
a.
As provided under Rule 53 of the Supreme Court Rules, 2012, the Court may give further directions and extend the time limited under the Rules upon consideration of prevailing circumstances.
b.
In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014 eKLR] this Court held that the discretionary power provided for under Rule 53 will not be exercised where one has not acted equitably since the extension of time itself is a creature of equity.
c.
In Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] eKLR this Court found that a delay of 4 months in obtaining the typed proceedings was sufficient reason to justify the delay in filing a Petition.
d.
The Applicants here do not account sufficiently for the nearly 3 months delay (from the date when the typed proceedings were ready for collection) in filing the present Application other than to state that they made repeated inquires to follow up on the status of the typed proceedings.
e.
The question of prejudice has not been addressed by the Respondents who would be best placed to state what prejudice they may suffer should the Application be granted. That fact notwithstanding and while the delay has not been satisfactorily explained, on the face of it, no prejudice would be suffered by them.
f.
On the Court’s jurisdiction to extend time, this Court settled that question in John Ochanda v Telkom Kenya Limited [2014] eKLR where we stated thus: “We have already stated the Court’s jurisdiction to extend time. We reiterate that the question of jurisdiction to extend time to file a notice of appeal to appeal to the Supreme Court is not an issue subject to controversy. The notice of appeal is provided by rule 31 of the Supreme Court, Rules 2012. Further, the power to extend time is provided for by Rule 53 of the same Court Rules. These Supreme Court Rules are enforced by the Supreme Court as provided by Article 163(8) of the Constitution which….”
g.
The second aspect of this Court’s alleged lack of jurisdiction as raised by the 2nd Respondent is the lack of certification and/or there being no matters of constitutional interpretation and application in the intended appeal. That matter is premature and can only be properly determined when there is a Petition before the Court routing specific issues that may raise jurisdictional questions. At this stage, there is nothing before us to point us to that issue.
h.
We note, lastly, that the Applicants partly invoke the jurisdiction of this Court by citing Rules applicable in the High Court being the Civil Procedure Rules. Those procedural Rules are not applicable before this Court.
8.
Without a satisfactory explanation as to delay, the present Application is one for dismissal which we hereby do.
9.
Having therefore considered the Application and affidavit in support thereto, the preliminary objection in opposition thereof and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/35/eng@2019-03-29
Civil Application 7 of 2018,Sarah Anyangu Ochieng v Technical University of Kenya (Civil Application 7 of 2018) [2019] KESC 34 (KLR) (29 March 2019) (Ruling),Ruling,Supreme Court,Supreme Court,"JB Ojwang,                                                                                                                          MK Ibrahim,                                                                                                                          SC Wanjala,                                                                                                                          NS Ndungu,                                                                                                                          I Lenaola",29 March 2019,2019.0,Nairobi,Civil,Sarah Anyangu Ochieng v Technical University of Kenya,[2019] KESC 34 (KLR)               ,,"Upon perusing the Notice of Motion Application by the Applicant dated 24th April, 2018 and filed on 25th April, 2018 brought under Rules 31(1) and 53 of the Supreme Court Rules, 2012 seeking an extension of time to file an appeal out of time against the Judgment and Orders of the Court of Appeal in Nairobi Civil Appeal No. 78 of 2018; and
2.
Upon reading the Applicant’s grounds in support of the Application, the Supporting Affidavit sworn on 24th April, 2018; and
3.
Upon considering the Applicant’s written submissions dated 25th May, 2018 and filed on 29th May, 2018 wherein the Applicant submits that the delay in filing the appeal was occasioned by the fact that the Court of Appeal had given a Judgment date for 26th January 2018 but did not deliver any Judgment on that date; and, that the Applicant only became aware that a Judgment had been delivered when her advocates received a letter dated 12th April 2018 from the Respondent’s Advocates demanding payment of costs by which time the 14 days period for filing an appeal to this Court had lapsed; and
4.
Upon reading the Respondent’s Replying Affidavit sworn on 8th June 2018 and filed on 11th June 2018 in which it opposed the Application arguing that the same was brought inordinately and with undue and unexplained delay, and, that all parties were called to attend delivery of the Judgment on 21st March 2018 but the Applicant’s advocates did not show up; and that, in any event, the filing of the present Application is an afterthought; and further, that no certification under Article 163(4)(b) of the Constitution was obtained at the Court of Appeal prior to its filing; and
5.
Upon considering the Respondent’s written submissions dated 8th June 2018 and filed on 11th June, 2018 in which, the Respondent has argued that the jurisdiction of this Court has not been properly invoked under Article 163 of the Constitution as read with Rule 30(2) of the Supreme Court Rules; and, that the Application is otherwise an abuse of Court process fit only for dismissal;","We find as follows;
(a)
The jurisprudence of this Court on the considerations for grant or denial of an application for extension of time was well expressed in Charo v Mwashetani and 3 others (2014) KLR-SCK and Application No.16 of 2014, Nicholas Kiptoo Arap Korir Salat v IEBC and 7 others among other cases.
(b)
In determining such an application, the Court has to consider whether the explanation given for any delay is reasonable and credible. That there also exist extenuating circumstances to enable the Court exercise its unfettered jurisdiction. The delay, in any event, should not be so inordinate as to show that an applicant has been slothful and filed such an application as an after-thought.
(c)
In the present case, the delay is of thirty one (31) days explained by non-attendance at the delivery of the Court of Appeal Judgment on 21st March 2018 because no notice of such delivery was given to the Applicant’s advocates, a claim vehemently denied by the Respondent. We find that explanation not tenable in view of the fact that the Court of Appeal record, which would have shown whether notice was given or not has not been placed before us and there is no denial of the Respondent’s contention that such a notice was issued hence the reason its advocates attended Court.
(d)
More fundamentally, even if the delay is excusable, we note that the Respondent has raised the issue of the jurisdiction of this Court to determine the intended appeal. In other instances, we have declined to address the issue of jurisdiction in an application for extension of time to file an appeal. In this case however, the issue is glaring and must be addressed at this stage. We say so because we have read the Judgment of the Court of Appeal and perused the draft Notice of Appeal attached to the Applicant’s Affidavit in support. The Notice seeks to challenge “the whole decision that the appeal lacked merit”.
(e)
The draft Notice of Appeal does not however indicate whether the intended Appeal is to be filed under Article 163(4)(a) of the Constitution as a matter of right or 163(4)(b) as a matter of great public importance.
(f)
It is not for this Court to speculate on whether the intended Appeal falls into either of the two categories of appeals before it. Without clarity on the crucial question of the jurisdiction being invoked, the intended appeal is rendered vague, frivolous and untenable.
7.
Having therefore considered the Application, the Affidavit in support and Supplementary Affidavit filed in support thereto, the Replying Affidavit in opposition thereof and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following Orders under Section 23(2)(b) of the Supreme Court Act, 2011 and Rules 21 and 23 of the Supreme Court Rules, 2012;",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/34/eng@2019-03-29
Election Petition Appeal (Application) 38 of 2018,Sheikh v Hathe & 3 others (Election Petition Appeal (Application) 38 of 2018) [2019] KESC 31 (KLR) (29 March 2019) (Ruling),Ruling,Supeme Court,Supreme Court,"MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu, I Lenaola",29 March 2019,2019.0,Nairobi,Election Petition,Sheikh v Hathe & 3 others (Election Petition Appeal (Application) 38 of 2018) ,[2019] KESC 31 (KLR) ,,"
A. INTRODUCTION
1.
The Application before us emanates from the Ruling of the Court of Appeal—Election Appeal (Application) No. 261 of 2018—in which the said Court struck out the Applicant’s Notice and Record of Appeal on grounds that the Court of Appeal had no jurisdiction to hear election petition appeals concerning membership to a County Assembly.
2.
The Application, dated 20th December, 2018 and filed under a certificate of urgency is seeking the following orders:
(a)
This application be certified urgent and allocated an early hearing date.
(b)
Pending the hearing and determination of the Application and the intended appeal, there be a stay of execution against the Ruling of the Court of Appeal in Election Appeal No. 32 of 2018; Mohamed Ali Sheikh v. Adbiwahab Osman Hathe & 3 Others delivered on 19th December, 2018.
(c)
Pending the hearing and determination of the Application herein and the intended appeal, a conservatory order do issue against the Speaker of the County Assembly of Garissa restraining him from declaring the seat of the Applicant vacant. (sic)
(d)
Pending the hearing and determination of the Application herein, a conservatory order do issue restraining the 3rd and 4th Respondents from announcing or conducting elections for Member of the County Assembly, Abakaile Ward, Garissa County.
(e)
Pending the hearing and determination of the Application herein and the Intended appeal, this Honourable Court be pleased to issue a conservatory order to stay the execution of the judgment and decree of the High Court at Garissa delivered on 29th August, 2018 in Garissa Election Petition No. 6 of 2017; Adbiwahab Osman Hathe v. Mohamed Ali Sheikh & 3 Others.
(f)
The Applicant be at liberty to apply for further orders and or directions as the Honourable Court may deem fit and just to grant.
(g)
The costs of this Application be costs in the cause.
3.
On 21st December, 2018, the Application was certified urgent by a single Judge of this Court (Wanjala SCJ) who directed the Deputy Registrar to conduct a pre-trial conference. Pursuant to those directions, the Applicant filed submissions dated 17th January, 2019, the 1st Respondent filed a Replying Affidavit sworn on 25th January, 2019, while the 2nd, 3rd and 4th Respondents filed submissions dated 24th January, 2019. On 29th January, 2019, the Chief Justice constituted this 5 Judge bench of the Court to determine the Application.
4.
The Application is premised on the following summarised grounds:
(a)
The Court of Appeal struck out the Applicant’s Record and Notice of Appeal thereby activating the execution of the judgment of the High Court dated 29th August, 2018 which had annulled the election of the Applicant and further directed the 3rd and 4th Respondent to conduct a fresh election for the position of member of County Assembly, Abakaile Ward, Daadab Constituency, Garissa County.
(b)
The Court of Appeal declared that it had no jurisdiction to hear and determine appeals relating to members of a County Assembly arising from decisions of the High Court.
(c)
By operation of the law, once served with the Order and decree of the High Court, the Speaker of the County Assembly of Garissa will declare the Applicant’s seat vacant.
(d)
The 3rd and 4th Respondents will also be obliged to commence the process of conducting a fresh election for the position of Member of County Assembly, Abakaile Ward, Daadab Constituency, Garissa County.
(e)
In the event that the election is conducted as ordered by the Court of Appeal and in the event that the intended appeal herein succeeds, the decision of this Court will be rendered nugatory, an academic exercise and overtaken by events.
(f)
The orders sought will not prejudice the Respondents and are in the public interest.
(g)
The appeal is arguable and has overwhelming chances of success.
B. BACKGROUND
5.
Following the General Election held on 8th August, 2017, the Applicant was declared as the duly elected member of the County Assembly for Abakaile Ward in Daadab Constituency. Aggrieved by that declaration, the 1st Respondent filed an election petition—No. 1 of 2017—at the Chief Magistrate’s Court in Garissa. Upon hearing the matter, the Chief Magistrate (Maundu CM) dismissed the petition and held that the declared results reflected the will of the people of Abakaile Ward.
6.
Aggrieved, the 1st Respondent filed an appeal at the High Court in Garissa—Election Petition No. 6 of 2018—seeking to overturn the decision of the Chief Magistrate. The High Court, (Dulu J) allowed the appeal, set aside the Judgment of the Chief Magistrate’s Court and ordered the Independent Electoral and Boundaries Commission to conduct a fresh election in accordance with the law.
7.
Following the High Court decision, the Applicant filed an appeal at the Court of Appeal in Nairobi—Election Petition No. 32 of 2018—challenging the decision of the High Court to nullify the election and order a fresh election. Before the appeal was heard on merits, the 1st Respondent filed an application seeking to strike out the Applicant’s Notice of Appeal and also a Preliminary Objection challenging the jurisdiction of the Court of Appeal to hear the appeal. In a Ruling delivered on 19th December, 2018 and indicated as Election Petition Appeal (Application) No. 261 of 2018, the Court of Appeal (Visram, Nambuye, Musinga, Gatembu & Odek, JJA) upheld the Preliminary Objection and struck out the Notice of Appeal for want of jurisdiction. As a consequence, the record of appeal filed in Election Petition Appeal No. 32 of 2018 was also struck out.
8.
Upon delivery of the Court of Appeal decision, on 21st December, 2018, the Applicant filed the present Application seeking stay Orders against both the High Court and the Court of Appeal decision. Subsequently, on 21st January, 2019, the Applicant filed a Petition of Appeal before this Court dated 18th January, 2019 seeking a reversal of the Court of Appeal decision. It is the stay application which is the subject of this Ruling.","D. Analsyis and Determination
12.
At the outset, we note that the Applicant filed the present application without first filing a substantive appeal before the Court. The Application was in fact filed on 21st December 2018 while the appeal was filed on 21st January 2019, a month after the filing of the Application. In that regard, we have stated in the past that an interlocutory application cannot originate proceedings before the Court. (See the case of Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 Others SC Petition No. 27 of 2014; [2014] eKLR.) Such a stand-alone application will not generally be considered as it is not predicated upon a substantive matter before the Court and remains unknown in law. In this case however, the Applicant subsequently filed his Petition of Appeal, dated 18th January, 2019 enumerating the grounds in which the intended appeal stands and the consequential orders that he seeks. We would not ordinarily consider the Applicant’s Application which was unprocedurally filed. Nonetheless, we find that at the time the Chief Justice constituted this Bench, on 29th January, 2019, the Applicant had already filed his appeal before the Court. In the interests of justice therefore, we deem this Application as properly filed in order to avoid unnecessary delay in determining it, especially considering the nature of elections petitions which are regulated by time bound procedures.
13.
Moving on to the merits of the Application therefore, the Applicant has urged us to grant stay of execution against the Ruling of the Court of Appeal and the Judgment of the High Court delivered on 19th December, 2018 and 29th August, 2018, respectively. In our previous decisions, we have considered the purpose of a stay order and particularly in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others SC Application No. 5 of 2014; [2014] eKLR, we held that a stay order “denotes that no party nor interested individual or entity is to take action until the Court has given the green light.” Further, in the case of Board of Governors, Moi High School, Kabarak & another v. Malcolm Bell SC Petition No. 6& 7 of 2013; [2013] eKLR we held that we had jurisdiction to grant stay orders for the purpose of “safeguarding the character and integrity of the subject-matter of the appeal, pending the resolution of the contested issues.”
14.
It is therefore the law that stay orders are generally temporary measures meant to preserve the subject matter of an appeal, pending the final determination of the case before the Court. In this case, as is evident in the Petition of Appeal now before us—Petition 1 of 2019—the Petitioner (the Applicant herein) seeks to appeal the Ruling of the Court of Appeal that struck out his Notice and Record of Appeal on ground that it had no jurisdiction to hear appeals arising from the election of a member of a County Assembly. Consequently, the question for determination in the intended appeal, is whether the Court of Appeal has such jurisdiction. If we find that the Court of Appeal has jurisdiction to hear appeals arising from the election of a member of a County Assembly, it would then mean that the Court of Appeal wrongly struck out the Applicant’s Notice and Record of Appeal and certain consequential orders would have to be issued.
15.
In the above context and on considering the matter, we have difficulties in granting the Applicant’s prayer for stay against the Ruling of the Court of Appeal. We say so because, even if the appeal may be arguable, which we do not dispute, staying the Court of Appeal’s Ruling is unnecessary and would serve no purpose as there is no subject matter which is required to be preserved. The Court of Appeal only struck out the Notice and Record of Appeal without more. What then is to be stayed? We submit, nothing.
16.
We also note that the Applicant seeks a conservatory order against the Speaker of the County Assembly of Garissa to restrain him from declaring a vacancy in the seat of the member of County Assembly for Abakaile Ward. Further, the Applicant also seeks to restrain the 3rd and 4th Respondents from conducting fresh elections in that Ward. More particularly, the Applicant seeks a stay of execution against the Judgment and Order of the High Court if we are to grant those orders.
17.
In that regard, we are certain that, the High Court decision which nullified the Applicant’s election is not the subject of appeal before us. Since the Court of Appeal found that it had no jurisdiction to hear appeals arising from the elections of the member of County Assemblies, it did not determine the question of the validity of the election for the member of County Assembly for Abakaile Ward. As a result, the High Court decision was never determined on appeal. Indeed, in his Petition of Appeal, the Applicant appreciates the limited issue before us, when he seeks the prayer for the remittal of the matter to the Court of Appeal for hearing on merit. Therefore, since the question of the validity of the election of the member of County Assembly of Abakaile Ward is not before us, we cannot grant a stay order on an issue that cannot be legitimately solved by this Court. Accordingly, we find no basis for granting the stay orders or indeed any other orders sought.
18.
The Application, on merit is therefore one for dismissal which we hereby do. As for costs, the Applicant must bear the same.",Dismissed,https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/31/eng@2019-03-29